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 and studied, which is the new task of positive procedure.
We must glance at each of the three elements of the criminal trial: collection of evidence (police and preliminary inquiry); discussion of evidence (prosecution and defence), and decision upon evidence (judges and juries).
It is evident in the first place, as I remarked in the first edition of this work, and as Righini, Garofalo, Lombroso, Alongi, and Rossi have confirmed, that a study of the anthropological factors of crime provides the guardians and administrators of the law with new and more certain methods in the detection of the guilty. Tattooing, anthropometry, physiognomy, physical and mental conditions, records of sensibility, reflex activity, vaso- motor reactions, the range of sight, the data of criminal statistics, facilitate and complete the amassing of evidence, personal identification, and hints as to the capacity to commit any particular crime; and they will frequently suffice to give police agents and examining magistrates a scientific guidance in their inquiries, which now depend entirely on their individual acuteness and mental sagacity.
And when we remember the enormous number of crimes and offences which are not punished, for lack or inadequacy of evidence, and the frequency of trials which are based solely on circumstantial hints, it is easy to see the practical utility of the primary connection between criminal sociology and penal procedure.