A. The DraNovember, 1911. matic Incident agreed upon beforehand. [Scene the same as before.] At 10.55 A.M., the lecture being in progress, Mr. Keedy enters the lecture room from the south door at the rear. The lecturer says "Stop" to Mr. Keedy, strikes a table twice with a ruler, and says: "I showed a cup of coffee, and then an examination broke loose. Why not give them poison?" He then sits down, but goes out after the others cease speaking. At the close of his speech, Mr. Grubb and Mr. Luther, students sitting in the second row from the front, rise and say together: "Gompers has geology. Where is the breed? Next time you will not throw a pistol at the bread." Charles Caldwell, the janitor, then enters from the side (east) door, walks up to Mr. Richie, sitting in the front row, taps him on the shoulder; Mr. Richie follows Charles out of the front (north) door. Mr. Grubb and Mr. Luther follow them out. The lecturer during this latter "Do not give up stage exclaims: the ship. Taft and Bryan forever.' The class then adjourns to Hoyne Hall, at the lecturer's request. B. The Testimony. [Immediately upon adjournment to the court room, a jury of six, made up from members of other classes, is in waiting. A stenographic report is taken of the answers to the following questions: 1. Who came in first? 2. What did he do? 3. What did he say y? 4. What became of him? 5. Who was the second man to 13. What did did Mr. Wigmore do? The actors being all at the front of the room, except one who was at the extreme rear, the precise position of each witness was not noted. Six witnesses were arbitrarily selected from those present.] Answers. G. Fowler. -1. I never saw any one enter. 2. Mr. Keedy rapped on the desk. 3. He said, "I would like a cup of coffee." 4. He sat down. 5. I do not know his name. He was a student. 6. His words were not audible to me. 7. I don't know. 8. I could not tell you. 9. He walked up and touched Mr. Richie. 10. He did not open his mouth. 13. He said to retire to Hoyne Hall. B. L. Goldberg. 1. I don't know. 2. I don't remember. 3. I am not remember. 4. I don't know. 9. He walked in front of the desk, and went out other door. 10. I think he said nothing. 11. He walked out ahead of Charlie. 12. He did the same thing as Mr. Grubb. 13. He said to adjourn Hoyne Hall. to A. H. Marshall.-1. Mr. Keedy. and made 2. He jumped up several statements, to create a commotion. 3. I don't know. 4. I don't know. 5. Mr. Grubb. 13. He was standing up, but spoke, he said "This is an outsaid nothing. rage. T. M. McKinney. 1. Mr. Keedy. 2. He slammed something which I could not see on the desk; evidently lifted a chair and placed it down rather abruptly. 3. I distinguished the word "poison." 4. He immediately left the room, back through the north door. 294. JOHN H. WIGMORE. The Psychology of Testimony. (1909. Illinois Law Review. III, 426.) . . . The question has been asked whether the alleged percentages of testimonial error, as found in the laboratory experiments, do really, in trials, produce misleading results in the verdicts. The way to answer this is to include a jury (or judge of facts) in the experiment, and observe whether the findings of fact follow the testimonial errors or whether they succeed in avoiding them and in reaching the actual facts. In some of the experiments this method has been used, and the results are enlightening. For example, in Radbruch's experiment at Heidelberg (the subject being a dialogue of two persons L and E, about a telegram, with nine witnesses), one of the judges made two errors of finding - that L did not take his hat off, and that E had not reproved L for omitting to knock on the door while the other judge "gave a finding substantially without error - which was not the case with the witnesses on whom he relied." Again, in Zavadski's experiment, "The findings were much more harmonious than the testimony; they unanimously avoided the grossest errors of the witness; and their average error, 20.6 per cent, was not so high as the witnesses' average, 27 per cent; . . moreover, they all picked out the very same witness as the most trustworthy, and this witness was in fact the best one." Again in Detmold's experiment, he found that "in spite of the numerous omissions and errors in the testimony, it is possible by comparison of a number of them to put together a correct picture of the occurrence, at least in its essentials." And finally, in Gunther's experiment, he reports, "It is very satisfactory to note that, in the identification of the person charged, in spite of the great inconsistencies of the testimony, the correct result was found; for both findings were 100 per cent correct, though the average correctness of the witnesses was only 80.6 per cent. . . . The average for correctness of the entire finding was 90.6 per cent for one judge, and 87.4 per cent for the other, though the average of correctness for the witnesses was only 79.9 per cent." Is it not safe to say that neither the absolute nor the relative inefficiency or untrustworthiness of a jury's or judge's finding of fact ought to be positively asserted until after an extended series of experiments in which such a finding has been included? The few such experiments hitherto made give some ground for assuming that the testimonial errors, as detected in the experiments, are to a greater or less extent without influence on the verdict. TITLE III (continued): TESTIMONIAL INTERPRETATION SUBTITLE B: EXTENT AND SOURCES OF ERROR AS INDICATED BY SOME COMMON TESTIMONIAL INCIDENTS Topic 1. Defective Basis of Perception 296. ELIZABETH CANNING'S TRIAL. (1754. HOWELL'S State Trials. XIX, 576.) Look at her again; are you certain this is the same person? - Yes, Sir, I am certain of that. What may be your reason for recollecting the 16th of January? There was a snow on the 15th at night, and the 16th it was wet; and walking along, I had like to have fell, as my pattens were on; she stopped and looked at me, and I at her; when I came home, my neighbors said, this snow is come in the right season, yesterday was the 15th; then I said, this must be the 16th; and not only that, but I went to the almanac, and looked that very day. Did she speak to you?—No, nor I to her; but her person is so particular, that I can swear she is the a (She takes it in her hand, which was common sheet almanac, folded up into a book.) I can't see by this, it is so small. Look at it again, and take your time. I cannot see without my spectacles (she puts them on); you shall not fool me so. Tell me by this the day of the week for the 14th of December. This is not such an almanac as I look in; I look in a sheet almanac ; I cannot tell by this. Give it me again, if you cannot tell. All the reason you have to 66 297. HEATH'S TRIAL. (1774. [Mrs. Cole had testified to the presence of Mrs. Heath, another witness, on an important occasion;] cross-examined: Madam, do you remember that Mrs. Heath came to awaken your mother?" "I do remember that she came.” "Was there a light in the room?" "There was not." "Had Mrs. Heath a light with her?" "She might have had a candle in her hand." — "Was there light or not?" "There was 66 HOWELL'S State Trials. XVIII, 65.) . . . not; I believe there might be a fire." "Had she a candle in her hand?” 'Indeed, I cannot tell." "The reason of the question is this; look at that woman; will you swear positively that that is the woman that came into the room to call your mother?" "Mrs. Heath was the person, and I believe that is the same." - "How can you tell it was her when there was no light?" "I knew her voice." 298. BROOK'S CASE. (W. WILLS. Circumstantial Evidence. Amer. ed. 1905. p. 160.) In a case of burglary before the Special Commission at York, January, 1813, a witness stated that a man came into his room in the night, and caused a light by striking on the stone floor with something like a sword, which produced a flash near his face, and enabled him to observe that his forehead and cheeks were blacked over in streaks, that he had on a dark-colored topcoat and a dark-colored handkerchief, and was a large man, from which circumstances and from his voice, he believed the prisoner to be the same man. (Rex v. Brook, 31 St. Tr. 1135, 1137.) But see "Traité de la Preuve," par Desquiron, 274, where it is stated that after the condemnation of a man for murder, on the testimony of two witnesses, who deposed that they recognized him by the light from the discharge of a gun, experiments were made, from which it appeared that such recognition was impossible. The late learned Recorder of Birmingham (M. D. Hill, Esq., Q.C.) gave the Editor the particulars of a remarkable case, in which he was retained as counsel for a prisoner accused of shooting at a young woman, and in which the intended victim was prepared to swear that she recognized the prisoner by the flash of the gun which was fired at her. The trial, which was to have taken place at the Derby Spring Assizes, 1840, was prevented by the suicide of the prisoner, after the business of the Assizes had begun; but Mr. Hill was present at a series |