按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
lem lies in the very potent fact that inferences and theories are often constructed which are formally or logically absolutely free of error； yet psychologically full of errors that no logic whatever could correct。 We have； therefore； to consider at least the most important conditions which determine the manner of our inferences。
The right which lawyers possess of studying these questions； so far as they lie in our field； is of modern establishment。 According to Hillebrand＇1＇ the theory of knowledge has to…day broken up into individual theories； involving the certain needs of special fields of knowledge。 The place of the epistomologists； who are professionals and beyond the pale of individual disciplines； is now taken by the representatives of those disciplines and each works expressly on his own epistomological problem。 Our especial problem is the drawing of inferences from the material presented to us or brought together by our efforts； just as in other disciplines。 If we set ourselves the
＇1＇ F。 Hillebrand： zur Lehre der Hypothesenbildung。
task of determining the procedure when subjecting the fundamental principles of our work to revision and examining their utility； we merely ask whether the process is voluntary or according to fixed laws； and having cleared up that point we ask what influence psychological conditions exercise on the situation。 It is； indeed； said that thinking is a congenital endowment； not to be learned from rules。 But the problem is not teaching the inferrer to think； the problem is the examination of how inferences have been made by another and what value his inferences may have for our own conclusions。 And our own time； which has been bold enough to lay this final conclusion in even the most important criminal cases； in the hands of laymen； this time is doubly bound at least to prepare all possible control for this work； to measure what is finally taken as evidence with the finest instruments possible； and to present to the jury only what has been proved and repeatedly examined。
It might almost seem as if the task the jury trial sets the judge has not been clearly perceived。 A judge who thinks he has performed it when he has cast before the jury the largest possible mass of testimony； more or less reviewed； and who sees how people； who perhaps for the first time in their lives； are involved in a court of law； who perhaps see a criminal for the first time； and are under these circumstances the arbiters of a man's fate；a judge who sees all this and is satisfied； is not effective in his work。 Nowadays more than ever； it is for the judge to test all evidence psychologically； to review what is only apparently clear； to fill out lacunae； and to surmount difficulties； before he permits the material brought together in a very few hours to pass into the jury's hands。 According to Hillebrand； much that seems ‘‘self…evident'' shows itself dependent on definite experience attained in the process of hundreds of repetitions in the daily life； the very impression of self…evidence is frequently produced by a mere chance instinct about what should be held for true。 Hume has already shown how the most complex and abstract concepts are derived from sensation。 Their relation must be studied； and only when we can account for every psychic process with which we have to concern ourselves； is our duty properly fulfilled。
Section 23。 （a） Proof。
Mittermaier＇1＇ holds that ‘‘as a means of testimony in the legal sense of that term every possible source must be examined which
＇1＇ C。 J。 A。 Mittermaier： Die Lehre vom Beweis im deutschen Strafprozess。 Darmstadt 1834。
may suffice the judge according to law。 And from such examination only may the requisite certainties be attained from which the judge is to assume as determined； facts relevant to his judgment。'' Only the phrase ‘‘according to law'' needs explanation； inasmuch as the ‘‘source'' of reasons and certainties must satisfy the legal demands not only formally but must sustain materially every possible test； whether circumstantial or logico…psychologic。 If； for example； the fundamental sources should be a combination of （1） a judicial examination of premises （lokalaugenschein）； （2） testimony of witnesses； and （3） a partial confession； the requirements of the law would be satisfied if the protocol； （1）； were written or made according to prescribed forms； if a sufficient number of properly summoned witnesses unanimously confirmed the point in question； and if finally the confession were made and protocoled according to law。 Yet； though the law be satisfied； not only may the conclusion be wholly false but every particular part of the evidence may be perfectly useless； without the presence anywhere of intentional untruth。 The personal examination may have been made by a judge who half the time； for some sufficiently cogent reason； had a different conception of the case than the one which later appeared to be true。 It need not have been necessary that there should be mixed therewith false information of witnesses； incorrect observation； or such other mistakes。 There need only have been a presupposition； accepted at the beginning of the examination； when the examination of the premises took place； as to the visible condition of things； and this might have given apparent justification to doubtful material and have rendered it intelligible； only to be shown later as false。 The so…called ‘‘local examination'' however； is generally supposed to be ‘‘objective。'' It is supposed to deal only with circumstantial events； and it does not occur to anybody to modify and alter it when it is certainly known that at another point the situation has taken an altogether different form。 The objectivity of the local examination is simply non…existent； and if it were really objective； i。 e。； contained merely dry description with so and so many notations of distances and other figures； it would be of no use。 Every local examination； to be of use； must give an accurate picture of the mental process of him who made it。 On the one hand it must bring vividly to the mind of the reader； even of the sentencing judge； what the situation was； on the other； it must demonstrate what the examiner thought and represented to himself in order that the reader； who may have different opinions； may have a chance to make corrections。 If I； for example； get the impression that a fire was made through carelessness； and that somebody lost his life on account of it； and if I made my local examination with this presupposition in mind； the description will certainly seem different from that made under the knowledge that the fire was intentional and made to kill。 At trial the description of local conditions will be read and entered as important testimony。 It satisfies the law if it is taken according to form； has the correct content； and is read as prescribed。 But for our conscience and in truth this manuscript can be correct only when it is logically and psychologically presented revised according to the viewpoint its writer would have had if he had been in possession of all the facts in possession of the reader。 This work of reconstruction belongs to the most difficult of our psycho