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ar；＇1＇ of anger； of all such states of mind as might here have been operative；it requires the establishment of his unbiased vision of the subject from a period antecedent to these above…mentioned influences。 Opinions； valuations； prejudices； superstitions； etc。； may here be to a high degree factors of disturbance and confusion。 Only when the whole Augean stable is swept out may the man be supposed capable of apperception； may the thing he is to tell us be brought to bear upon him and he be permitted to reproduce it。
This necessary preliminary is not so difficult if the second of the above…mentioned rules is observed and the ‘‘funded thought'' of the witness is studied out。 It may be said； indeed； that so long as two people converse； unaware of each other's ‘‘funded thought；'' they speak different languages。 Some of the most striking misunderstandings come from just this reason。 It is not alone a matter of varying verbal values； leading to incompatible inferences； actually the whole of a man's mind is involved。 It is generally supposed to be enough to know the meaning of the words necessary for telling a story。 But such knowledge leads only to external and very superficial comprehension； real clearness can be attained only by knowing the witness's habits of thought in regard to all the circumstances of the case。 I remember vividly a case of jealous murder in which the most important witness was the victim's brother； an honest； simple； woodsman； brought up in the wilderness； and in every sense far… removed from idiocy。 His testimony was brief； decided and intelligent。 When the motive for the murder； in this case most important； came under discussion； he shrugged his shoulders and answered my questionwhether it was not committed on account of
＇1＇ Dichl in H。 Gross's Arehiv； XI； 240。
a girlwith； ‘‘Yes； so they say。'' On further examination I reached the astonishing discovery that not only the word ‘‘jealousy；'' but the very notion and comprehension of it were totally foreign to the man。 The single girl he at one time thought of was won away from him without making him quarrelsome； nobody had ever told him of the pangs and passions of other people； he had had no occasion to consider the theoretic possibility of such a thing； and so ‘‘jealousy'' remained utterly foreign to him。 It is clear that his hearing now took quite another turn。 All I thought I heard from him was essentially wrong； his ‘‘funded thought'' concerning a very important； in this case a regulative concept； had been too poor。
The discovery of the ‘‘funded thought'' is indubitably not easy。 But its objective possibility with witness and accused is at least a fact。 It is excluded only where it is most obviously necessary in the case of the jury； and the impossibility in this case turns the institution of trial by jury into a Utopian dream。 The presiding officer of a jury court is in the best instances acquainted with a few of the jurymen； but never so far as to have been entrusted with their ‘‘funded thought。'' Now and then； when a juryman asks a question； one gets a glimpse of it； and when the public prosecutor and the attorney for the defence make their speeches one catches something from the jury's expressions； and then it is generally too late。 Even if it be discovered earlier nothing can be done with it。 Some success is likely in the case of single individuals； but it is simply impossible to define the mental habits of twelve men with whom one has no particular relations。
The third part of the Frbelian rule； ‘‘To presuppose as little as possible；'' must be rigidly adhered to。 I do not say this pessimistically； but simply because we lawyers； through endless practice； arrange the issue so much more easily； conceive its history better and know what to exclude and what； with some degree of certainty； to retain。 In consequence we often forget our powers and present the unskilled laity； even when persons of education； too much of the material。 Then it must be considered that most witnesses are uneducated； that we can not actually descend to their level； and their unhappiness under a flood of strange material we can grasp only with difficulty。 Because we do not know the witness's point of view we ask too much of him； and therefore fail in our purpose。 And if； in some exceptional case； an educated man is on the stand； we fail again； since； having the habit of dealing with the uneducated； we suppose this man to know our own specialties because he has a little education。 Experience does not dispel this illusion。 Whether actual training in another direction dulls the natural and free outlook we desire in the witness； or whether； in our profession； education presupposes tendencies too ideal； whatever be the reasons； it is a fact that our hardest work is generally with the most highly educated witnesses。 I once had to write a protocol based on the testimony of a famous scholar who was witness in a small affair。 It was a slow job。 Either he did not like the terms as I dictated them； or he was doubtful of the complete certainty of this or that assertion。 Let alone that I wasted an hour or two； that protocol； though rewritten； was full of corrections and erasures。 And the thing turned out to be nonsense at the end。 The beginning contradicted the conclusion； it was unintelligible； and still worse； untrue。 As became manifest later； through the indubitable testimony of many witnesses； the scholar had been so conscientious； careful and accurate that he simply did not know what he had seen。 His testimony was worthless。 I have had such experiences repeatedly and others have confessed them。 To the question： Where not presuppose too much？ the answer is： everywhere。 First of all； little must be presupposed concerning people's powers of observation。 They claim to have heard； seen or felt so and so； and they have not seen； heard； or felt it at all； or quite differently。 They assent vigorously that they have grasped； touched； counted or examined something； and on closer examination it is demonstrated that it was only a passing glance they threw on it。 And it is still worse where something more than ordinary perception is being considered； when exceptionally keen senses or information are necessary。 People trust the conventional and when close observation is required often lack the knowledge proper to their particular status。 In this way； by presupposing especial professional knowledge in a given witness； great mistakes are made。 Generally he hasn't such knowledge； or has not made any particular use of it。
In the same way too much attention and interest are often presupposed； only to lead later to the astonishing discovery of how little attention men really pay to their own affairs。 Still less； therefore； ought knowledge in less personal things be presupposed； for in the matter of real understanding； the ignorance of men far exceeds all presuppositions。 Most people know the looks of all sorts of things； and think they know their essences； and when questioned； invariably assert it； quite in good faith。 But if you depend on such knowledge bad results arise that are all the more dangerous because there is rarely later opportunity to recognize their badness。