Page:The Green Bag (1889–1914), Volume 19.pdf/266

 The

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Published Monthly at $4.00 per Annum. Single Numbers 50 Cents. Communications in regard to the contents of the Magazine should be addressed to the Editor, S. R. Wrightington, 31 State Street, Boston, Mass. The Editor will be glai to receive contributions of articles of moderate length upon subjects of interest THE SCIENCE OF TESTIMONY In the March Times Magazine (V. i, p. 425) Professor Hugo Munsterberg publishes the second of his series of studies of testimony from the point of view of the psychologist. He says that while we bring in experts to test with great care the reliability of certain forms of sworn evidence we entirely neglect what is the most important part of all trials, the scientific values of oral testimony. We are too confident, he believes, in the reliability of memory, and attributes this to the solemnity we attach to an oath, which causes us to put a wrong valuation upon sworn testimony. He then proceeds to illustrate many ways in which memory fails. Not only is observa tion defective, but there are different types of memory which are capable of classification. Some people observe and remember accurately things they see; others things they hear. Others he describes as of the motor type; that is, they " feel intention of movement, as of speaking, or writing, or acting, whenever they reconstruct a past experience." " The courts will have to learn sooner or later that the individual differences of men can be tested to-day by the methods of experimental psy chology far beyond anything which common sense and social experience suggest." He further explains that the subject of which he treats does not belong in the domain of the physician, but is merely the variations of nor mal mental life. Still another factor which he says more than anything else devastates memory and plays havoc with our best inten tions and recollections is the power of sug gestion. The idea certainly deserves our serious consideration that in cases of conflicting testi mony on questions of fact we shall come some day to employ the expert psychologist to make simple tests in court of the real capacity of the memory of the witness. Every lawyer knows that the most dangerous element in

evidence is not willful perjury, but uncon scious variation or inaccuracy, and the careful lawyer devotes much time in preparation to the cross-examination of his own witnesses for the purpose of satisfying himself as to the accuracy of their memory. If some tangible, scientific method could be used to test these mental qualities of witnesses the value of oral testimony would be immensely enhanced, and a large part of the popular distrust of the accuracy of judicial decisions might be avoided. THE PHYSICAL QUALIFICATIONS In a recent address before the students of the Law School of Northwestern University on legal tactics, Frank J. Loesch, president of the Chicago Bar Association, gave his hearers many wise suggestions as to the qualifications essential to success at the Bar. In addition to the moral and intellectual qualities usually emphasized, the following words will strike a responsive chord in the heart of many an over-worked attorney. " You may just as well make up your mind at the beginning that unless you have sound physical health you cannot endure the strain of a law practice. Whether that strain comes as a trial lawyer or whether it comes in the sometimes more exacting work of the office or of preparation for the trial, at any rate the strain that is put upon you time and again requires steady nerves and sound physical condition. If you have not got that and you cannot get it, seek some other employment, for your career will be full of bitterness and disappointment." Have you noticed how many of your emi nently successful rivals are men of powerful physique? It is not merely the advantage of impressive figure that gives the former ath lete an advantage in jury trials. It is his physical endurance that enables him to crossexamine day after day. A very successful trial lawyer in Boston recently stated that after a winter of constant practice his work