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Nobody will assert that it will occur to any judge to persuade a witness to anything which he does not thoroughly believe； but we know how often we persuade ourselves to some matter； and nothing is more conceivable than that we might like to see other people agree with us about it。 I believe that the criminalist； because； let us say； of his power； as a rule takes his point of view too lightly。 Every one of us； no doubt； has often begun his work in a small and inefficient manner； has brought it along with mistakes and scantiness and when finally he has reached a somewhat firm ground； he has been convinced by his failures and mistakes of his ignorance and inadequacy。 Then he expected that this conviction would be obvious also to other people whom he was examining。 But this obviousness is remarkably absent； and all the mistakes； cruelties； and miscarriages of justice； have not succeeded in robbing it of the dignity it possesses in the eyes of the nation。 Perhaps the goodwill which may be presupposed ought to be substituted for the result； but it is a fact that the layman presupposes much more knowledge； acuteness； and power in the criminalist than he really possesses。 Then again； it is conceivable that a single word spoken by the judge has more weight than it should have； and then when a real persuasion evidently in the best sense of the wordis made use of； it must be influential。 I am certain that every one of us has made the frightful observation that by the end of the examination the witness has simply taken the point of view of the examiner； and the worst thing about this is that the witness still thinks that he is thinking in his own way。
The examiner knows the matter in its relation much better； knows how to express it more beautifully； and sets pretty theories going。 The witness； to whom the questions are suggestive； becomes conceited； likes to think that he himself has brought the matter out so excellently； and therefore is pleased to adopt the point of view and the theories of the examiner who has； in reality； gone too far in his eagerness。 There is less danger of this when educated people are examined for these are better able to express themselves； or again when women are examined for these are too obstinate to be persuaded； but with the great majority the danger is great； and therefore the criminalist can not be told too often how necessary it is that he shall meet his witness with the least conceivable use of eloquence。
Forensic persuasion is of especial importance and has been considered so since classical days； whether rightly； is another question。 The orations of state prosecutors and lawyers for the defense； when made before scholarly judges； need not be held important。 If individuals are ever asked whether they were persuaded or made doubtful by the prosecutor or his opponent they indicate very few instances。 A scholarly and experienced judge who has not drawn any conclusions about the case until the evidence was all in need hardly pay much attention to the pleaders。 It may indeed be that the prosecution or defense may belittle or intensify one or another bit of evidence which the bench might not have thought of； or they may call attention to some reason for severity or mercy。 But on the one hand if this is important it will already have been touched in the adduction of evidence； and on the other hand such points are generally banal and indifferent to the real issue in the case。 If this be not so it would only indicate that either we need a larger number of judges； or even when there are many judges that one thing or another may be overlooked。
But with regard to the jury the case is quite different； it is easily influenced and more than makes up for the indifference of the bench。 Whoever takes the trouble to study the faces of the jury during trial； comes to the conclusion that the speeches of the prosecution and defense are the most important things in the trial； that they absorb most of the attention of the jury； and that the question of guilt or innocence does not depend upon the number and weight of the testimony but upon the more or less skilful interpretation of it。 This is a reproach not to the jury but to those who demand from it a service it can not render。 It is first necessary to understand how difficult the conduct of a trial is。 In itself the conduct of a jury trial is no art； and when compared with other tasks demanded of the criminalist may be third or fourth in difficulty。 What is difficult is the determination of the chronological order in which to present evidence； i。 e。； the drawing of the brief。 If the brief is well drawn； everything develops logically and psychologically in a good way and the case goes on well； but it is a great and really artistic task to draw this brief properly。 There are only two possibilities。 If the thing is not done； or the brief is of no use； the case goes on irrelevantly； illogically and unintelligibly and the jury can not understand what is happening。 If the trick is turned； however； then like every art it requires preparation and intelligence。 And the jury do not possess these； so that the most beautiful work of art passes by them without effect。 They therefore must turn their attention； to save what can be saved； upon the orations of the prosecution and defense。 These reproduce the evidence for them in some intelligible fashion and the verdict will be innocence or guilt according to the greater intelligence of one or the other of the contending parties。 Persuasiveness at its height； Hume tells us； leaves little room for intelligence and consideration。 It addresses itself entirely to the imagination and the affections； captures the well…inclined auditors； and dominates their understanding。 Fortunately this height is rarely reached。 In any event； this height； which also dominates those who know the subject； will always be rare； yet the jury are not people of knowledge and hence dominations ensue； even through attempts at persuasiveness which have attained no height whatever。 Hence the great danger。
The only help against this is in the study by the presiding justice； not as lawyer but as psychologist； of the faces of the jury while the contending lawyers make their addresses。 He must observe very narrowly and carefully every influence exercised by the speeches； which is irrelevant to the real problem； and then in summing up call it to the attention of the jury and bring them back to the proper point of view。 The ability to do this is very marvelous； but it again is an exceedingly difficult performance。
Nowadays persuadability is hardly more studied but anybody who has empirically attained some proficiency in it has acquired the same tricks that are taught by theory。 But these must be known if they are to be met effectively。 Hence the study of the proper authors can not be too much recommended。 Without considering the great authors of the classical period； especially Aristotle and Cicero； there are many modern ones who might be named。
Section 31。 （i） Inference and Judgment。
The judgment to be discussed in the following section is not the judgment of the court but the more general judgment which occurs in any perception。 If