Freud, Sigmund (1906-002/1924.en): Psycho-analysis and the ascertaining of truth in courts of law

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I

PSYCHO-ANALYSIS AND THE ASCERTAINING
OF TRUTH IN COURTS OF LAW¹

(1906)

THERE is a growing recognition of the untrust-
worthiness of statements made by witnesses, at
present the basis of so many judgements in
Courts of Law; and this has quickened in all of you,
who are to become judges and advocates, an interest in
a new method of investigation, the purpose of which
is to lead the accused person to establish his own
guilt or innocence objectively. This method is of a
psychological and experimental character, and is based
upon psychological research; it is closely connected
with certain views which have only recently been
propounded in medical psychology. I understand that
you are already engaged in testing the utility and
bearing of this new method by means of what one
might call ‘mock trials’, and I have gladly accepted
the invitation of your President, Professor Löffler, to
explain to you more fully the relation of this method
to psychology.

You are all acquainted with the game played at
parties, where a word is called out at random and some-
one has to add a second word forming a compound
with the first—for example, ‘steam’, ‘ship’, giving the
compound word ‘steam-ship’. It is nothing more
than a modification of this children’s game which the
Wundt school has introduced into psychology under
the name of ‘association test’, and it omits only one

¹Lecture delivered to Prof. Löffler’s Seminar in June 1906. First
published in the Archiv für Kriminalanthropologie und Kriminalistik,
von H. Gross, Bd. 26, 1906; reprinted in Sammlung, Zweite Folge.
[Translated by E. B. M. Herford.]

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rule of the game. The experiment is as follows: a
word (termed the ‘stimulus-
word’) is called out to
the subject, and he replies as quickly as possible with
some other word that occurs to him (the so-
called
‘reaction’), his choice of this reaction not being
restricted in any way. The points to be specially
observed are the time required for this reaction, and
the very variable relation of the stimulus-
word to the
reaction-
word. Now it cannot be claimed that much
fresh knowledge was gained as the immediate result of
these experiments. This was to be expected, however,
since they were carried out without any decided aim
in view, and without any guiding principle which
could be brought to bear on the results. The experi-
ments only became significant and fruitful when
Bleuler in Zurich and his pupils, especially Jung,
began to pay attention to ‘association tests’. Their
experiments acquired practical value when the hypo-
thesis was applied that the connection between the
stimulus-
word and the reaction-
word could not be
one of chance, but must be determined by a pre-
existing group of ideas in the mind of the person
reacting.

It has become customary to call a group of ideas
of this kind, having an influence on the reaction to
the stimulus-
word, a ‘complex’. The influence works
either by the stimulus-
word actually touching a
complex directly or by the complex succeeding in
getting into touch with the word by intermediate links.
This determination of the reaction is a very remarkable
fact, as you can see by the undisguised amazement
expressed in the literature on the subject. The truth
of it admits of no doubt, however; for as a rule you
can lay bare the particular complex at work by asking
the subject of the experiment to give the reasons for
his reaction, and so explain a reaction which could not
otherwise be understood. Examples like those given
by Jung, on pp. 6 and 8–9 of his treatise,¹⁾ are well

¹⁾Jung, Die psychologische Diagnose des Tatbestandes, 1906.

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suited to make us doubt the existence of chance and
of what appears to be arbitrariness in mental processes.
Let us consider for a moment the early history of
the view put forward by Bleuler and Jung, namely,
that these reactions are determined by complexes in
the mind of the subject. In 1901 I published a work ¹
in which I pointed out that a whole series of actions
previously held to be due to chance were on the
contrary strictly determined, and to that extent I have
therefore contributed towards circumscribing the field
of mental free will. I took as examples slight slips of
memory, tongue or pen, and the mislaying of objects.
I showed that when someone makes a slip of the tongue
it is not chance, nor difficulty in articulation either,
nor similarity in sound that is responsible; but that
in every case a disturbing group of ideas—a complex
—can be brought to light which alters the meaning of
the intended speech under the guise of an apparent
slip of the tongue. Further, I took for consideration
people’s little actions that are apparently purposeless
and due to chance—their petty habits of playing
fiddling with things and so on—and revealed them as
‘symptomatic actions’ connected with a hidden mean-
ing and intended to give this hidden meaning un-
obtrusive expression. I found, moreover, that even a
Christian name cannot occur to the mind by chance,
but must have been determined by a powerful complex ;
and that the numbers that one may think one chooses
arbitrarily can be traced to the influence of such a
hidden complex. A few years later a colleague of
mine, Dr. Alfred Adler, was able to substantiate this
most astonishing statement of mine by some very
striking examples.² Once one has accustomed oneself
to such a conception of determinism in mental pro-
cesses it is a justifiable deduction, drawn from the
study of the psychopathology of everyday life, that the

¹Freud, Zur Psychopathologie des Alltagslebens.

²Adler, Drei Psychoanalysen von Zahleneinfällen und obsedierenden
Zahlen, 1905.

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associations given by a person under experimental
conditions are not arbitrary but are conditioned by
the operation of an idea in his mind.

Now let us return to the association test. In the
kind of experiment we have already referred to, it is
the subject under examination who gives us the origin
of his reactions, and this fact has made these experi-
ments somewhat unprofitable from the point of view of
legal cases. But might we not change the order of
things, somewhat as in an equation with several un-
knowns which can be solved by interchanging one or
the other (taking either the a or the b as the x we are
seeking) ? Up to now in our experiments the complex
has been unknown to us. We tested with any chance
stimulus-word, and the subject under examination
revealed the complex which was brought to expression
by means of this word. Suppose we reverse the
process. Suppose we start with some known complex,
take chosen words with which to stimulate reactions
in the subject, and put x in the mind of the subject
himself. Is it possible on this basis thus to decide
whether the known complex is present in the subject
under examination, by a study of the associations given
as reactions ? You observe that this method of
enquiry corresponds exactly with that adopted by an
examining judge who wishes to discover whether an
acknowledged fact of which he is aware is also known
to the accused in the rôle of perpetrator. It seems that
Wertheimer and Klein, two pupils of Hans Gross, the
Professor of Criminal Law in Prague, were the first ¹
to put into practice this change in the methods of
investigation, a most important change from your
point of view.

You know already from your own experience that
in such investigations several points in the reactions
help to decide whether the subject under examination
possesses a complex which you are testing with your
stimulus-word. I will enumerate them for you in

¹ According to Jung, op. cit.

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order. (1) An unusual content in the reaction which
requires explanation. (2) Increase of reaction-
time, for stimulus-words which have touched the complex
are reacted to after considerable delay (the delay may
be several times longer than the normal reaction-time).
(3) Faulty reproduction. You know what remarkable
fact is meant by this. When a longish series of
stimulus-words is repeated after a short interval, the
subject will give the same reactions except where the
stimulus-word has touched a complex, and then another
reaction will often be substituted. (4) Perseveration
(or perhaps better ‘after-effects’). It often happens
that the action of the complex which has been awakened
through an effective (‘critical’) stimulus continues
after that word has been passed and changes the
reactions (e.g. by lengthening the reaction-time) to the
non-critical stimuli which follow immediately after.
When all or several of these signs are simultaneously
present it proves that the complex known to us is
present as a disturbing element in the mind of the
person under examination. The disturbance is attri-
buted to the fact that the complex present in the mind
of the subject is charged with feeling, and enabled to
distract his attention from the task of reacting. This
irregularity is regarded as a ‘mental betrayal’.

I know that you are at the moment concerned with
the potentialities and pitfalls of this experimental
technique, the aim of which is to lead the accused to
betray himself objectively. I would therefore draw
your attention to the fact that an exactly similar
method of discovering hidden material in the mind has
been practised for more than a decade in a very
different field of investigation. It is my purpose to
lay before you the points of resemblance and difference
in the two cases.

This field is indeed a very different one from yours.
I refer to the therapy for certain nervous complaints,
the so-called psychoneuroses, of which hysteria and
obsessions may be taken as examples. In this case

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the method is called psycho-
analysis ; it was evolved
by me from the ‘cathartic’ method of therapeutics
first practised by Breuer in Vienna.¹ To allay your
surprise I must work out an analogy between the
criminal and the hysteric. In both we are concerned
with a secret, with something hidden. But in order
that I may not appear paradoxical, I must point out
the difference at once. In the case of the criminal it is
a secret which he knows and hides from you, but in the
case of the hysteric it is a secret hidden from him, a
secret he himself does not know. How is this possible?
Now, through laborious investigations, we know
that all these illnesses are the result of the patient
having succeeded in repressing certain ideas charged
with strong feeling, together with the wishes that arise
from them, in such a way that they play no part in his
deliberate thought-
processes, cannot enter into his
conscious thoughts, and therefore remain unknown to
him. But from this repressed psychic material
(complexes) are generated the somatic and psychic
symptoms, which plague the patient just as a guilty
conscience does. In this one point, therefore, the
difference between the criminal and the hysterical is
fundamental.

The task of the therapeutist is, however, the same
as the task of the judge ; he must discover the hidden
psychic material. To do this we have invented
various methods of detection, some of which lawyers
are now going to imitate.

It will interest you, from the point of view of your
own profession, to hear how we physicians proceed in
psycho-
analysis. When the patient has recapitulated
his history for the first time, we ask him to be com-
pletely passive and to allow all thoughts that occur to
him free expression without any selection, criticism or
suppression on his part. We start, as you see, with an
assumption he does not in any way share, that his
thoughts are not arbitrary but are determined by

¹Breuer und Freud, Studien über Hysterie, 1895.

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their reaction to his secret complexes, and may be
regarded to a certain extent as derived from these
complexes. You will note it is the same assumption
which helped us to arrive at the significance of the
association test. But although we have impressed
upon the patient the rule to communicate all his
thoughts, he does not seem able to keep to it. He
holds back first this and then the other thought, and
gives various reasons to account for this, either that
it is unimportant or that it is irrelevant, or that it is
quite meaningless. We insist that he should com-
municate the thought in spite of these objections and
that he should follow it up; for this criticism is pre-
cisely evidence to us that the thought belongs to the
‘complex’ which we are seeking. It is precisely in
this attitude of the patient that we recognize a mani-
festation of his ‘resistance’, which will continue
through the whole course of his treatment. I would
only indicate briefly that this conception of resistance
has gained the utmost significance for us in under-
standing the origin of the illness as well as the
mechanism of the healing process.

Now a similar attitude of criticism of associations
does not occur directly in your tests, whereas we are
able in psycho-analysis to observe all those striking
signs of a ‘complex’ which you notice in your tests.
Even when the patient no longer ventures to evade the
rule which has been imposed upon him, we notice that
sometimes, nevertheless, he hesitates and stops, some-
times pauses in his flow of ideas. Every hesitation of
this kind is to us an expression of his resistance and
an indication of its relation to the ‘complex’. Indeed,
for us it is the most important sign of such a signifi-
cance, just as for you the lengthening of reaction-time
is a very important indication. We are accustomed
to interpret the hesitation in this light even when the
content of the idea held back seems to contain nothing
difficult, and when the patient assures us he cannot
imagine why he should hesitate to communicate it.

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The pauses which occur in psycho-analysis are as a
rule many times longer than the delays which you
notice in reaction-tests.

The second of your complex-indicators, the altera-
tion of the reaction-content, also plays its part in the
technique of psycho-analysis. We are wont to regard
even the smallest digressions from the ordinary form of
expression in our patients generally as a sign of some
hidden meaning; and for the time being we lay our-
selves open to the ridicule of the patient by such
interpretations. We are literally on the alert for
remarks that hint at a double meaning, and in which
the hidden meaning glimmers through the harmless
expression. Not only patients, but colleagues ignorant
of the technique of psycho-analysis and its immediate
bearings, are incredulous and accuse us of petty jokes
and of playing with words, but we are nearly always in
the right. After all, it is not difficult to understand
that the only way in which a carefully guarded secret
betrays itself is by distant, or at best by ambiguous,
allusions. At last the patient becomes accustomed to
disclosing, by means of so-called ‘indirect representa-
tion’, all we require in order to discover the complex.

The third of your complex-indicators, that of error
in reproduction (such as you observe when something
repeated a second time shows a discrepancy with the
first), is also made use of in a narrower field in the
technique of psycho-analysis. One task which is often
set us is the interpretation of dreams, i.e. the trans-
lation of the remembered dream-content into its
hidden meaning. It sometimes happens that we are
uncertain at which point to begin the task, and in
this case we make use of a rule discovered empiric-
ally, according to which we let the dreamer recount
his dream again. In doing so he usually changes
the expressions used in some parts whilst faithfully
repeating the rest. These points, in regard to which
discrepancies arise in the two accounts or which are
omitted in the second telling, are the points to which

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we pay special attention ; for the inaccuracy indicates
that the complex is being touched, and promises the
best approach to the secret meaning of the dream.¹⁾

You will not now suppose that the points of simi-
larity are exhausted when I state that a phenomenon
corresponding exactly to perseveration does not appear
in psycho-analysis. This apparent difference only
arises from the particular conditions of your test.
For you do not allow the effect on the complex time
to develop itself. It has scarcely begun to act when
you distract the attention of the subject under examina-
tion by a new and probably harmless stimulus-word,
and then you may observe that the subject delays,
being still occupied with the complex in spite of your
interference. On the other hand, in psycho-analysis
we avoid such interruptions, keeping the patient
occupied with his complex, and since in our method
everything is, so to speak, ‘perseveration’, we cannot
observe the phenomenon as an isolated occurrence.

We may claim that it is by means of this kind of
technique that we, on the whole, succeed in making
the patient aware of what he has repressed, of his
secret, and thus in removing the psychological cause
of the symptom from which he is suffering. Before
you draw any conclusions as to the possibilities these
successful results offer for your profession, we will
consider some points of difference in the psychological
situation in the two cases.

We have already pointed out the chief difference.
With the neurotic, the secret is hidden from his own
consciousness ; with the criminal it is hidden only from
you. In the first, we have a genuine ignorance (though
not altogether complete), whilst in the latter this
ignorance is merely simulated. Connected with this is
another difference more important in practice. In
psycho-analysis the patient consciously helps to over-
come his resistance because he expects to gain some-
thing from the investigation—cure. The criminal, on

¹⁾Cf. Freud, Die Traumdeutung.

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the contrary, does not co-operate with you ; he would
be working against his whole ego. As a compensation
for this, however, you are only endeavouring to arrive
at a conviction objectively ; whereas our therapy
demands that the patient himself should also arrive at
the same conviction subjectively. It remains to be
seen, however, how far your difficulties are increased or
altered by the lack of co-operation on the part of the
subject ; for this is a situation which you can never
bring about in your class experiments, since your
colleague playing the part of the accused is, in spite
of his conscious determination not to betray himself,
your co-worker and assistant.

Looking more deeply into the comparison of the
two situations, it will become clear to you that on the
whole psycho-
analysis is concerned with a simple,
special form of the problem of discovery of hidden
material in the mind ; whereas in your profession, on
the other hand, the problem is a much broader one.
The case of the psychoneurotic is regularly concerned
with a repressed sexual complex (in the widest sense
of the term), but this is a difference which does not
concern you. There is another point, however, which
does. The aim of psycho-analysis is identical in all
cases ; the analysis aims at laying bare the complexes
which have been repressed as a result of the painful
feelings associated with them, and which produce
signs of resistance when there is an attempt to bring
them into consciousness. The resistance is localized ;
it arises at the boundary between the unconscious
and the conscious. In your case we are concerned with
a resistance originating entirely within the conscious life.
You cannot simply discount this difference. You must
first determine experimentally whether the conscious
resistance betrays itself by exactly the same signs as
the unconscious resistance does. Further, in my
opinion you cannot yet be certain whether you may
interpret your objective signs of a ‘complex’ as
resistance in the same way that we psychotherapeutists

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do. It may happen in the case of your experimental
subjects, though not very often in the case of criminals,
that the complex you touch on is one tinged with
pleasure, and the question then arises whether this
complex will give the same reaction as one charged
with painful affect.

I would also lay stress on the considera-
tion that your experiments may possibly be subject to a com-
plication which naturally does not arise in psycho-
analysis. You may be led astray in your examination
by a neurotic who reacts as though he were guilty even
though he is innocent–because a lurking sense of guilt
already existing in him assimilates the accusation made
against him on this particular occasion. You must
not regard this possibility as an idle one ; you have only
to think of the nursery, where you can often observe
it. It sometimes happens that a child who has been
accused of a misdeed denies the accusation, but at the
same time weeps like a sinner who has been caught.
You might think that the child lies, even while it
asserts its innocence ; but this need not be so. The
child is really not guilty of the specific misdeed of which
he is being accused, but he is guilty of a similar mis-
demeanour of which you know nothing and of which
you do not accuse him. He therefore quite truly denies
his guilt in the one case, but in doing so betrays his
sense of guilt with regard to the other. The adult
neurotic behaves in this and in many other ways just
as the child does. People of this kind are often to be
met, and it is indeed a question whether your technique
will succeed in distinguishing such self-accused persons
from those who are really guilty. Finally, one more
point : you know that, according to law, you may not
use any procedure which takes the accused off his
guard. He will therefore be aware that his whole
effort must be directed to avoid betraying himself in
your experiments ; and a further question then arises,
whether you can expect the same reactions when
attention is directed towards the complex as when it

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is diverted from it? How far does the conscious
intention to avoid self-betrayal affect reactions in
different people?

Just because the situations on which your investiga-
tions are based can be so manifold, psychology takes
a very lively interest in its results, and one would like
to suggest that you should not too readily doubt their
practical value. Although my work lies so far from
the sphere of your legal practice, allow me to make one
other suggestion. In spite of the fact that experiments
in class are essential for your training and for the
examination of witnesses, you will never be able to
reproduce in your experiments the same psychological
situation as in the examination of a guilty person in
the criminal court. They remain ‘mock trials’, and
no practical conclusions can be based on them for use
in a criminal case. If we do not wish to give up
experimental study, the following alternative suggests
itself: it might be arranged for you, even to the extent
of becoming a duty, to undertake such examinations
for a series of years in all actual cases of accusation
without your conclusions being allowed to influence the
decision of the judge. It would, indeed, be best if the
latter never knew the conclusions which you drew from
your experiments with regard to the guilt of the
accused. After years of collecting and comparing the
results thus obtained, all doubt with regard to the value
of this psychological method of examination should be
solved. I know, however, that the realization of this
proposal does not rest only with you or with your
eminent teachers.