I do not assert that either one or the other of these persons was
condemned guiltlessly, or that such “side issues” have no value and
ought not to be proved. I merely point out that caution is necessary in
two directions. First of all, these side issues must not be identified
with the central issue. Their demonstration is only preparatory work,
the value of which must be established cautiously and without prejudice.
It may be said that the feeling of satisfaction with what has been done
causes jurists frequently to forget what must yet be done, or to
undervalue it. Further, a psychological examination must seek out the
motives which led or might have led the accused to deny some point not
particularly dangerous to him. In most cases an intelligible ground for
such action can be discovered, and if the psychologically prior
conditions are conceived with sufficient narrowness to keep us from
assuming unconditional guilt, we are at least called upon to be
careful.
This curious danger of identification of different issues as the aim of
presentation of evidence, occurs much more frequently and with
comparatively greater degree in the cases of individual witnesses who
are convinced of the principal issue when a side issue is proved.
Suppose a witness is called on to identify a man as somebody who had
stabbed him in a serious assault, and that he has also to explain
whether the quarrel he had had with this man a short time ago was of
importance. If the suspect is desirous of having the quarrel appear as
harmless, and the wounded person asserts that the quarrel was serious,
the latter will be convinced, the moment his contention may be viewed as
true, that his opponent was really the person who had stabbed him. There
is, of course, a certain logical justification for this supposition, but
the psychological difficulty with it is the fact that this case, like
many others, involves the identification of what is inferred with what
is perceived. It is for this reason that the mere fact of arrest is to
most people a conviction of guilt. The witness who had first identified
A as only the probable criminal becomes absolutely convinced of it when
A is presented to him in stripes, even though he knows that A has been
arrested on his own testimony alone. The appearance and the surroundings
of the prisoner influence many, and not merely uneducated people,
against the prisoner, and they think, involuntarily, “If he were not the
one, they would not have him here.”
Section 24. (b) Causation.[129]
Public-domain text, read in full here on John Shaqi.
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