Criminal Sociology [70]
with a minute computation of the moral responsibility or culpability of the criminal. It can have no other end than to prove, first, that the person under trial is the author of the crime, and, then, to which type of criminals he belongs, and, as a consequence, what degree of anti-social depravity and re-adaptability is indicated by his physical and mental qualities.
The first and fundamental inquiry in every criminal trial will always be the verification of the crime and the identification of the criminal.
But when the connection of the accused and the crime is once established, either the accused produces evidence of his honesty, or of the uprightness of his motives--the only case in which his acquittal can be demanded or taken into consideration--or else it is proved that his motives were anti-social and unlawful, and then there is no place for those grotesque and often insincere contests between the prosecution and the defence to prevent or to secure an acquittal, which will be impossible whatever may be the psychological conditions of the criminal. The one and only possible issue between the prosecution and the defence will be to determine, by the character--of the accused and of his action, to what anthropological class he belongs, whether he is a born criminal, or mad, or an habitual or occasional criminal, or a criminal of passion.
In this case we shall have no more of those combats of craft, manipulations, declamations, and legal devices, which make every criminal trial a game of chance, destroying public confidence in the administration of justice, a sort of spider's web which catches flies and lets the wasps escape.
The crime will always be the object of punitive law, even under the positive system of procedure; but, instead of being the exclusive concern of the judge it will only be the ground of procedure, and one symptom amongst others of the depravation and re-adaptability of the criminal, who will himself be the true and living subject of the trial. As it is, the whole trial is developed from the material fact; and the whole concern of the judge is to give it a legal definition, so that the criminal is always in the background, regarded merely as the ultimate billet for a legal decision, in accordance with some particular article in the penal code--except that the actual observance of this article is at the mercy of a thousand accidents of which the judge knows nothing, and which are all foreign to the crime, and to the criminal.
If we rid ourselves of the assumption that we can measure the moral culpability of the accused, the whole process of a criminal trial consists in the assemblage of facts, the discussion, and the decision upon the evidence. For the classical school, on the other hand, such a trial has been regarded as a succession of guarantees for the individual against society, and, by a sort of reaction against the methods of legal proof, has been made to turn upon the private conviction, not to say the intuition, of the judge and counsel.
A criminal trial ought to retrace the path of the crime itself, passing backward from the criminal action (a violation of the law), in order to discover the criminal, and, in the psychological domain, to establish the determining motives and the anthropological type. Hence arises the necessity for the positive school of reconsidering the testimony in a criminal case, so as to give it its full importance, and to reinforce it with the data and inferences not only of ordinary psychology, as the classical school has always done (Pagano for instance, and Bentham, Mittermaier, Ellero, and others), but also, and above all, with the data and inferences of criminal anthropology and psychology.
In the evolution of the theory of evidence we may distinguish four characteristic stages, as M. Tarde observed--the religious stage, with its ordeals and combats; the legal stage, accompanied by torture; the political stage, with private conviction and the jury; and the scientific stage, with expert knowledge of experimental results, systematically collected
The first and fundamental inquiry in every criminal trial will always be the verification of the crime and the identification of the criminal.
But when the connection of the accused and the crime is once established, either the accused produces evidence of his honesty, or of the uprightness of his motives--the only case in which his acquittal can be demanded or taken into consideration--or else it is proved that his motives were anti-social and unlawful, and then there is no place for those grotesque and often insincere contests between the prosecution and the defence to prevent or to secure an acquittal, which will be impossible whatever may be the psychological conditions of the criminal. The one and only possible issue between the prosecution and the defence will be to determine, by the character--of the accused and of his action, to what anthropological class he belongs, whether he is a born criminal, or mad, or an habitual or occasional criminal, or a criminal of passion.
In this case we shall have no more of those combats of craft, manipulations, declamations, and legal devices, which make every criminal trial a game of chance, destroying public confidence in the administration of justice, a sort of spider's web which catches flies and lets the wasps escape.
The crime will always be the object of punitive law, even under the positive system of procedure; but, instead of being the exclusive concern of the judge it will only be the ground of procedure, and one symptom amongst others of the depravation and re-adaptability of the criminal, who will himself be the true and living subject of the trial. As it is, the whole trial is developed from the material fact; and the whole concern of the judge is to give it a legal definition, so that the criminal is always in the background, regarded merely as the ultimate billet for a legal decision, in accordance with some particular article in the penal code--except that the actual observance of this article is at the mercy of a thousand accidents of which the judge knows nothing, and which are all foreign to the crime, and to the criminal.
If we rid ourselves of the assumption that we can measure the moral culpability of the accused, the whole process of a criminal trial consists in the assemblage of facts, the discussion, and the decision upon the evidence. For the classical school, on the other hand, such a trial has been regarded as a succession of guarantees for the individual against society, and, by a sort of reaction against the methods of legal proof, has been made to turn upon the private conviction, not to say the intuition, of the judge and counsel.
A criminal trial ought to retrace the path of the crime itself, passing backward from the criminal action (a violation of the law), in order to discover the criminal, and, in the psychological domain, to establish the determining motives and the anthropological type. Hence arises the necessity for the positive school of reconsidering the testimony in a criminal case, so as to give it its full importance, and to reinforce it with the data and inferences not only of ordinary psychology, as the classical school has always done (Pagano for instance, and Bentham, Mittermaier, Ellero, and others), but also, and above all, with the data and inferences of criminal anthropology and psychology.
In the evolution of the theory of evidence we may distinguish four characteristic stages, as M. Tarde observed--the religious stage, with its ordeals and combats; the legal stage, accompanied by torture; the political stage, with private conviction and the jury; and the scientific stage, with expert knowledge of experimental results, systematically collected