seven sons and five daughters, or that each had a wife named Mary Elizabeth and three daughters named Flora, Delia, and Stella; here the chances are again reduced, in varying degrees, in proportion to the probable number of persons who would possess this composite mark. In every instance, the process depends upon the same principle, the extent to which the common mark is capable of being associated, in human experience, with more than one object. In accordance with the general principle of Explanation (ante, No. 2, § 5), the party denying the identity may show that there are numerous objects equally possessing the evidential mark offered, so as to show that the chances of the two supposed objects being the same are very small. It may also be noted that a mark of identity may be negative as well as affirmative; ie. where a certain circumstance would be necessarily associated with an object in issue, the lack of that feature in a particular object offered tends to show that it cannot be the object in issue, in analogy with the argument from essential inconsistency (post, No. 55). 15. G. F. ARNOLD. Psychology applied to Legal Evidence. (1906. p. 356.) In trying to arrive at the nature of Identity we are forced to a certain extent to discuss Metaphysics: this is unavoidable, and it is the neglect of what Metaphysics teaches which has in our opinion led to the confusion and contradictions on the subject which exist in the law. We shall begin by insisting on a few propositions: viz. (1) that you cannot be aware of identity unless you have also diversity; (2) that you cannot ask whether a thing is generally the same, but you must confine your questions to a certain aspect of it; (3) that we select that aspect to suit our interests, and such interests are usually practical; (4) that identity or the relation of sameness is ideal, it lies in the view we take of things, and not in the nature of things themselves; (5) that the word "same" is used ambiguously and that it is a different problem when we ask whether an individual remains the same, and when we ask whether two things are the same. (1) The first proposition applies whether we are speaking of the resemblance of two things or of the continuous identity of one. "In order that the mind may perceive the resemblance between two images," says Binet, "they must differ a little; if they do not, they become added together and form a single image."1... Professor Sully writes: "The visual recognition of a thing as identical with something previously perceived takes place by help of the idea of persistence. . . . (It involves) the comparison of successive impressions and the detection of similarity and diversity of change. Thus a child learns to recognize his hat, etc., by discounting a certain amount of dissimilarity." 2 (2) If the persistence is in the object itself, this implies a sameness of character attaching to the thing itself, i.e. a qualitative sameness, and further the avoidance of any absolute break in its existence. When, however, it is asked in what the sameness of quality consists, it will be found that no reply can be given, unless the point or particular respect of which you were thinking is specified. A general reply cannot be given because we do not know the general character which is taken to make the thing's essence; it is not always material substance, nor shape, nor size, nor color. The identity lies. 1 Binet, Psychology of Reasoning, p. 120. Sully, Outlines of Psychology, p. 155. really in the view we take of it, and that view is often a mere chance idea; the character therefore lies outside of and beyond the fact taken. . . .1 (3) How then do we determine in what respect we shall ask of a thing whether it is the same or not? Professor Stout seems to have answered this question in his remarks on what he calls "thinghood." It depends on interest: we take what answer for practical purposes as real, identical, etc.: on the perceptual level this interest is purely practical. It is the interest of the moment which determines how we look at a thing, and we look at it differently, according to the fluctuation of interest. And this is why we say that the rule of convenience is the one to be followed in deciding whether events belong to the same transaction or not. Our interest here is solely as to how we shall dispose judicially of the charges brought against the accused in the most convenient manner, and the considerations which chiefly influence us are whether the same witnesses can speak to all the charges and whether those charges can be kept separate before the mind without risk of confusion or prejudice, if they are taken together. The fact that the events happened at different times and places and such like reasons are irrelevant in themselves save in so far as they hinder or promote our convenience. .. To seek to convert such reasons into an objective general test of identity and difference seems to us both meaningless and irrational. . . . (4) The relation of Similarity to Identity will now be described. "Similarity," says Bradley, "is nothing in the world but more or less unspecified sameness. "The feeling that two things are similar need not imply the perception of the identical point, but none the less this feeling is based always on partial sameness,' ,"3 and elsewhere he says that Resemblance is the perception of the more or less unspecified identity of two distinct things. It differs from identity in its lowest form, i.e. where things are taken as the same without specific awareness of the point or sameness and distinction of that from the diversity, because it implies the distinct consciousness that the two things are two and different. It differs again from identity in a more explicit form because it is of the essence of Resemblance that the point or points of sameness should remain at least partly undistinguished and unspecified. And, further, the feeling which belongs to the experience of similarity is different from that which belongs to the experience of sameness proper. But resemblance is based always on partial sameness, though the specific feeling of resemblance is not itself the partial identity which it involves, and partial identity need not imply likeness proper at all. The writer is aware that this view is disputed by more than one philosopher: they hold that Resemblance is not based on Identity, but is an ultimate idea, or even that Identity is based on Resemblance. Thus Binet writes, "to explain the resemblance between two states of consciousness by the common elements in the two states or by a partial identity of their elements, simplifies nothing at all. For it replaces the idea of resemblance by the ideas of identity and unity which are merely its derivatives. Resemblance is a single, ultimate, and irreducible idea."4 Similarly Professor James says, "So here any theory that would base likeness on identity, and not rather identity on likeness must fail;" again, "likeness must not be conceived as a 1 Bradley, Appearance and Reality, pp. 73–74. 2 Stout, Manual of Psychology, pp. 327 et seq. 3 Bradley, op. cit., p. 348, and note 1. Binet, op. cit., p. 129. 1 special complication of identity, but rather that identity must be conceived as a special degree of likeness, . . . likeness and difference are ultimate relations perceived. As a matter of fact no two sensations, no two objects of all those we know, are in scientific rigor identical. We call those of them identical whose difference is unperceived. Over and above this we have a conception of absolute sameness, it is true, but this, like so many of our conceptions, is an ideal construction got by following a certain direction of serial increase to its maximum supposable extreme. It plays an important part among other permanent meanings possessed by us in our ideal intellectual constructions. But it plays no part whatever in explaining psychologically how we perceive likenesses between simple things." We remember to have read in a judgment of one of the Indian High Courts (unfortunately we cannot now give the reference) that the judges considered the case was not proved because the evidence only established likeness and not identity, and it is no uncommon thing to hear evidence given that a witness can swear that two things or two persons are very like, but he will not swear that they are the same: such testimony is usually considered to fall short of an identification. Now if identity is based on resemblance, what more is required than the assertion that two things are very like? It is the fact that such questions arise in law that is our excuse for pursuing this controversy concerning Resemblance and Identity a little further. The position of the one side is that Identity is nothing more than a special degree of resemblance with the difference between the two objects unperceived; the contention of the other is that all resemblance is partial identity, but the points of sameness are not fully specified, and that terms such as exact likeness" "precise similarity" are misleading. For as soon as you have removed all internal difference, and resemblance is carried to such a point that perceptible difference ceases, then you have identity. As soon as you begin to analyze resemblance you get something else than it, and when you argue from resemblance, what you use is not the resemblance, but the point of resemblance, and a point of resemblance is clearly an identity. 2 The physiological explanation, when one state of consciousness is said to revive a similar state, doubtless is that the two similar states have a numerically single nerve element as their basis; the two images put a common cell element in vibration and this is called an identity of seat. This appears to us to point to identity being the ultimate state. But for the purpose of our discussion it seems clear that what is really the important matter is the amount of difference which is perceived; and we think that in most cases when a witness is able to swear to great likeness between two objects or persons and can specify the points of likeness, in the absence of any specified points of difference it should be accepted as an identification even though the witness shrinks from using that term. If an advocate persists in asking, “Will you swear that they are the same?" many witnesses will answer, No, and on paper and to the unreflecting mind this will considerably weaken the effect of the evidence. Such an advocate should be asked in his turn to define what he means by "same," and if he attempts to do this, it will soon become apparent that his question as so addressed is not one that can be fairly given the direct answer, Yes or No. If the 1 W. James, Principles of Psychology, Vol. I, pp. 532–533. Binet, op. cit., pp. 125, 126. witness attempts to give any other response, he is often charged with prevarication, whereas it is not his fault that he does so, but the form of his interrogator's question compels him to do it. In a case, e.g., of the identification of stolen goods, the magistrate should not be influenced so much by the use of the words "like" and "same," but should rather get from the witness the points in which he is able to say that the objects correspond and those in which he is able to say that they differ. "Two objects are similar," says Wundt, "when certain of their characteristics correspond, while others are different"; and perfect likeness to indicate which the term "identity" is sometimes used whether of quality or of intensity, must be estimated for practical purposes by indistinguishableness when attention is closely directed to the two objects. (5) At the same time it must be remarked that difference is not always fatal to identity. But here we are using "identity" in another sense. A quotation will explain this: "Real identity," says Dr. Ward, "no more involves exact similarity than exact similarity involves sameness of things; on the contrary, we are wont to find the same thing alter with time, so that exact similarity after an interval, so far from suggesting one thing, is often the surest proof that there are two concerned. Of such real identity, then, it would seem we must have direct experience; and we have it in the continuous presentation of the bodily self." . . . The same writer points out the ambiguity in the word 'same" whereby it means either individual identity or indistinguishable resemblance: in the former we have mere oneness or singularity which entails no relation; in the latter there is a relation, for two individuals partially coincide. . . . Resemblance itself may be fatal to identification, when the law of being is changed. . . . 66 ... It is hardly necessary to concern ourselves further with this meaning of the term, though we have a few more remarks to make on the subject of Identification. One method of identification allowed in law is by showing the photograph of a person to the witness. In the case of R. v. Tolson, 4 F. & F. 104, a photograph in a trial for bigamy was shown to two persons to identify on the ground that it was a permanent visible representation of the image made on the minds (the retinas of the eyes) of the witnesses by the sight of the person represented, so that it was "only another species of the evidence which persons give of identity, when they speak merely from memory." This reason does not appear to us to be correct; no photograph corresponds entirely to the mental image which we have of a man, but only contains certain elements which are the same. These elements not merely revive those corresponding to them in the image, but they further revive others which do not correspond but which were contiguous with the like ones in the past, and it is this whole often made up of many representations of the individual which is the mental image that we have of the person. It is a case of association of ideas both by similarity and contiguity, and not by similarity alone as the dictum quoted above implies. Hence Professor Stout, when explaining the uncertainty of revival says, "The points of difference in the given presentation preoccupy consciousness and have preformed associations of their own. The points of identity can only reproduce their contiguous associates by partially or wholly displacing the setting in which they are embedded in the given presentation, and by overcoming the reproductive tendencies which attach to this presentation as a whole and to its specific constituents. In order that such obstructions may be overcome, the points of identity must have peculiar interest or impressiveness, or their performed association must in some other way be peculiarly favored, e.g. by frequent repetition, or by the general direction of mental activity at the moment." In short, the function of photographs, portraits, and the like is to call up not any image of the person as seen on one particular occasion, but the general idea or generic image that we have in our mind, and how that idea is formed has already been discussed in the chapter on the theory of the normal man. When, therefore, in the case of Fryer v. Gathercole (13 Jur. 542) PARKE, B., said, “In the identification of persons you compare in your mind the man you have seen with the man you see at the trial; the same rule of comparison belongs to every species of identification," the statement does not appear sufficient, for the words "the man you have seen do not adequately describe the nature of the mental image employed. Nor do you compare generally just as you must ask whether a man is identical in this or that respect, so you always compare in some special respect. Some theoretical or practical end is to be subserved by the comparison which takes place only in regard to the characteristics which happen to be interesting at the moment, other characteristics being set aside or disregarded as unimportant. This explains why persons often fail to observe suspicious facts or draw what appear to be obvious inferences. They do not make the necessary comparisons because they have not the necessary interest at the time: after they have been cheated, interest is aroused and in retrospect it looks very different. But judges overlook this and regarding the matter after the event, draw the conclusion that the complainant consented, was an accomplice, etc. (6) Comparison of handwriting and identification by it next claims attention. Only two methods will be here considered, viz. that by which an admitted specimen of the person's handwriting is placed side by side with the handwriting in dispute, and compared by an expert, the jury, or the judge; and that by which a person who is acquainted with the handwriting of the individual through having seen it on previous occasions, is shown a writing in court and is asked to say from his general knowledge whether it is or is not that individual's handwriting. The methods are different. (a) In the latter, which will be first discussed, the witness identifies the handwriting by reference to some general standard which exists in his mind. The general standard by which the witness recognizes the handwriting put before him must (it appears to the writer) be simply the general or universal idea which has already been fully discussed in the chapter on the theory of the normal man. It is in virtue of the common elements existing between the particular writing and the general idea of the handwriting in the witness's mind that the comparison is able to be made. "In comparison," says Professor Stout, "we first become conscious of the antithesis between the particular and the universal. The reason is that in it we become aware of the universal, as the common element which connects two clearly distinguished particulars. Thus the common element stands out in contrast to the differences; whereas in mere recognition no such contrast exists." We say the "general idea" and do not lay stress on the "generic image" because M. Binet has recently doubted the existence of |