not caution him not to try to be "smart" or flippant in his replies? Why not caution him that he should carefully understand a question before he attempts to answer it; to try to make his answers short and responsive, and not volunteer matters about which he is not questioned? ... Why should not an advocate test his own witnesses by cross-examination beforehand in his office? It often relieves their minds very much, because they not infrequently are afraid that when they mount the witness stand, their whole past will be raked up by the cross-examiner, and this fear often makes them hesitate to tell all they really know. Such a rehearsal is good for the examining counsel as well. It teaches him how to manage and handle his own witnesses when he reaches the court room, and if he is careful to confine these rehearsals to the manner only and not the matter of the testimony, he will find them of the greatest service at the trial, both to himself as well as the cause he represents.. 270. ARTHUR C. TRAIN. The Prisoner at the Bar. (2d ed. 1908. p. 233.) What the witness frequently does is to discuss the matter with his friends who were present on the occasion in question, and, as it were, form a sort of "pool" of their common recollections, impressions, and beliefs. One suggestion corrects or modifies another until a comparatively lucid and logical story is evoked. When this has been accomplished the witness mentally exclaims: "Of course! That was just the way it was! Now I remember it all!" The time is so distant that whatever the final crystallization of the matter may be, it is far from likely that it will thereafter be shown to be inaccurate by any piece of evidence which will present itself to the witness and his friends. The account thus developed by mutual questions and “refreshing" of each other's recollection becomes, so far as the parties to it are concerned, the fact. The witness is now positive that he did and said exactly so and so, and nothing will swerve him from it, for inherently there is nothing in the story or its make-up that affords any reason for questioning its accuracy. This story repeated from time to time becomes one of the most vivid things in the witness's mental experience. He repeats it over and over, is cross-examined by his own attorney upon it, incorporates it in an affidavit to which he swears, and when he takes the stand recounts these ancient happenings with an aggressiveness and enthusiasm that bring dismay to the other side. But what a farce to call this recollection! What is this circumstantial romance when it comes to be analyzed? Jones, a friend of Smith the prospective witness, is anxious to establish an alibi, and asks Smith if he doesn't remember meeting him in the club on February 12, two years before. Smith has no recollection of it at all, but Jones says: "Oh, yes, you were going to the theater with Robinson." Of course, if Jones is so sure, Smith naturally begins to think it is probably the fact, and he does remember vaguely that he and Robinson spent an evening together. So he consults his diary and finds it recorded there that he did attend the theater on the day in question with Robinson. He does not remember the play, but Robinson recalls that it was "The Chinese Honeymoon," and believes that they dined together first at the club. Smith now thinks he remembers this himself. Then Robinson suggests that they probably went to the theater in a cab. They look in a file of old papers and find that it was raining. That settles it of course, they went in a cab. The next question is the hour. They have no recollection of being late, so they must have arrived on time. Well, the paper says the play commenced at eight, and it takes a cab about twenty minutes to get from the club to Daly's Theater, so it is reasonably clear that they must have started a little before eight. Smith unconsciously is persuaded to believe that if Jones was right about their going to the theater, he must also have been in the club at the time he says he was there. Both he and Robinson recall that Jones was always hanging round the club two years ago, and as neither can remember an evening when he wasn't there, they decide he must have been there that night. Robinson has a dim recollection that they had a drink together. That is a pretty safe guess and has all the air of verisimilitude. In an hour or two Smith is ready to swear positively from recollection that he dined with Robinson at the club on February 12, two years ago, met Jones, had a drink with him, that this occurred at seven fifty-five, that it was raining, that they took a cab, etc. In its elements this testimony is entirely hearsay upon the only vital point, i.e. Jones's presence in the club at that time, and the immaterial remainder is made up of equal parts of diary, newspaper, playbill, weather report, usual custom, reliance on Robinson's alleged recollection, and belief in Jones's innocence. He has practically no actual memory of the facts at all, and the only thing he really does remember is that a long time ago he did attend some theater with Robinson. 271. THE HOSPITAL CASE. Court. 1910. p. 79.) One of the most remarkable cases of suggestive evidence came under my own observation some years ago when I was defending one of the nurses of the Mills Training School a most estimable young man - who had been indicted for deliberately choking to death a patient in the Insane Ward at Bellevue Hospital. A reporter of the Journal had made a contract with his newspaper for $150 to feign insanity and get himself committed to the insane ward at Bellevue Hospital for the purpose of writing an article upon the treatment of the insane for publication in the Journal. During his first night in the hospital one of its patients died, and the reporter conceived the idea of weaving around this occurrence a tragic (though false) story of the abuse of the insane, resulting in death. In his article he claimed to have seen two trained nurses (one of whom was this young man) strangle this patient to death because he would not eat (FRANCIS L. WELLMAN. Day in his supper. He graphically de scribed how these nurses had wound a towel around the insane man's throat and had twisted it until the patient was strangled to death. Newspaper pictures, occupying a full page of the Journal, were published, purporting to show all the details of the alleged process, in vogue at the hospital, of strangulation by means of a towel. The indictment of this young man for murder followed the Journal exposure of these alleged hospital abuses. The whole community was wrought up to a high pitch of excitement. At the trial the perjurylying reporter, as a witness for the prosecution, told the same story, but was so thoroughly discredited and brought to bay on the second day of his lengthy cross-examination that he fled the town, writing from Philadelphia to his mother in this city that he dare not ever return to New York. This fact, however, could not be communicated to the jury, during the trial, still unfinished, and the greatest difficulty to overcome was the fact that three insane patients were brought from the same hospital by the Assistant District Attorney, and called as witnesses, and (being found by the court to have sufficient intelligence) were allowed to testify to all the alleged details of the murder as they themselves had witnessed. All three of these insane patients had seen and studied the pictures and descriptions published in the Journal, and these pictorial reproductions of occurrences alleged to have taken place in their own wards at the asylum, had served as such vivid, though false suggestions to their diseased minds (already naturally antagonistic to their keepers and nurses) that they afterwards honestly believed and felt warranted in taking an oath that they themselves had actually witnessed these very occurrences that had also been sworn to by the reporter. These three witnesses as many people suffering from certain forms of insanity are quite capable of doing gave their testimony in the most remarkably graphic and convincing manner, and it made such a profound impression upon the court and jury, and the prosecution was so bitter and determined, that it seemed almost impossible to prevent the conviction of my client. The jurors, however (having been carefully chosen by both sides from "special panel"), were unusually intelligent and competent to weigh carefully the false (though honest) testimony of these three witnesses against certain scientific and medical testimony offered in behalf of the defense which conclusively showed that the deceased could not have been strangled to death, and this very long trial ended in a prompt acquittal of the defendant. This case is a striking illustration of the dangerous effect of leading and false suggestions upon minds susceptible of such influences, and in this instance came very near resulting in the conviction and possible execution of an entirely innocent and very worthy young man. 272. PUYENBROECK'S CASE. (GUY M. WHIPPLE. (GUY M. WHIPPLE. Journal of American Institute of Criminal Law and Criminology, 1913, Vol. III; summarizing Les Témoignages d'Enfants dans un Procès Retentissant, by J. VARENDONCK, in Archives de Psychologie, XI; July, 1911, pp. 129-171.) The district in Belgium in which the crime occurred had been aroused by three previous similar crimes violation and murder of young girls committed within a single month. When the 9-year-old Cecile De Bruycker (C) was killed on Sunday, June 12, 1910, in daylight and within a short distance of her home, the countryside was in consternation and rage. The child's movements were known up to 4 o'clock, when she was playing with two other little girls, and the crime was committed between 4 and 5 o'clock. On her failure to return home, her mother, after futile search, went to the homes of her playmates, Louise Van de Stuyft (L), aged 10, and Louisa Van Puyenbroeck (L. V. P.), aged 8. These girls were wakened from sleep and stated: "C played with us, but we haven't seen her since." This declaration constitutes, in the opinion of the author, the only correct statement made by these children. The village was roused, the police summoned. At 3 in the morning, the police commissioner arrived, woke L again from sleep and questioned her at length (no record being made of this examination). L then conducted him to the place where she last played with C. Soon after they discovered C's body a short distance away. So soon as the body was discovered, L's declarations were extended and amplified: she now stated that "a tall, dark man, with black mustache" had offered Ca penny to go with him. She (L) followed, and soon afterward found C dead in the ditch. She ran home, afraid, went to bed that night without mentioning the occurrence, because she was afraid to tell what had happened. On Wednesday, the police received an anonymous letter asserting that Amand Van Puyenbroeck (V.P.) must be the assassin. Thursday the examining magistrate interviewed him and put him under arrest. He was taken by train to the prison in a neighboring town, but at some risk of his life at the hands of an infuriated mob. From this moment, declarations implicating V. P. succeeded with striking rapidity and yielded a large amount of circumstantial and hearsay evidence against him. L, as already noted, was submitted to two examinations by the police commissioner, one just before, and one shortly after the discovery of the body. The next day, June 13th, both L and L. V. P. were subjected to a third examination, this time at the hands of the examining magistrate. Both children showed glaring discrepancies and alterations. from their first and their second declarations. The questions propounded by the magistrate were couched in a highly suggestive form and were based upon the assumption that the first statements of the girls (expressing entire ignorance of the murder) were incorrect. Thus the magistrate said: "You certainly know the assassin, tell me who it was." "I do not know him," replied the child. To which the magistrate said: "Didn't C mention the miscreant's name as Dick, Jan, Francois, or Jules?" The child then evidently chose one of these names to relieve herself from the pressure put upon her, for she made the round-about statement: "Elvire Van Puyenbroeck told me that C had said that the man's name was Jan." Now, later, when Elvire was examined, she asserted that she knew nothing about the affair. "But you must," retorted the magistrate, "for you told L that you heard C call him Jan." It was not until after this name had been thus lugged into discussion that the anonymous letter appeared. It must be explained, further, that the accused, Amand V. P., was sometimes known as Jan. Also that he was the father of L. V. P., whose testimony helped to involve him. Rather extraordinary was the fact that the subsequent testimony included the assertion that the "man" stood within 2 meters of the girls when he offered the penny and yet was not recognized by his own daughter or by a neighbor's child. Almost equally extraordinary was the circumstance that, if the later evidence is to be believed, these children, after witnessing the outrageous death of their playmate at the hands of a man they knew, ran away and played for an hour in the street before his house, and then went to bed without mentioning the crime, because they forgot it or because they were afraid (both explanations were made). Despite these seemingly impossible obstacles in the acceptance of the guilt of V. P., the intense social pressure for the conviction of some one was now focused upon the definite attempt to convict him. The sudden flood of clew and bits of "evidence" which appeared as soon as he was arrested, and which were plainly the product of rumor, imagination, and general excitement, was explained on the ground that "now tongues were released from their previous fear of V. P." Again, acting on this belief, which was soon universal, that the little girls knew every detail of the crime, there appears on the scene a woman named Dierens, who had semiofficial oversight over certain phases of their religious life. On June 13th, this woman asked L who killed C, and obtained the response that L was then giving, viz.: "A dark man with black mustache," etc. On June 19th, after V. P.'s arrest, the woman, after some exhortation, asked this terribly suggestive question: "Now, wasn't it really V. P. who killed C?" I nodded her head faintly. Again the same question, and again L nodded her head, but added: “All the boys say so." A third time the question and the same response. Then the woman hastened to report her "success' to the authorities, saying: "She is weakening and on the point of confessing all." It does not need a psychologist to anticipate what followed. The commissioner repaired again to L's house and armed with the woman's statement, proceeded to secure from L (and from L. V. P., who had, it may be added, ample opportunity to discuss the testimony with L) all the "evidence" desired. In the trial, which followed in January, 1911, the circumstantial evidence against V. P. was successfully met by counterevidence, so that the chief reliance of the prosecution was upon the testimony of the two little girls aforesaid. Counsel for the defense thereupon engaged a number of psychologists to testify to the unreliability of this juvenile testimony. The chief part of this expert testimony was presented by Varendonck, the author of the present article. He had examined, line by line, the voluminous record (nearly 1000 pages) secured in the preliminary hearings and had conducted a series of experiments upon school children, in which, so far as feasible, the nature and form of the questions propounded by the authorities to the girls was reproduced. This he sought to put before the court, together with a general account of the work that had been done by experts in the study of the psychology of testi mony. He concluded that the girls had positively not seen the murder or the murderer, and that their testimony was worthless. Varendonck's testimony was the occasion of several violent outbursts of wrath on the part of the court officials, who publicly ridiculed the pretensions of psychologists to dictate to them how questions should be asked or what evidence was reliable. Despite numerous sensational passages-at-arms between the court and the psychologists, the jury was impressed by the arguments and the accused was acquitted. It remains to cite briefly some of the experimental evidence offered on this occasion. Eighteen 7-yearold pupils were asked the color of the beard of one of the teachers in their building: 16 16 answered "black"; 2 did not answer; the man has no beard. Of 20 8-yearold pupils who replied to a similar query, 19 reported a color; only one said the man had no beard (which was correct). Similar results were obtained from older pupils. In one class, a pupil laughed aloud at the query and exclaimed: "He hasn't any beard." Nevertheless, 12 of the 22 reported a definite color. Again, a teacher of a certain class visited another class, stood before them for 5 minutes, talking and gesticulating, but keeping his hat on. Directly after he left, the teacher of the class obtained, in response to the query: "In which hand did Mr. hold his hat?" 17 answers of "right," 7 of "left," and only 3 correct answers. Other experiments showed that suggestions of odor or temperature could be easily evoked in school children. Finally, to duplicate the strongly suggestive questions of the magistrate, another experiment was tried with 8-year-old pupils, who gave written answers to the following: "When you were standing in line in the yard, a man came up to me, didn't he? You surely know who it was. Write his name on your |