Porohovshchikov P.S. The art of speech in court. - Tula, "Autograph" publishing house, 2000. Reproduced from the 1910 edition.
The main task of the book is the study of judicial speaking and the establishment of its methods.
The book is addressed to students of law schools, as well as prosecutors and lawyers.
The art of speech in court
Instead of a preface
Chapter I. About the syllable
The purity of the syllable
On the precision of a syllable
Wealth of words
Subject knowledge
weedy thoughts
About propriety
Simplicity and strength
About euphony
Chapter II. Flowers of eloquence
images
Metaphors and comparisons
Antithesis
Concessio*(51)
Sermocinatio*(54)
Other rhetorical turns
General Thoughts
Chapter III. Meditation*(66)
The search for truth
Paintings
About Continuous Operation
Speech scheme
Chapter IV. About psychology in speech
Characteristic
Everyday psychology
About the motive
Chapter V. Speech Preprocessing
Legal assessment of the act
Moral assessment of the crime
About creativity
Artistic processing
Idea
Dispositio*(98)
Chapter VI. judicial investigation
About interrogation of witnesses
On the credibility of testimonies
On the examination of testimonies
About expertise
Chapter VII. The art of arguing in court
Some rules of dialectics
Probatio
Refutatio*(127)
Exaggeration
Repetition
About unspoken
Possible and probable
About common sense
On the moral freedom of the speaker
Chapter VIII. About pathos
Reason and feeling
Feelings and Justice
Paphos as inevitable, lawful and fair
The art of pathos
The pathos of facts
Chapter IX. Final remarks
Written work and improvisation
On the attention of listeners
A few words to the accuser
A few words to the defender
Notes
Instead of a preface
"The Art of Speech in Court" - this is the name of the book by P. Sergeich (P. S. Porokhovshchikov), published in 1910, whose task is to study the conditions of judicial eloquence and establish its methods. The author, an experienced judicial figure, faithful to the traditions of the best times of the Judicial Reform, has invested in his work not only an extensive acquaintance with examples of oratory, but also a rich result of his observations from the realm of the living word in the Russian court. This book is timely in two respects. It contains a practical, based on numerous examples, edification on how to and - even more often - how not to speak in court, which, apparently, is especially important at a time when the swagger of methods of judging develops at the expense of their expediency. It is timely also because, in essence, only now, when many years of experience in verbal judicial competition have been accumulated and entire collections of accusatory and defensive speeches have appeared in print, has it become possible to thoroughly study the foundations of judicial eloquence and a comprehensive assessment of the practical methods of Russian judicial orators ...
The book of P. S. Porokhovshchikov is a complete, detailed and rich in erudition and examples of research on the essence and manifestations of the art of speech in court. The author alternates between a receptive and sensitive observer, a subtle psychologist, an enlightened lawyer, and at times a poet, thanks to which this serious book is replete with lively everyday scenes and lyrical passages woven into a strictly scientific canvas. Such, for example, is the story of the author, cited as proof of how much creativity can influence a judicial speech, even in a rather ordinary case. In those recent days, when there was still no talk of freedom of religion, the police, according to the janitor, came to the basement housing, which housed a sectarian chapel. The owner - a small craftsman - standing on the threshold, rudely shouted that he would not let anyone in and would cut down anyone who tried to enter, which caused the drawing up of an act on a crime under article 286 of the Penal Code and entailing a prison of up to four months or a fine not more than one hundred rubles. "The comrade of the prosecutor said: I support the indictment. The defense lawyer spoke, and after a few moments the whole hall turned into a tense, fascinated and alarmed rumor," the author writes. "He told us that the people who found themselves in this basement chapel did not gather there for ordinary worship, that it was a particularly solemn, the only day in the year when they were cleansed of their sins and found reconciliation with the Almighty, that on this day they renounced from the earthly, ascending to the divine, immersed in the holy of holies of their souls, they were inviolable to worldly power, were free even from its lawful prohibitions. steps, where the janitors were pushing and where, behind the door in a low, wretched room, the hearts of those praying were carried away to God... illuminated hall, but the arches parted above us, and from our chairs we looked directly into the starry sky, from time to eternity ... "
One can disagree with some of the author's statements and advice, but one cannot help but recognize his book as of great importance for those who are subjectively or objectively interested in judicial eloquence as a subject of study, or as an instrument of their activity, or, finally, as an indicator of social development at a given time. time. Four questions usually arise before each of these persons: what is the art of speech in court? What qualities do you need to have to become a legal orator? what means and methods can the latter have at its disposal? what should be the content of the speech and its preparation? P.S. Porokhovshchikov gives a detailed answer to all these questions, scattered over nine chapters of his extensive book. Judicial speech, in his opinion, is a product of creativity, the same product as any literary or poetic work. The latter are always based on reality, refracted, so to speak, in the prism of creative imagination. But the same reality lies at the basis of judicial speech, reality for the most part rough, harsh. The difference between the work of a poet and a judicial orator lies mainly in the fact that they look at reality from different points of view and, accordingly, draw from it the appropriate colors, situations and impressions, processing them then into arguments for the prosecution or defense or into poetic images. “A young landowner,” says the author, “slapped a too bold admirer. For dry lawyers, this is Article 142 of the Charter on punishments, private prosecution, three months of arrest; the thought quickly ran along the usual path of legal assessment and stopped. A. Pushkin writes "Count Nulin", and half a century later we read this article 142 and cannot get enough of it. At night, a passerby was robbed in the street, his fur coat was torn off ... Again, everything is simple, rude, meaningless: robbery with violence, 1642 article of the Code - prisoners separation or hard labor up to six years, and Gogol writes "The Overcoat" - a highly artistic and endlessly dramatic poem. There are no bad plots in literature; there are no unimportant cases in court and there are none in which an educated and impressionable person could not find the basis for artistic speech ". The starting point of art lies in the ability to catch the particular, to notice what distinguishes a known object from a number of similar ones. For an attentive and sensitive person, in every insignificant case there are several such characteristic features, they always have ready-made material for literary processing, and judicial speech, as the author aptly puts it, "is literature on the fly." Hence, in fact, the answer to the second question follows: what is needed in order to be a judicial orator? The presence of innate talent, as many people think, is by no means an indispensable condition without which one cannot become an orator. This is recognized in the old axiom that oratores fiunt *(1) . Talent facilitates the task of the orator, but it alone is not enough: mental development and the ability to master the word are needed, which is achieved by thoughtful exercise. In addition, other personal properties of the speaker, of course, are reflected in his speech. Between them, of course, one of the main places is occupied by his temperament. The brilliant characterization of temperaments made by Kant, who distinguished between two temperaments of feelings (sanguine and melancholic) and two temperaments of activity (choleric and phlegmatic), found a physiological basis in Fulier's work On Temperament and Character. It applies to all public speakers. The difference in the temperaments and moods of the speaker caused by them is sometimes found even against his will in the gesture, in the tone of voice, in the manner of speaking and the way he behaves in court. The typical mood inherent in this or that speaker's temperament is inevitably reflected in his attitude to the circumstances he speaks of, and in the form of his conclusions. It is difficult to imagine a melancholic and a phlegmatic person acting on the listeners with indifference, slow speech or hopeless sadness, "leading despondency to the front," in the figurative expression of one of the orders of Emperor Paul. In the same way, the speaker's age cannot but affect his speech. A person whose “word” and words were imbued with youthful ardor, brightness and courage, becomes less impressionable over the years and acquires more worldly experience. Life teaches him, on the one hand, more often than in his youth, to recall and understand the words of Ecclesiastes about "vanity of vanities", and on the other hand, develops in him much greater self-confidence from the consciousness that he - an old tried and tested fighter - needs attention and trust turns out to be very often in advance and on credit, before he even begins his speech, which often consists in an unconscious repetition of himself. Judicial speech should contain a moral assessment of the crime, corresponding to the highest worldview of modern society. But the moral views of society are not as stable and conservative as written laws. They are affected by the process of slow and gradual, then abrupt and unexpected reassessment of values. Therefore, the speaker has a choice between two roles: he can be an obedient and confident spokesman for the prevailing views, in solidarity with the majority of society; he may, on the contrary, act as a whistleblower of common misconceptions, prejudices, inertness or blindness of society and go against the current, defending his own new views and beliefs. In choosing one of these paths, outlined by the author, the age of the orator and his characteristic moods must inevitably affect.
The content of a judicial speech plays no less a role than art in its construction. Everyone who has to speak in public, and especially in court, has an idea: what to say, what to say and how to say? The first question is answered by simple common sense and the logic of things, which determines the sequence and connection between individual actions. What to say - the same logic will indicate, on the basis of an accurate knowledge of the subject about which one has to narrate. Where it is necessary to talk about people, their passions, weaknesses and properties, worldly psychology and knowledge of the general properties of human nature will help to illuminate the inner side of the relations and motives under consideration. At the same time, it should be noted that the psychological element in speech should not at all be expressed in the so-called depth of psychological analysis, in unfolding the human soul and digging into it in order to find very often quite arbitrarily the movements and impulses assumed in it. A lantern for illuminating these depths is appropriate only in the hands of a great artist-thinker, operating on his own created image. Well, if you imitate, then not Dostoevsky, who bores the soul like the soil for an artesian well, but Tolstoy's amazing powers of observation, which are mistakenly called psychological analysis. Finally, conscience must indicate to the judicial orator how moral it is to use one or another coverage of the circumstances of the case and the conclusion possible from their comparison. Here, the main role in the speaker's choice of this or that path belongs to his consciousness of his duty to society and to the law, consciousness guided by Gogol's testament: "You must deal honestly with the word." The foundation of all this, of course, must be an acquaintance with the case in all its smallest details, and it is difficult to determine in advance which of these details will acquire special power and significance for characterizing an event, persons, relationships ... To acquire this acquaintance, one does not need to stop at what labor, never considering it fruitless. “Those speeches,” the author quite rightly points out, “which seem to be said simply, are in fact the fruit of a broad general education, long-standing frequent thoughts about the essence of things, long experience and - besides all this - hard work on each individual case.” Unfortunately, it is precisely here that our "laziness of the mind", noted in heated words by Kavelin, most often affects.
In the question: how to speak, the real art of speech comes to the fore. The writer of these lines, while lecturing on criminal justice at the School of Law and at the Alexander Lyceum, had to listen more than once to the request of his listeners to explain to them what is needed in order to speak well in court. He always gave the same answer: you need to know well the subject you are talking about, having studied it in detail, you need to know your native language, with its richness, flexibility and originality, so as not to look for words and phrases to express your thoughts and Finally, you have to be sincere. A person usually lies in three ways: he does not say what he thinks, he thinks not what he feels, that is, he deceives not only others, but also himself, and, finally, he lies, so to speak, in a square, saying not what he thinks, and thinking is not what he feels. All these types of lies can find a place for themselves in a judicial speech, internally distorting it and weakening its strength, for insincerity is already felt when it has not yet become, so to speak, tangible ... It is significant that Bismarck, in one of his parliamentary speeches, characterizing eloquence as a dangerous gift, which, like music, has a captivating power, found that in every speaker who wants to act on his listeners, there must be a poet, and if he is master of his language and thoughts, he seizes the power to act on those who listens to him. Two chapters are devoted to the language of speech in the work of P. S. Porokhovshikov, with many correct thoughts and examples. The Russian language, both in print and in oral speech, has undergone some kind of fierce damage in recent years ... The author cites a number of words and phrases that have recently entered the practice of jurisprudence without any reason or justification and completely destroy the purity of the style. Such, for example, are the words - fictitious (imaginary), inspire (inspire), dominant, simulation, trauma, precarity, base, vary, tax (instead of punish), corrective, defect, questionnaire, detail, dossier (production), adequately, cancel , ingredient, stage, etc. Of course, there are foreign expressions that cannot be accurately translated into Russian. These are those cited by the author - absenteeism, loyalty, compromise; but we use terms whose meaning is easily conveyed in Russian. In my judicial practice, I have tried to replace the word alibi, which is completely incomprehensible to the vast majority of the jury, with the word otherness, which is fully consistent with the concept of alibi, and the title of the chairman's closing speech to the jury - summary - with the name "guiding parting words", characterizing the purpose and content of the chairman's speech. This replacement of the French word resume, it seemed to me, was met with sympathy by many. In general, the habit of some of our speakers to avoid the existing Russian expression and replace it with a foreign or new one reveals little thoughtfulness in how one should speak. A new word in an already established language is excusable only when it is unconditionally necessary, understandable and sonorous. Otherwise, we run the risk of returning to the disgusting distortions of the Russian official language after Peter the Great and almost before the reign of Catherine, committed, moreover, using the expressions of that time, "without any reason for beating our humor."
But it is not only the purity of syllable that suffers in our judicial speeches: the accuracy of the syllable also suffers, replaced by an excess of words to express sometimes a simple and clear concept, and these words are strung one after another for the sake of heightening effect. In one not too long accusatory speech about the extremely dubious torture of a adopted girl by a woman who took her in, the judges and jury heard, according to the author, such passages: “The testimony of the witnesses in the main, in the essential, basically coincides; depicts in all its power, in its entirety, in its entirety, such treatment of a child, which cannot but be recognized as bullying in all forms, in all senses, in all respects; what you have heard is terrible, it is tragic, it surpasses all limits, it trembles all the nerves, it raises the hair on end ... "The speeches of most judicial orators suffer from inaccuracy in style. We constantly say "internal conviction", "external form" and even - harribile dictu *(2) - "for pro forma". With the habitual carelessness of speech, there is no need to wait for the correct arrangement of words, but meanwhile this would be impossible if the weight of each word in relation to others were evaluated. Recently, an ad was printed in the newspapers: "actor dogs" instead of "dog actors." It is worth rearranging the words in the popular expression "blood with milk" and saying "milk with blood" in order to see the meaning of a single word put in its place. The author, in turn, refers to the shortcomings of judicial speech "weedy thoughts", that is, commonplaces, hackneyed (and not always correctly cited) aphorisms, reasoning about trifles, and in general any "gag" that does not go to the point, as they called it in the magazine world filling empty spaces in a book or newspaper. He points, then, to the need for propriety. "According to the sense of elegance inherent in each of us," he writes, "we are susceptible to the difference between decent and inappropriate in other people's words; it would be good if we developed this susceptibility in relation to ourselves." But this, to the great regret of those who remember the best morals in the judiciary, is not. Modern young orators, according to the author, do not hesitate to talk about witnesses: a kept woman, a mistress, a prostitute, forgetting that the utterance of these words constitutes a criminal offense and that freedom of judicial speech is not the right to insult a woman with impunity. In the past, this was not the case. “You know,” says the accuser in the example cited by the author, “that between Jansen and Akar there was a great friendship, an old friendship, turning into family relations, which allow the opportunity to dine and breakfast with her, manage her cash desk, keep accounts, almost live with her ". The idea is understandable, the author adds, and without insulting rude words.
To the chapter on the "colors of eloquence", as the author somewhat ironically calls the elegance and brilliance of speech - this "italics in print, red ink in the manuscript", - we find a detailed analysis of the rhetorical turns characteristic of judicial speech, and in particular images, metaphors, comparisons , contrasts, etc. Particular attention is paid to images, and quite thoroughly. A person rarely thinks in logical terms. Any living thinking, directed not at abstract objects defined with mathematical precision, such as time or space, certainly draws for itself images from which thought and imagination originate or to which they aspire. They imperiously invade individual links of a whole chain of thoughts, influence the conclusion, suggest determination and often cause in the direction of the will that phenomenon, which in the compass is called deviation. Life constantly shows how the sequence of the mind is destroyed or modified under the influence of the voice of the heart. But what is this voice, if not the result of fear, tenderness, indignation or delight in one way or another? That is why the art of speech at the court contains the ability to think, and consequently, to speak in images. Analyzing all other rhetorical turns and pointing out how our speakers neglect some of them, the author extremely skillfully quotes the introduction to the speech of the famous Chaix-d "Est-Ange in the high-profile case of La Roncière, who was accused of attempting to chastity a girl, noting in a separate column, next to with the text, the gradual use by the defender of a wide variety of turns of speech.
Although, as a matter of fact, the conduct of a judicial investigation is not directly related to the art of speech in court, a whole, very interesting chapter is devoted to it in the book, obviously, in the consideration that during the judicial investigation and especially during cross-examination, a judicial contest continues, in which speeches enter only as final chords. In this competition, of course, the interrogation of witnesses plays the main role, because the debate of the parties on individual procedural actions is relatively rare and has a strictly businesslike character, enclosed in a narrow and formal framework. Our literature presents very few works devoted to the interrogation of witnesses. The psychology of witness testimony and the conditions that affect the reliability, nature, volume and form of these testimony are especially poorly developed. I tried to fill this gap as best I could in the introduction to the fourth edition of my "Judicial Speeches" in the article "Witnesses at the Trial" and warmly welcome the 36 pages that P. S. Porohovshchikov devotes to the interrogation of witnesses, giving a number of burning everyday pictures, depicting thoughtlessness interrogating and supplying judicial figures with experienced advice, presented with vivid evidence.
The volume of this article does not allow touching on many parts of the book, but it is impossible not to point out one original place in it. "There are eternal, insoluble questions about the right to judge and punish in general," says the author, "and there are those that are created by the collision of the existing order of justice with the mental and moral requirements of a given society in a certain era." Here are a few questions of both kinds, which remain unresolved to this day and which have to be reckoned with: what is the purpose of punishment? Can a defendant be acquitted when the term of his pre-trial detention is longer than the term of the punishment that threatens him? can the defendant be acquitted on the grounds that if I were in his place I would have acted the same way as he? can the impeccable past of the defendant serve as a basis for acquittal? can he be blamed for immoral remedies? can the defendant be acquitted because his family is threatened with poverty if he is convicted? Is it possible to condemn a person who killed another in order to get rid of physical or moral torture on the part of the murdered? Can a minor accomplice be acquitted on the grounds that the main culprit went unpunished due to the negligence or bad faith of officials? Is a sworn testimony more credible than an unsworn testimony? what significance can the cruel miscarriages of justice of past times and other peoples have for this process? Do the jurors have the moral right to consider the first verdict in a cassated case, if it turned out during the judicial investigation that the verdict was incorrectly annulled, for example, under the pretext of a violation repeatedly recognized by the Senate as insignificant? Do the jurors have a moral right to an acquittal decision due to the biased attitude of the presiding judge towards the defendant? etc. To the best of his ability and moral understanding, the judicial orator must thoroughly think through these questions, not only as a lawyer, but also as an enlightened son of his time. An indication of these questions in their entirety is found in our legal literature for the first time with such completeness and frankness. Undoubtedly, they often arise before the practicing lawyer, and it is necessary that the inevitability of one or another of their decisions does not take him by surprise. This decision cannot be based on the impassive letter of the law; considerations of criminal policy and the imperative voice of judicial ethics must find a place in it, this non scripta, sed nata lex *(3) . By posing these questions, the author complicates the speaker's task, but at the same time ennobles it.
Turning to some special advice given by the author to lawyers and prosecutors, we must first of all note that, speaking of the art of speech in court, he vainly confines himself to the speeches of the parties. The chairman's guiding parting words to the jury also belong to the field of judicial speech, and its skillful presentation is always of great, and sometimes decisive, importance. The very requirements of the law - to restore the true circumstances of the case and not express a personal opinion about the guilt or innocence of the defendant - should force the chairman to pay special attention and thoughtfulness not only to the content, but also to the form of his parting words. The restoration of the broken or distorted perspective of the case in the speeches of the parties requires not only increased attention and sharpened memory, but also a deliberate construction of speech and special accuracy and clarity of expression. The need to teach the jury general grounds for judging the strength of the evidence, without expressing one's own view of the responsibility of the accused, imposes an obligation to be extremely careful with words in the performance of this slippery task. Pushkin's words are quite appropriate here: "Blessed is he who firmly rules with his word - and keeps his thought on his leash ..." The guiding parting word should be free from pathos, many of the rhetorical devices that are appropriate in the speeches of the parties cannot find a place in it; but if images replace in it the dry and stingy word of the law, then it corresponds to its purpose. In addition, it should not be forgotten that the vast majority of defendants during district sessions do not have defenders or sometimes receive such, appointed by the court from novice candidates for judicial positions, about whom the accused can say: "God deliver us from friends!" In these cases, the chairman is morally obliged to state in concise but lively terms what can be said in defense of the defendant, who very often asks in response to the accuser's speech to "judge in a divine way" or helplessly shrug his hands. Despite the fact that 1914 marked the fiftieth anniversary of the publication of the Judicial Statutes, the foundations and techniques of the leading parting words are little developed theoretically and are not developed at all practically, and until recently only three of my parting words could be found in the press - in the book "Judicial speech" and in the old "Judicial Bulletin" Deyer's speech on the well-known case of Nechaev and the first chairmanship experiments of the first days of the Judicial Reform, this "Freishitz, played out by the fingers of timid students." Therefore, one cannot help but regret that the author of The Art of Speech in Court did not subject his subtle critical assessment of the chairman's speech and his development of the latter's fundamental principles.
It is impossible not to fully join the series of practical advice to the prosecutor and defense counsel, with which the author concludes his book, dressing them in a witty form with worldly content drawn from many years of judicial experience, but it is difficult to agree with his unconditional demand for a written presentation of the forthcoming speech in court. “Know, reader,” he says, “that without writing a few fathoms or arshins of paper, you will not make a strong speech on a difficult matter. Unless you are a genius, take this as an axiom and prepare with a pen in your hand. You are not going to have a public lecture , not a poetic improvisation, as in "Egyptian Nights. You are going into battle. Therefore, in the author's opinion, in any case, the speech should be written in the form of a detailed logical reasoning; each separate part of it should be presented as an independent whole, and these parts then they are connected to each other into a common invulnerable whole. The advice to write speeches, although not always in such a categorical form, is also given by some classical Western authors (Cicero, Bonnier, Ortloff, etc.); it is given, as we have seen, by Mittermeier, and of our practical orators by Andreevsky. And yet we cannot agree with them. There is a big difference between improvisation, which our author opposes to written speech, and oral speech, freely formed in the meeting itself. Everything there is unknown, unexpected and unconditioned by anything - here there is ready-made material and time for its reflection and distribution. The fatal question: "Mr. Prosecutor! Your word," which, according to the author, takes by surprise a person who has not previously sat through his speech on a letter, does not address a random visitor, awakened from a nap, but to a person who, for the most part, wrote an indictment and who observed the preliminary investigation and, in any case, sat through the entire judicial investigation. There is nothing unexpected for him in this matter, and there is no reason to "grab hastily on everything that comes to hand", especially since in the case of "respectable excuses of the defendant", that is, in the event of the destruction of evidence and evidence that gave rise to brought to trial, the prosecutor has the right and even the moral obligation to refuse to support the prosecution. A pre-composed speech must inevitably embarrass the speaker, hypnotize him. Every speaker who writes his speeches has a jealously loving attitude towards his work and the fear of losing from it what is sometimes achieved by assiduous work. Hence the reluctance to pass in silence any part or place of one's prepared speech; I will say more - hence the desire to ignore those circumstances that became clear during the judicial investigation, which are difficult or impossible to fit into a speech or squeeze into its places, which seemed so beautiful or convincing in reading before the meeting. This connection of the speaker with his previous work should be especially increased if you follow the advice of the author, with which he - and, moreover, not jokingly - concludes his book: there were certainly twelve of them; three are enough, even two, the choice is not important: put your mother in front of you, your schoolboy brother, nanny or cook, batman or janitor. In my long judicial practice, I have heard speakers who acted according to this recipe. The heated dish they served to the court was unsuccessful and tasteless; their pathos sounded artificial, and the feigned animation made it tangible to feel that what the French call "une improvisation soigneusement preparee" is being pronounced before the audience, like a hardened lesson *(4) . Judicial speech is not a public lecture, says the author. Yes, it's not a lecture, but that's exactly why it shouldn't be written ahead. Facts, conclusions, examples, pictures, etc., given in a lecture cannot change in the audience itself: this is completely ready-made, established material, and on the eve, and just before the start, and after the lecture, it remains unchanged, and therefore here one can speak, if not about the written lecture, then at least about its detailed synopsis. Yes, and at a lecture, not only the form, but also some images, epithets, comparisons are unexpectedly created by the lecturer under the influence of his mood, caused by the composition of the audience, or unexpected news, or, finally, the presence of certain people ... Is it necessary to talk about those changes which the initial accusation and the very essence of the case undergo during the judicial investigation? Interrogated witnesses often forget what they showed to the investigator, or completely change their testimony under the influence of the oath taken; their testimonies, emerging from the crucible of cross-examination, sometimes lasting several hours, seem completely different, acquire sharp shades that were not even mentioned before; new witnesses appearing in court for the first time bring a new color to the "circumstances of the case" and provide data that completely change the picture of the event, its situation, and its consequences. In addition, the prosecutor, who was not present at the preliminary investigation, sometimes sees the defendant for the first time - and before him appears not the same person whom he pictured to himself, preparing for the prosecution or, on the advice of the author, writing an accusatory speech. The author himself says about live cooperation to the speaker of other participants in the process that not a single big deal is complete without the so-called insidents d "audience *(5) . The attitude of witnesses, experts, the defendant and the speaker's opponent to them or to previous events can be completely unexpected ... Expertise can make big changes. Newly summoned knowledgeable persons can sometimes give such an explanation of the forensic side of the matter, bring in such unexpected illumination of the meaning of certain phenomena or signs that all the piles on which the building was supported will be put forward from under the speech prepared in advance. Every old judicial figure, of course, has repeatedly witnessed such a "change of scenery." If there really were a need for a preliminary written presentation of the speech, then objections would usually be colorless and short. Meanwhile, in judicial practice there are objections that are stronger, brighter, more valid than the first speeches. I knew judicial orators who were distinguished by the special strength of their objections and even asked the chairmen not to interrupt the session before such, in order to immediately, "persistently, agitatedly and hastily," answer their opponents. Undoubtedly, a judicial orator should not appear in court empty-handed. The study of the case in all its details, reflection on some of the questions that arise in it, the characteristic expressions that come across in the testimony and written material evidence, numerical data, special names, etc. should leave their mark not only in the memory of the speaker, but also in his written notes. It is quite natural if, in complex cases, he sketches out a speech plan or its scheme (this is what Prince A.I. Urusov did, placing evidence and evidence in concentric circles on special tables), a kind of vade mecum *(6) in the forest of heterogeneous circumstances of the case. But this is still a long way from producing speech "in its final form." Therefore, I, who never wrote my speeches in advance, allow myself, as an old judicial figure, to say to young leaders, contrary to the author of The Art of Speech in Court: do not write speeches in advance, do not waste time, do not rely on the help of these lines composed in the silence of an office, slowly laid down on paper, but study the material carefully, memorize it, ponder it - and then follow Faust's advice: "Speak with conviction, words and influence on listeners will come by themselves!"
To this I would add one more thing: read the book of P. S. Porokhovshchikov with attention: from its instructive pages written in a beautiful, lively and bright style, it breathes with real love for the judicial case, turning it into a vocation, and not a craft ...
A. F. Koni
This above all: to thine own self be true,
And it must follow, as the night the day,
Thou canst not then be false to any man.
Hamlet, I, 3 *(7)
Chapter 7
The change in the rules on criminal evidence in our legal proceedings with the introduction of the Judicial Statutes had one undoubtedly harmful consequence: the abolished formal system also absorbed the scientific, logical doctrine of forensic evidence. This area of thought has remained completely alien to our judicial orators, and this gap shows itself very clearly: in the speeches of our accusers there is no clear and firm analysis of the evidence. And the worst thing is that our lawyers not only do not know this important branch of their science, but do not want to know. Meanwhile, this area has long been carefully developed in the West, especially in England. Not all of us know English, not all of us have the means to write out expensive English or German manuals. But a few months ago, the third edition of Prof. L. E. Vladimirova "The doctrine of criminal evidence". Not to mention the undoubted merits of this work, because one title is enough for such a book to become a desktop guide for every comrade prosecutor: it represents the only systematic study of this kind in our literature. I asked several lawyers I knew for their opinion on the new book and, to my surprise, found that none of them had even heard of it. If you want good advice, reader, put these notes aside and, before going any further, read Prof. Vladimirova. Be that as it may, I must assume that this area of criminal law is sufficiently familiar to you, and I turn to the practical rules of litigation, to the art of using the evidence established before the court during the debate.
Some rules of dialectics
Argumenta pro meliora parte plura sunt sempera 117 says Quintilian. And Aristotle wrote: on the side of truth there are always more logical proofs and moral arguments.
Truth cannot be exposed in logical inconsistency or deliberate deception; then she is true. He who sincerely strives for it can be bold in speeches; he will not be short of arguments either. According to the property of our mind, by virtue of the so-called association of ideas and thoughts, the speaker, in his guesses about what happened, in search of truth, also finds logical grounds for confirming his conclusions about facts; in other words, arguments are created by ourselves during preliminary reflection on speech: therefore, in order to teach the reader to find them, I refer him to what was said above in the fifth chapter. Let me just remind you that you need to think endlessly.
In cases with direct evidence, the main task of the speaker is to explain the history of the crime; in cases with circumstantial evidence - to prove or disprove the involvement of the defendant in the crime. But the basic rule is the same in both cases: meditez, meditez encore, meditez toujours, says a contemporary writer to an orator. Quintilian wrote the same two thousand years ago. Do not be satisfied with those considerations that suggest themselves. Non oportet offerentibus se contentum esse; quaeratur aliquid, quod est ultra. The best evidence is usually hidden in the details of the case; they are not so easy to find. Plurimae probationes in ipso causarum complexu reperiantur eaeque sunt et potentissimae, et minimum obviae 119 . These are not flowers in a summer meadow, where it is worth reaching out to collect as many as you like; these are fossil treasures hidden underground. The seeker works hard for a long time until he finds a precious vein in the bowels of the mountain or an ingot under the endless sandy surface. But the find will reward his quest: he will have gold. So it is in a judicial speech: an argument gleaned from the very essence of the case and its features is incomparably more convincing than any general passages.
The course of dialectics and eristics is not included in the subject of this book, and I cannot expand here on the rules of logic and on sophistry. There is a little book by Schopenhauer called "Eristics, or the Art of Debate"; in the Russian translation it costs 50 kopecks, in the German edition - 20 kopecks; each of us should have it in mind, as well as the fifth book of Mill's Logic on errors. This is necessary because any judicial speech is essentially a dispute, and the ability to argue is one of the main and most precious qualities of a speaker. I present below some rules of rhetoric from this area that I find most useful in criminal court. These are the rules of court battle tactics. But here it is necessary to note a feature that constitutes a significant difference between a judicial dispute and a scientific one.
Science is free to choose its means; a scientist considers his work completed only when his conclusions are confirmed by unconditional evidence; but he is not obliged to find a solution to his scientific riddle; if he lacks the means of research or refuses to work his head further, he will abandon his drawings and calculations and take up other things. The truth will remain in suspicion, and humanity will wait until a happier seeker is found. Not so in court; there is no arbitrary delay. Guilty or not? Need to answer.
There is a saying in our court: truth is the result of judgment. These words contain a share of bitter truth. Judgment does not establish the truth, but it decides the matter. The adversarial process is one of the imperfect forms of social order, judicial debate is one of the imperfect rituals of this imperfect process. The rules of judicial competition are to some extent conditional in nature: they do not proceed from the assumption of the moral perfection of people, but from considerations of expediency. Along with this, the realization that the consequence of a court decision may be unjust impunity or disproportionate punishment of the criminal, and sometimes the punishment of the innocent, turns the dispute between the prosecutor and the defense into a real battle. If a person who wields a sword goes out to duel with an inept opponent, he is free to spare him, not taking advantage of his superiority and the mistakes of the enemy. But if he has an equal opponent in front of him, and the fate of another person depends on the outcome of the battle, he will consider himself obliged to use his art to the fullest. In a judicial contest, this consciousness of fighting not for oneself, but for others, excuses a lot and more than it should, incites the ordinary person to abuse his art. In preparing for the trial and debate, every speaker knows that his opponent will use all his skill to remain victorious; He also knows that judges and juries, like people, can make mistakes.
Under such conditions, a person cannot refuse artificial methods of struggle. To do otherwise would be to go bare-handed against the armed.
R. Harris says: “You should not resort to artificial methods just to get a person convicted; but no one is obliged to refuse them just because the subject of speech is a criminal act. Your duty is to prove the guilt of the defendant before the jury "if you can do it, it is by honest means. To achieve this, you should convey the facts in their natural sequence (this is art), in the most concise form (this is art) and with the greatest simplicity (this is also art)." At one lengthy retreat in Yorkshire, Scarlet's lawyer, later Lord Ebinger, nicknamed the "verdict robber" for his constant success before the jury, spoke several times against the brilliant Broom. At the end of the session, one of their comrades asked one of the jurors about the impression he had taken from the trials.
Broom, a wonderful man, he answered, is a master of speech; and your Scarlet is not worth much. - That's how! I'm surprised. Why did you decide in his favor every time? - There is nothing surprising: he was just lucky; every time he turned out to be on the side of the one who was right. - Indeed, there was nothing to be surprised at, but the reason was different.
The main elements of a legal dispute are: probatio - proof and refutatio - refutation.
Probatio
1. In everything that is thought out, distinguish between the necessary and the useful, the inevitable and the dangerous. What is necessary should be analyzed to the end, leaving nothing unproven, explained to the point of complete obviousness, developed, strengthened, embellished, repeated tirelessly; it is enough to mention the useful; the dangerous must be eliminated from speech with the greatest diligence, and one must watch oneself so that by an accidental hint, by a careless word, one does not remind the opponent of a trump move; the inevitable must be resolutely recognized and explained, or not touched at all: it is implied by itself.
2. Don't forget the difference between argumentum ad rem and argumentum ad hominem.
Argumentum ad rem, that is, a consideration concerning the essence of the subject, is the best instrument of dispute, other things being equal. The court is looking for truth, and therefore in the idea of argumenta ad rem, that is, considerations, although convincing for a given person or several given persons, but not decisive in the essence of the dispute, should not be found in the debate. Under normal conditions, the argumentum ad hominem is the evidence of poverty given by the orator to his cause or to himself. But with unreliable judges, one has to use argumentis ad hominem that is convincing for the given composition of the court, for example, when the defendant and the judges belong to different and hostile classes or to warring political parties. In these cases, favoring real evidence over sham evidence can be a fatal mistake.
If in our military court a non-military speaker began his speech with the general proposition that military honor is not something different from honor in general, the judges would say to themselves: we have to listen to a person who argues about what he does not understand. If, on the contrary, he begins by admitting prejudice and says: there can be no doubt that military honor and civilian honor, so to speak, are completely different things, the judge-officers will think: this freeman understands something. It is clear that in both cases he will be listened to far from being the same.
I do recall, however, a successful application of the ad hominem argument on a common crime before a jury. This is the above-mentioned case of the police officer Bukovsky, who was accused of murdering a student Gudanis. The motive for the murder, recognized by the jury, was not quite ordinary - insulted pride. The student gave lessons to Bukovsky's children; the latter was aware of the young man's mental superiority and felt that his family saw this superiority. But Bukovsky possessed great physical strength, and, convinced that Gudanis was worse than him in this respect, he put up with his humiliation. One ill-fated evening, they decided to measure their strength, and the young man put the enemy hero "on the shoulder blades." Bukovsky could not forgive this, and some time later, without any new reason, he shot him at point-blank range. He claimed that he fired because Gudanis rushed at him and choked him by the throat. In a beautiful, restrained, but convincing and touching speech, the accuser, by the way, used the ad hominem argument to support his considerations about the motive for the crime. “Is it possible at all to kill on such an insignificant occasion?” he asked. “It is possible. At least it is possible for Bukovsky. resentment, so hated him, Bukovsky, that he only thought about how to kill him, threatened him with the words: “I will wash it with blood,” and even his family: “I will bring death to all of you.”
3. Beware of the so-called argumenta communia or ambigua, that is, double-edged arguments. Commune qui prius dicit, contrarium facit: whoever raises such considerations turns them against himself. "It is impossible not to believe the victim," says the accuser, "because it is impossible to invent such a monstrous accusation." "Impossible, I agree, the defender will object; - but if it is impossible to invent, how could it be done?" (Quintilian, V, 96.)
The speaker says: "I ask, to what extent is it likely that a person with criminal intent, twice on the eve of committing a crime, would come to a place where he could be recognized and convicted?" 120 . The answer suggests itself: he came to explore the area.
Yegor Yemelyanov said to his wife, whom he later drowned: "You should go to Zhdanovka." Spasovich said on this occasion: “Out of all my practice, I have learned the conviction that one cannot rely on threats, since they are extremely deceptive; one cannot believe in the seriousness of such a threat, for example, if a person says to another: I will kill you, tear you to pieces, burn you. On the contrary , if someone has a secret idea to kill a person, he will not threaten, but will keep his plan in the depths of his soul and only then will he carry it out when he is sure that no one will witness this, he certainly will not tell his victim about his intention." This is said with great art, but it is only half convincing. Everyone has a ready answer to this reasoning: what's on the mind, then on the tongue. And by the nature of the relationship between husband and wife, the words: you should go to Zhdanovka were not a random phrase; they expressed anger that had already turned into hatred.
The brothers Ivan and Peter Antonov were in a long-standing feud with Gustav Mardy and Wilhelm Sarr. At a rural holiday in a neighboring village, a quarrel broke out between them, and Mardi inflicted a severe wound on Ivan Antonov's head. Hours later, as Mardi and Sarr were returning home late at night, shots rang out around the corner and both were wounded. It was already in their own village. An alarm was raised, the headman with witnesses went to the Antonovs for a search. They found the whole family on their feet; Ivan Antonov, with his head bandaged, was sitting at the table; mother, sister and brother were there. The prosecutor pointed to this circumstance as evidence: the family was in anxious expectation. Indeed, at first glance, this wakefulness of a whole family among the village, immersed in sleep, this illuminated room in the darkness of a winter night seemed significant. The defender pointed out to the jury that Ivan Antonov did not sleep because he was suffering from a wound, and his family - because they looked after him and were afraid that the wound would not be fatal. It was the right idea. But if the defender had remembered that commune qui prius dicit, contrarium facit, he could have added: if the Antonov family had known that both sons had just attempted murder, then the peasants who had come would, of course, find darkness and complete darkness in the house. silence in anticipation of the search, the criminals and their relatives would probably not be able to sleep, but they would probably pretend to be asleep. This example, like the previous ones, indicates the need to discuss each fact from opposite points of view.
This example also shows that when explaining facts to yourself, you need to think to the end.
4. Another thing follows from the previous rule: know how to use double-edged considerations. This rule is especially important for the accuser. There are circumstances that cannot be explained only in one's own favor and at the same time cannot be passed over in silence, because they are too noticeable and interesting, alluring.
Many considerations for and against the defendant are clarified during the judicial investigation, mainly during the interrogation of witnesses. Sometimes the parties, through their own negligence, give out their views, sometimes conclusions are imposed by themselves from the facts that have come to light. If, therefore, the attention of the jury is drawn to some prominent argumentum ambiguum 122 and the accuser understands that they will stop at it, he should meet them halfway without waiting for the defense to do it, especially if, in the mouth of the latter, it provides an opportunity to produce impression.
“How?” exclaimed the lawyer in the Zolotov case, “a rich merchant, a millionaire, bribes murderers to get rid of his wife’s lover, and he promises for this either a hundred or a hundred and fifty rubles!” On the eve of the murder, Kireev received ten rubles from him, Ryabinin three or five rubles. Whoever wants to be truthful will say: "Yes, these five rubles are the salvation of Zolotov, this is direct evidence that he instructed Luchin to beat Fedorov away, and not kill him!" This is an effective consideration; it was indicated by the data of the judicial investigation, and the accuser could have foreseen and snatched it from his adversary. He himself could remark to the jury: “You might think that these one and a half hundred rubles are the salvation of Zolotov,” etc. But then he would say: “Before the murder, three and five rubles are good money for a drunkard and a hooligan, in any case - tangible bait; before the murder of Zolotov, he was still an important master: if he wants - he will give money, if he wants - he will drive him out; he is out of their power. After the murder, he is at their feet, his cash register is open for them: they will have to pay off hard labor no longer in rubles, but in thousands, perhaps , tens of thousands of rubles" 123 .
5. Don't prove the obvious. Reading or listening, says Kembel 124 , we are always looking for something new that we did not know before, or at least did not notice. The less we find of this, the sooner we lose the desire to follow a book or a speech. It would seem that this indication does not require proof; it seems superfluous to remind of him; but how many of us observe this rule?
We constantly hear the orator explaining to the jury with an impressive air that they must discuss the unfortunate triad about the event, about the commission of the crime by the defendant and about his guilt. This may be quite expedient if the essential material of the speech falls into these divisions; but the same is often explained when the fact is established or the defendant denies his guilt, and not his act. This is done partly out of superstitious admiration for the text of 754 st. of the Charter of Criminal Proceedings, partly due to inept imitation of models, and sometimes due to unaccustomed control of one's thoughts.
After a protocol certifying a dozen mortal wounds and an autopsy, the jury suddenly hears that "in any case, they must first discuss whether a crime event took place." This, of course, is immediately followed by the addition of the orator who realized himself that in this case such a question does not arise; but it is clear to the jury that he speaks without thinking. It is even worse, of course, when the undoubted or unnecessary draws the speaker into lengthy discussions.
Speaking about the new, and therefore about the interesting, one can talk a lot and in detail; if you have to repeat what is already known, you must be as brief as possible: the shorter, the better, if only the listeners understand what is needed; one word, a quick hint can successfully replace a page of the protocol or an entire testimony. Do you remember the layout of the rooms - this is a real trap; you appreciated this witness: he remembers everything, he only forgot his oath. If the witness really lied ineptly, there is no need to prove it: let your opponent defend him.
6. If you manage to find a strong evidence or a strong objection, do not start with them and do not state them without some preparation. The impression will be gained if you first give a few other considerations, although not so decisive, but still true and convincing, and in conclusion - a decisive argument, like coup de grace 125 .
7. Drop all mediocre and unreliable arguments. Only the strongest and most convincing evidence should be included in the speech; quality is important, not quantity. Cum colligo argumenta causarum, non tam ea numerare soleo, quam expendere, says Cicero. It is not to be feared that the speech will seem weak because it has little evidence; the practical rule can be stated in just the opposite sense: the less evidence, the better, so long as there is enough of it. Si causa est in argumentis, firmissima quaeque maxime tueor, sive plura sunt, sive aliquod unum. This is especially helpful for beginners. As soon as there are two or at least one decisive proof, then there is no need for others. A defender who has proved an alibi will not prove anything else: everything else, no matter how interesting, smart, beautiful, will be superfluous, and sometimes dangerous. Cicero says: “Many considerations suggest themselves; they seem suitable for speech; but some are so insignificant that it is not worth expressing them; others, although there is something good in them, are fraught with at the same time disadvantageous for the speaker, and useful is not so good that it is possible to admit the dangerous associated with it "(De orat., II, 76.) Quintilian also points out another consideration: "The memory of judges should not be burdened with numerous proofs; this tires them and causes distrust: the judge cannot rely on our arguments when we ourselves remind them of their lack of persuasiveness, piling them up more than necessary.
Do not count on the inattention of the enemy; remember that a dangerous enemy will speak after you - the judge. I call him an enemy because he is obliged to watch your every mistake vigilantly and does not have the right to forgive you a single one; I call him dangerous because in most cases he is impartial, and also because he has great confidence in the jury. So, make no mistake! And in order not to be mistaken, do not allow yourself unreliable arguments.
Keep in mind that every weak argument, attracting attention, undermines the credibility of all others: one cripple will spoil the whole system.
8. When proving and developing each individual position, do not lose sight of the main idea and other basic provisions; use every opportunity to remind one or the other. In each of Cicero's first four speeches against Verres, he mentions in advance the execution of Gavia, which constitutes the main charge in the fifth speech. Defending La Roncière, Che d'Est Ange repeats at every step: this whole accusation is a series of impossibilities; the whole misunderstanding is explained by the fact that Maria Morrel suffers from hysteria or some other incomprehensible illness.
9. Do not miss the opportunity to state a strong argument in the form of reasoning: one of two, that is, a dilemma. This is perhaps the best form of reasoning before the judges. Cicero says: comprehensio, quae, utrum concesseris, debet tollere, numquam reprehendetur: One should never object to a right dilemma.
Why are the presiding judge's considerations about the strength of evidence so convincing to jurors? Because he does not have the right to express his opinion and therefore always indicates two possible interpretations of each circumstance he analyzes: the most favorable for the prosecution and the most favorable for the defendant. "Which of these explanations will seem to you more appropriate to logic and your worldly experience," adds the chairman, "that you will accept as the basis of your judgment."
I'll give you a simple example.
The defendant, a thief by trade, weeps pitifully; this is clearly a mock cry. If the accuser said: this is feigned crying, he made a mistake. If he says: it is possible that she is crying sincerely, it is possible that she is pretending; decide for yourself; but neither one nor the other matters for deciding the question of guilt. The jury, left to their immediate impression, will say without hesitation: pretense.
Dilemmas are encountered at every turn in Demosthenes' speech on the crown 126 . He asks Aeschines: “How do you order to say: who are you an enemy: me or the state? Of course, me! However, when you had legitimate reasons to bring charges against me, if only I was guilty, you didn’t do it. But here, when I am protected on all sides, and laws, and prescription, and later decisions of the people's assembly, when there is no offense or evidence against me, and at the same time the state must to a certain extent be responsible for everything done with its knowledge, you are against me. no matter how it turns out that you are in fact an enemy of the state and are only pretending to be my enemy. Elsewhere: "If you alone foresaw the future, when there were national meetings, then at the same time you had to speak out before the state; and if you did not foresee the future, why am I more guilty than you?" Even lower: "I would ask Aeschines: when everyone rejoiced, when all over the city hymns of praise to the gods were sung, did he rejoice with others, participate in sacrifices or sit at home, sighing and indignant at the general happiness? If he was with everyone, isn't it strange that he now demands that you recognize as a public calamity the very thing that he then in the face of the gods called them the greatest blessing? ?"
10. Don't be afraid to agree with your opponent without waiting for an objection. This confirms your impartiality in the eyes of the judges; the conclusions drawn from his own premises are doubly interesting to listeners; one can also agree with his position, in order to then prove that it does not prove anything in the case or does not prove what the opponent wanted.
11. If the evidence is strong, you should cite them separately, developing each separately in detail; if they are weak, they should be collected in one handful. Quintilian says: “The first are strong in themselves and it is only necessary to show them as they are, without obscuring them by others; the second, the weakest, mutually reinforce each other. same circumstance. Suppose a man is accused of killing his relative in order to take advantage of his inheritance; the speaker will say: you counted on the inheritance, and the inheritance is rich, you were in need, you were pressed by creditors; being the heir in the will of the deceased, you offended him and knew that he is going to change the will. Taken separately, each of these considerations is of little importance; put together, they produce a certain impression. " This rule is self-explanatory, and examples can be found in any speech.
Cicero advises to hide from the listeners the number of their proofs, so that they seem to be more. This may be advantageous in political speeches, but it is not good in court. No matter how excited and enthusiastic the jurors are, there comes a moment in the deliberation room when they directly raise the question: what is there in the case against the defendant? To say to this: there is much is to say nothing; it is necessary for the accuser that they be able to remember all the arguments he has given, and he has no reason to fear their limited number, since he knows that they clarify the case. For the same reasons, it seems to me that it is more advantageous for the defender to clearly distinguish between his arguments than to conceal their number.
12. Try to reinforce one evidence with another as often as possible. If there is direct evidence in the case, leave it aside and prove the disputed fact with circumstantial evidence; the comparison of a logical conclusion with a direct confirmation of a fact is the strongest rhetorical device.
The peasant Ivan Malik was sued in the Kharkov District Court under Art. 1449. Regulations on penalties. The strongest piece of evidence against him was the testimony of a peasant woman, Anna Tkachenkova, who was passing through a grove at a distance of a few paces from the place where the murder had been committed just at that time; she claimed to have heard a loud argument and recognized the voices of father and son. Malik denied his guilt, but all the local peasants considered him the murderer of his father. The testimony of Anna Tkachenkova, transmitted by her extremely vividly, seemed to be the main pillar of the prosecution; but the defender could easily arouse distrust in the testimony of a witness dangerous to him, pointing out that it reflects the general mood of those around him. The prosecutor was able to prevent this. He carefully, without haste, with businesslike dispassion, analyzed other given cases and then said: “All the circumstances known to us indicate that the murder was committed by none other than Ivan Malik, during his quarrel with his father, in a grove. Along with this, we we know for certain that at the same time Anna Tkachenkova was passing near the same place; therefore, if she said that she did not hear the voices of those quarreling, we could not believe her, we would have to conclude that she is lying. Brilliant thought!
13. Do not try to explain what you yourself do not fully understand. Inexperienced people often make this mistake, as if they expect to find an explanation if they look for it out loud. The enemy is sincerely grateful to these speakers. It should not be forgotten that the attention of the listeners is always focused on the weakest part of the speaker's reasoning.
14. Don't try to prove more when you can do less. Don't over complicate your task.
A fugitive soldier and a prostitute were accused of murder with intent to rob; he pleaded guilty, but argued against strong evidence that the woman had no part in the crime. During the trial, the jury was very interested in the mutual relations of the defendants, trying to find out why the man defended his obvious accomplice; but this has remained unspecified. A fellow prosecutor said on this occasion: “There are no definite indications in the case of those motives for which Semenukhin denies Andreeva’s complicity in the murder; I also do not know them; but I will show you a general consideration that will save you from having to look for these motives: by exposing her he gains nothing by saving her - loses nothing."
15. Avoid contradictions in your arguments.
This rule is constantly violated by our defenders. They prove in detail and diligently the full inviolability of their client to the crime, and then declare that in case their arguments did not seem convincing to the jury, they consider themselves obliged to remind them of circumstances that could serve as a basis for absolution of guilt, or at least for indulgence. A few final words reduce all defense to ashes. This is an error in the scheme of speech itself; the same is repeated with separate arguments. Here is what one juror writes to me about it:
"The prosecution had a lot of help from defense lawyers."
“First, they pounce on the prosecutor and the investigation, proving that they have not established anything, absolutely nothing: neither the crime itself, nor its details ... The prosecutor built a house of cards. Touch it lightly, just a little, and it will fly apart. But the defender himself he did not touch the house of cards and how it crumbled, did not show, leaving the jurors to imagine such a touch and loosening, to reach it with their own mind. imbued with a feeling of pity for his "client", do not forget his youth or his straitened position and give possible indulgence. Thus, the end of defensive speeches almost always ran counter to their beginning, undermining any confidence in him. Naturally, with such an architecture of these speeches, the most pitiful jurors conclude that nothing can be said in favor of the defendant.
In the case of Dr. Korabevich, one of the defense lawyers talked a lot about the witness Semechkina; he fervently argued that her testimony had not been refuted in any way, on the contrary, it was confirmed by facts, he menacingly reproached the prosecutor for his inability to be impartial towards her ... And he ended like this: "But let's leave Semechkina; the prosecutor does not like her. I agree. She defamed. All right. Let's leave her. We have the best evidence." It is possible that there was such evidence, but Semechkina's testimony has already turned into an argument against the defendant.
Adelaide Bartlet was accused of poisoning her husband; with her, together with her, as an accomplice, Pastor Dyson was put on trial; it was determined that Bartlet's death was due to liquid chloroform poisoning. Chloroform was delivered to the wife by Dyson; the latter, under a false pretense, obtained insignificant doses of poison in three different places and, having poured chloroform from separate vials into one vial, secretly handed it over to the defendant. According to him, she assured him that she used chloroform as a sleeping pill for her sick husband. At the trial, the representative of the crown declared that he did not have sufficient grounds to support the charge against Dyson, and at the proposal of the chairman, the jury, as is customary in England, immediately found him not guilty; the judicial investigation continued only over Adelaide Bartlet.
“Gentlemen of the jury,” said her defense lawyer E. Clark, “I cannot help but dwell on one circumstance that probably caught your eye from the very beginning of the process: if false testimony is evidence of guilt, then it seems somewhat strange that Mr. Dyson has come here as a witness, and I beg you to bear in mind that not only do I not in the least condemn the action of the attorney of the Crown in relation to Mr. any accusation. If my venerable adversary believed that such a reason existed, he would never, of course, refuse his accusation. I do not say that there is such a reason, I submit, may I say? I believe in the justice of the decision, handed down by you on the proposal of the crown, I admit that Mr. Dyson was not a party to the crime if there was a crime.But when you are asked to discuss this case in relation to Mrs. Bartlet and propose to charge her with evidence, or allow others to charge her with serious evidence, for those false explanations that she allegedly gave and which are verified before you by the testimony of Mr. Dyson, as far as he remembers them, or says that he remembers, then Has the thought crossed your mind: what happiness is it for Mr. Dyson that he himself is not sitting in the dock?
Gentlemen of the jury! I ask you to remember that I do not raise the slightest doubt about his innocence. I would not want you to see in a single word of mine a hint - and there is no such hint in my words - of any doubts on this subject on my part. But suppose you were to judge him. What facts would be in front of you? On Sunday morning he walks along the road to church for a sermon, and as he goes, he throws out three or four flasks with the same movements that he repeated before you here. What if someone who knew him saw him on this road this morning, noticed how he threw these bottles, and thought: is it not strange that Reverend Mr. Dyson is throwing some bottles on the way to church in Sunday morning? What if this random passer-by, out of curiosity, picked up one of these vials and read on it the inscription: "Chloroform. Poison"? What if from the first steps of the inquest it turned out that Mr. Dyson was a regular visitor to the house where the death occurred? If it turned out that Mrs. Bartlet used to go out of the house with him, that she was at his apartment? If it turned out that his attitude towards the Bartletts, especially his wife, was exceptional? If it turned out from the testimony of the apothecary - the name of the apothecary is on the label of the bottle - that when Mr. Dyson demanded chloroform, he lied, saying that he needed chloroform to remove stains from his dress, stains made on his coat during his trip to Poole ? What would be Mr. Dyson's position?
This stern man, Richard Baxter (one of the witnesses), is in the habit of saying that when he sees a condemned man going to his execution, he always mentally says to himself: if it were not for the mercy of God, this is where they would lead Richard Baxter. I think that throughout his life, reading the records of the murder trials, Mr. Dyson will each time remember what terrible evidence his reckless, unforgivable behavior would have been against him if the charge brought against him had not been dropped in the very the beginning of the process."
"Gentlemen of the jury! I am not saying all this to inspire you - I have said and I repeat that I would not like to inspire you - the slightest doubt about the innocence of Mr. Dyson. I say this in order to show you that if he, an innocent person , it could be convicted here that he lied for the sole purpose of obtaining this poison, and this circumstance could be fatal for him in the eyes of the jury, then it would be cruel that the assurances of this same person that Mrs. Bartlet had lied to him, in order to induce him with this lie to get her chloroform, it would be strange if this testimony was given any serious significance in your eyes as evidence against her.
What is the first impression of these words? The speaker claims that he does not suspect Dyson of anything, and is trying with all his might to convince the jurors of his complicity in the murder. This is a vivid example of the fact that an unspoken thought is stronger than a thought expressed directly. It is clear that the facts did, in fact, cast strong suspicions on Dyson. Why does the defender repeat with such insistence that he is fully convinced of his innocence? Because he knows his business and observes another rule: not to allow contradictions in his arguments. His main position, the main evidence of the innocence of the defendant, who is on trial for murder, is that there was no murder, but a suicide. Therefore, he cannot allow the assumption of Dyson's guilt.
Refutatio 127
1. Share the generalized arguments of the opponent.
Let's take the example of Quintilian mentioned above: you were the heir of the deceased, you were in need, you were crowded by creditors; the deceased was irritated against you, you knew that he was going to change his will; dwelling in some detail on each of these circumstances, one can easily discover their insignificant significance. This rule applies in the objection to so-called evidence of conduct.
Sometimes the reverse technique is also appropriate - a generalization. Quintilian says: the accuser enumerated those motives that could push the defendant to the crime; Why disassemble all these considerations? Isn't it enough to say that if a person had a reason for a certain action, it does not follow from this that he committed it?
In a speech on the Maksimenko case, Plevako said: “I advise you to divide your attention equally between the defendants, considering the evidence of guilt separately for each ... A crime has been committed. Several persons are suspected. We are starting to look at all the defendants involved in one case, on the whole bench as one person. Crime makes us resent everyone. Evidence that depicts one defendant, we transfer to the rest. He did this, she did that, where does it appear that they did both together. You heard here testimonies by which one of the defendants was convicted of slandering the doctor Portugalov, and the other - in the reproach made to his neighbor Dmitrieva in the careless treatment of her sick husband with strong tea, which was in fact. evidence: it turns out that Maksimenko and Reznikov slandered the doctor, Maksimenko and Reznikov reproached Dmitrieva.
2. Objecting to the opponent, do not show special diligence. Too persistent an objection to this or that argument, not associated with its unconditional refutation, can give it new weight in the minds of the listeners, they develop their own consideration, unfavorable for the speaker: if he talks so much about it, it means that it really matters a lot. . On the other hand, when the speaker only casually objects to the opponent, as if ignoring his arguments, they often already seem unworthy of attention on this alone. I remember a case when the accuser had to object to two defense lawyers; the first of them spoke for two hours, the second for almost an hour. The prosecutor said to the jury: "I will not object to the first speech: it's not worth it; let's turn to the second." You can say this, of course, only if you are sure that you are right. If this is a rhetorical ploy, the enemy will slander such frivolity.
3. Do not leave without objection the strong arguments of the enemy. But, in objecting to them, one should by no means develop them or repeat the considerations with which he supported these arguments. This, unfortunately, is done too often and almost unconsciously. It is quite understandable: it is easy to repeat what has already been said, and by repeating we rest, at the same time clarifying to ourselves what we are going to object to; we think that the objection will benefit from this. And it turns out the opposite. The enemy's considerations were prepared and presented in the most appropriate form; by repeating, we shorten and simplify them a little, we make, so to speak, a synopsis of these considerations, we explain them to the jury, that is, we help the opponent in the most skillful way: the jury might not understand, not fully assimilate his arguments - we explain them; they could forget them - we remind them. Having thus done everything possible to reinforce the opponent's position, we then proceed impromptu to his refutation: the objection is not prepared and suffers from verbosity, is not thought out, and we do not have time to develop our arguments to the end, we seize on the first considerations that come to mind and miss from the mind more important, we present them in an obscure, unsuccessful form. The verbosity and vagueness of the objection after the concise and clear thought of the opponent only set off the persuasiveness of the latter.
4. Don't prove when you can deny. “If the worldly or legal presumption is on your side,” says Whatley, “and you have refuted the arguments put forward against you, your opponent is defeated. But if you leave this position and let your listeners forget the presumption favorable to you, you will deprive yourself of one of your best arguments. instead of a gloriously repulsed attack, there will be an unsuccessful sortie. Let us take the most obvious example. A man is brought to a criminal case as an accused without any evidence; he must be told that he does not plead guilty, and demand that the accuser prove the accusation; suppose, however, that instead, he sets out to prove that he is not guilty, and gives a number of considerations in support of this; in many cases it will turn out that it is impossible to prove innocence, that is, to establish a negative circumstance; instead of dispelling suspicions, he will increase them.
This rule has an exception. Karabchevsky's defense in the Skitsky case is based on it; Andreevsky's defense in the case of the murder of Sarah Becker presents a violation of it. Citing a number of considerations to prove that the murder could not have been committed by Mironovich, the defender then proves that Semyonova was the murderer. This exceptional construction of the defense is due to the exceptional circumstances of the case. Semenova herself claimed that the murder was committed by her, and since she really was at the loan office on the fateful night, her imaginary confession was confirmed by a number of facts. It would be a mistake not to take advantage of this circumstance, and in this case the defense scheme was quite consistent with Quintilian's indication that such a construction doubles the argument.
5. Answer words with facts.
The mother of the murdered Alexander Dovnar called Olga Pal a liar, a blackmailer and an adventurer. N. P. Karabchevsky analyzes these epithets. To the word “blackmailer,” he replies that during the four years of cohabitation with the defendant, Dovnar spent no more than one thousand rubles from his capital of fourteen thousand, and that after the murder in the hotel room, the victim had less, and Olga Palem had more money than he needed. pay the bill. The defender admits that the defendant was extremely deceitful, but proves that this is a harmless lie: simple boasting and a desire to appear above her ambiguous social position. Stopping at the word "adventurer", the speaker proves that this meant the desire of the defendant to marry Dovnar. He notices that during their long relationship, the murdered man passed her off as his wife to many, that he sent letters to her addressed to "Olga Vasilievna Dovnar", and concludes from this that her desire to become the lawful wife of a loved one is nothing reprehensible. A little later in the same speech, the speaker returns to Mrs. Schmidt's comments about Olga Palem, points out that in her letters the mother calls her son's concubine "dear Olga Vasilievna", signs "Alexandra Schmidt respecting you" and recalls that she entrusted her with the supervision of her youngest son, a thirteen-year-old boy: "Spoil my Viva, take care of the poor boy," wrote Mrs. Schmidt. "How much trust is needed, how much deepest, I will say more - boundless respect for a woman who, according to external conditions, is in such a delicate, in such an ambiguous position with respect to Mrs. Schmidt, as Mrs. Palem stood as the mistress of her eldest son, so that she, this very woman, without fear, without hesitation, to entrust the fate of the youngest infant son! What could be left of the unfavorable reviews of the witness after the speech of the defense counsel? They all served to put the defendant before the judges in a more favorable light: the speaker answered the words with facts.
"I did everything I could," Dr. Korabevich said at the trial. "Yes," said the accuser, "he did what he could; the body of the deceased girl and the receipts for the modest things she pledged to pay the doctor for criminal assistance speak of this."
6. Object to the opponent with his own arguments. This is called retorsio argumenti.
Murder prosecutor Al. Merca expressed the following consideration: if Antonova asked Nikiforov to get her morphine, then this could only be done with the aim of poisoning Merca, and not for suicide; if she wanted to kill herself, she would look for a stronger poison. The defense lawyer objected: the prosecutor does not believe that one can get poisoned with morphine; let the prosecutor open any newspaper: he will be convinced that not only morphine, but also acetic essence, women and girls are poisoned daily. The accuser could use this objection; he could say: from the words of the defender it is clear that it is very easy to get poison for suicide; Antonova, like any other girl, could get herself vinegar essence if she wanted to poison herself; she had no reasonable grounds to apply for this to a familiar paramedic; but it is very difficult to poison another with vinegar essence, even if you live in the same apartment as the person being poisoned: you cannot drink it unnoticed; poisoning with morphine under the same conditions is incomparably easier.
A brilliant example of retorsionis argumenti ex persona is indicated by Aristotle (Rhetor., II, 23): “Iphicrates asked Aristophon if he would be able to sell the fleet to the enemy for money; and when he answered in the negative, he said: you, Aristophon, would not dare to treason , and I, Iphicrates, would go to her!"
In the case of Priest Timofeev, who was accused of killing the husband of his mistress, Grigory Penkov was a witness. He gave terrible testimony against the defendant; he said that the priest many times persuaded him to kill Nikita Aksyonov, that in response to the refusal, Timofeev asked only to beat Nikita so that his wife had a reason to send for the priest, that is, for the defendant. Grigory Penkov went further: according to him, the priest expressed at the same time that, by communing Nikita, he would easily force him to drink poison from the holy cup.
Incredible display! However, the accuser had reason to believe him. But Grigory Penkov was a bitter drunkard and was imprisoned twice for theft. Is it possible, the defender asked, is it conceivable to treat this monstrous accusation not only with confidence, but at least with attention? And who is the witness? Who is the accuser? The last man in the whole village, a drunkard, a famous thief. It is enough to know him to throw his testimony out of the case as a senseless, impudent lie.
What could be said to this?
The prosecutor thanked the opponent for the vivid coverage of this unattractive figure: “The defense counsel is absolutely right when he says that Grigory Penkov is the last peasant in Yendovka; that is the only reason we can believe his terrible testimony; when a killer is needed, they are looking for him not in the monastery, but in a tavern or in prison. Only such a person as Grigory Penkov could know what he said to the court; if an honest and sober peasant said that the priest decided to bribe him to kill, we really could not believe him.
7. Do not argue against the undoubted evidence and correct thoughts of the enemy. This argument is useless, and sometimes immoral.
Antony says in Cicero: “My first rule is not to respond at all to the strong or delicate evidence and considerations of the enemy. This may seem ridiculous. what others in my place could do, and I confess that where the enemy is stronger than me, I retreat, but I retreat without throwing down a shield, not even hiding behind it; I maintain full order and a victorious appearance, so that my retreat seems the continuation of the battle; I stop in a fortified place so that it seems that I retreated not to escape, but in order to take a better position. Once a fact has been established, the task is not to object to it, but to find an explanation that would reconcile it with the speaker's conclusion or main points.
The defense of Dr. Korabevich in the trial of 1909 was a complete violation of this basic rule; True, the defenders were bound by the persistent denial of the defendant. He was condemned.
8. Don't refute the incredible; it is blows without a miss on the water and on the wind. The defendant was accused of two attempted murders: he shot two people point-blank, hit them both, but none of the three bullets penetrated the thickness of the skin of the wounded. The expert said that the revolver from which the shots were fired often does not penetrate clothes and serves more to frighten than to attack or defend. The prosecutor said a few words about the weak action of the revolver. The defender needed only in passing, with conviction in his tone, to mention that it was impossible to kill with a revolver. Instead, he began to cite the most diverse considerations in order to prove what was clear from the fact itself, and with each new consideration, the long-established idea - not a revolver, but a toy - gradually faded and melted. The boy-defendant made a pitiful impression; reviews of him were good; it seemed possible that the elders had given him a drink in order to push him against his former master. At the trial, he was probably depressed by the situation and, perhaps, regretted what he had done, but he did not know how to express it. This should have been explained to the jury, but the defender did not think about it.
9. Use the facts recognized by the enemy.
Aeschines invited the Athenians to judge Demosthenes on the circumstances of the case, and not on their preconceived opinion of him. Demosthenes answered this: Aeschines advises you to renounce the opinion of me that you brought here with you from home. See how fragile that which is unjust. After all, by this he confirms your confidence that my advice has always been for the benefit of the state, and his speeches have served the benefits of Philip. Why would he dissuade you if you didn't think that way? (De corona, 227, 228). This is not a retorsio argumenti: Demosthenes does not say that Aeschines' demand is devoid of logical or moral foundation; he takes advantage of the fact that the enemy has recognized a fact that is beneficial to him, and, having taken the position that has opened up, he immediately goes on the offensive.
10. If the defense has passed over in silence an irrefutable piece of evidence, the prosecutor should only remind the jury of it and point out that his opponent has not found an explanation that would eliminate it. If there were errors or distortions in the defense speech, the accuser's objection should be limited to a simple correction of them, without any guesses or accusations of bad faith. Our accusers do not know this, and the prosecutor's objection often turns into unnecessary, not always decent, and sometimes offensive personal attacks; this inevitably causes taunts from the opposite side.
As a general rule, it can be said that the accuser should not object; an objection is already a recognition of the strength of the defense or the weakness of the prosecution; on the contrary, a calm rejection of an objection is a confirmation of the certainty that one is right. If there were arguments in the defense that might have impressed the jury but did not shake the charges, the prosecutor must rebut them in a few words, leaving the jury to discuss them in more detail.
One should remember the general rule of any dispute: in order to expose the opponent’s incorrect reasoning, one must eliminate side considerations from them and, having separated the provisions that make up the links of the logical chain, arrange them in the form of one or more syllogisms; the error will then become apparent. This technique is quite appropriate in a judicial speech: it indicates to the jury that although the arguments of the opponent may seem very convincing, they still cannot be relied upon.
It can be said that almost every accusation of assault against women's honor ends with a clearly or vaguely expressed thought: if this defendant is acquitted, we will have to tremble for our wives and daughters. The logical construction of this thought is this: anyone who has committed a crime against women's honor must be punished, otherwise we will tremble for our wives and daughters; the defendant has committed such a crime; therefore, the defendant must be punished. The first premise is an indisputable proposition, but until the second is proved, the conclusion is not true. The defender must object: everyone who is not convicted of a crime must be acquitted. The question is whether the defendant has been convicted, the accuser has replaced the subject of the dispute: he proves something that no one doubts, but which does not matter to us until the main issue is resolved. This sophism is repeated at every step, not only in cases of this kind, but also in all other accusations.
Exaggeration
In any practical reasoning, not only what is said is important, but also how it is said. Rhetoric indicates some artificial methods of strengthening thoughts by the form of their presentation. Some of these techniques have already been indicated by me in the chapter on the colors of eloquence. I'll give you a few more tips.
As Aristotle remarked, one way to support or reject an accusation is by exaggeration. Instead of proving or denying the guilt of the defendant, the speaker expands on the evil of the crime; if the defendant himself or his counsel does it, it seems to the listeners that he could not have committed such a villainy, and vice versa, it seems that he committed it when the accuser is indignant. This technique, or if you prefer, this trick, is practiced daily in every criminal court. It is resorted to by the prosecutor when, as I mentioned, conscious of the weakness of the evidence, he warns the jury that they will tremble for their wives and children if they acquit the defendant accused under Art. 1523 or 1525 Penal Code. The defender does the same, developing the assumption of premeditated murder, when the defendant is brought to trial only under 2 hours 1455 of Art. Regulations: after that it is easier to talk about unintentional deprivation of life, or when instead of defamation, one talks about slander. Aristotle points out that there is no enthymeme here, that is, there is no logical conclusion: listeners make an incorrect conclusion about the presence or absence of a fact that in fact remains in doubt. The same technique is used by Che d "Est Ange in defense of la Roncière: he ironically calls the defendant an incredible villain, an unprecedented monster, a fiend.
The civil plaintiff in this case, Odilon Barrot, ended his speech as follows: “The whole of France, the whole world, perhaps not without anxiety, is waiting for your answer. Here the fate of not one single family, not two or three persons is decided, here you need to give a high moral lesson , it is necessary to protect the deeply shaken foundations of the general security of the family. This case, gentlemen, seems to be the embodiment of some modern striving for moral perversion. Every era had its fashions; we know the debauchees of the times of Louis XV, the regency, the empire; we know them, we know the characteristic the features of both.Some hid their vices under an external veneer, under a seductive appearance; others subordinated their passions to the desire for glory; then another time came, our time, and people appeared to whom it seems that everything that exists in nature is everything, that it is possible, it is wonderful that there is some kind of poetry in a crime... And, carried away by their frustrated imagination, these people began to look for new sensations at any cost. the natural consciousness is infected, and almost every day one hears of heinous crimes, striking in their enormity, unlike the former ones; these crimes find protection in their very perversity, because they surpass all our ideas, all human probabilities. If we have come to this, then state justice, which you have represented here, human justice, a reflection of heaven, must give society a formidable warning, must stop it in this general decay, give a guarantee of the security of the family hearth. This unfortunate family (I no longer have to talk about its high position, power, wealth; there is no family, the most modest, most unfortunate, for which the Morrel family would not be an object of pity), must not be allowed to leave this fence, where the sorrowful need to restore her honor has led her, she must not be allowed to leave here dishonored by a judicial sentence and that from now on it will be known to everyone and everyone that there is a crime for which there is no retribution and in which the appeal to justice leads only to the public shame of the victims ".
What is this unheard of, unprecedented atrocity? This is a crime that is committed daily and often punished with due retribution. It was not even a completed crime: la Roncière was accused only of an attempt on the girl's honor. And, however, even in reading, half a century later, in a foreign country, these words make an impression, subdue the imagination. One can judge how strong a prejudice they must have created against the defendant at the trial, although there is not a shadow of evidence against him in them. As we have seen, the defender cited the same consideration, supported the same exaggerated idea of the villainy of the crime with the jury, confirming that the defendant - not a monster and not a villain, could not have committed it.
The peasant Evdokimov chopped three piles of firewood in the public forest, sold them to the peasant Filippov and received a deposit. The watchman, the peasant Rodionov, caught the hacker and drove him away; Evdokimov obeyed this without irritation or scolding. Filippov, who had come for firewood, persuaded Rodionov to release one cart on the village: the peasants could allow the purchase. The three of them went to the village; along the way, at a crossroads, Rodionov took the horse by the bridle to direct it in the right direction. At this time, Evdokimov, without saying a word, rushed at him with an ax and hit him three times. Luckily, Rodionov survived, although he received three wounds and became deaf in one ear. He testified with amazing truthfulness and gentleness, he even declared that he was ready to forgive Evdokimov. The investigation found that Evdokimov was drunk. The witness testified that, both sober and drunk, he was a quiet man; there were no indications of insanity. The defender, however, tried to prove insanity and insisted on an acquittal. It was completely hopeless. And the defendant could be helped. What the defender had to say to the jury: if Evdokimov wanted to kill Rodionov and, despite drinking vodka, was fully aware of everything he was doing, then, of course, there is no rather severe punishment for this wild reprisal against a man who did his duty. If it is clear to you that this was the case, I find it difficult to find a suitable name for this atrocious act. I will even say that the punishment that threatens him under the law is too lenient for his crime. But after all, before you, four witnesses unanimously certify that this is a completely good-natured person; among these witnesses is the victim himself, who was saved only by a miracle and remained crippled for life. The act, indeed, is brutal, but the fact is instantaneous; and people who have known Yevdokimov for a long time, his fellow villagers, say: not a beast, but a meek person. The jury would see that of the two possible assumptions, the second is closer to the truth; as soon as this is so, they will naturally be inclined to follow the path favorable to the defendant.
Repetition
In a conversation, whoever repeats himself is considered an unbearable talker; what is said once, it is indecent to repeat. And in front of the jury, repetition is one of the most necessary tricks. Concise speech is a dangerous virtue for a speaker. Thoughts habitual, quite obvious slide in the brain of listeners without touching it. Less ordinary, complex ones do not have time to penetrate into it. Everyone knows perfectly well what daylight is, knows that without light there is no sight. However, admiring the beauties of God's world, we do not think about light. On the other hand, for an underdeveloped person a new thought is a difficulty. It is necessary to give him time to think about it, to assimilate it, it is necessary to keep his attention on it. Let's take Tyutchev's famous poem:
Two demons served him.
Two forces miraculously merged in him:
At its head - eagles soared,
In his chest - snakes coiled ...
Wide-winged inspirations
Eagle-eyed, daring flight
And in the very riot of audacity
Serpentine wisdom calculation!
In these eight lines the same thought is repeated four times; however, the repetition does not bother, but, as it were, draws us further each time into the depths of the poet's thought.
In order not to be tedious and boring in repetition, the speaker, as can be seen from this sample, must express repeated thoughts in various turns of speech. According to Whetley, what was originally expressed in direct terms can be repeated in the form of a metaphor, in antithesis, opposing concepts can be rearranged, in a conclusion, a conclusion and a premise can be repeated, a number of considerations expressed can be repeated in a new sequence, etc.
All this is extremely easy. Let us take the same case of Zolotov. According to the indictment, two hooligans committed murder as a result of bribing a rich man. The main idea is so obvious that it does not attract attention to itself, cannot interest the listener and becomes, like daylight, invisible. We have to force it on the jury. Let us apply to this case each of the four methods indicated by Whetley.
1. Metaphor. Zolotev bribed Kireev and Rapatsky to kill Fedorov. What is Rapatsky and Kireev? This is a stick and a knife, obedient things in the hands of Zolotov.
2. Antithesis. For Kireev and Rapatsky, Fedorov is the first person they meet: neither friend nor foe; for the defendant - a hated enemy; he is in gold, they are in mud; he can pay; they are happy to sell themselves; they are accustomed to blood, he is afraid of it.
3. Permutation of premises and output. Kireev had a stick, Rapatsky had a knife. To beat Fedorov, a stick was enough. Obviously, Zolotov demanded murder. - Zolotov demanded murder. It's not easy to kill with a stick. Kireev has a stick in his hands, Rapatsky has a knife.
4. Change in the order of presentation. Why did Kireev and Rapatsky become murderers? - Because Zolotov needed a murder. Why did clerk Luchin go to hire assassins? Because the owner ordered. Why was the only worker, Chirkov, taken from the old mother, why was Ryabinin torn away from his wife and children? - Because for the family well-being of Zolotov, their complicity in the murder was necessary.
The same in a different order. - What is Zolotov guilty of? It is better to ask if he is not to blame for everything and for everyone. Who, if not he, made the obedient Luchin, the ignorant Kireev and Rapatsky, the greedy Ryabinin and the frivolous Chirkov murderers?
It goes without saying that all this cannot be said as it is now written, one after the other. The thought is too simple. It should be scattered throughout the speech of the accuser, repeated as if by accident, in passing.
In the speech about the crown, Demosthenes speaks of Philip's entry into Greece and his occupation of Elatea. As soon as the news of this reached Athens, the alarm was raised. The next day, already at dawn, the whole city was at pnyx 128. The 129 pritans confirmed the formidable rumor, and, as was customary, the herald addressed those present, inviting those who wished to speak. Everyone was silent. The appeal was repeated several times, no one dared to speak, "although by law the voice of the herald is rightly recognized as the voice of the fatherland itself." Then Demosthenes addressed the people with an offer to help the Thebans 130 . The following passage in the speech is an amazing piece of rhetorical technique. “My proposal,” he said, “has led to the fact that the thunderstorm that hung over the state has dissipated like a cloud. The duty of every honest citizen obliged him to speak if he could give a better answer, and not postpone the accusation against the adviser for the future. Good The adviser and the chisel-maker differ from each other in that one speaks out without waiting for events, and assumes responsibility before the listeners, before chances, before the unknown, in a word, before everyone and everything; and the other is silent when he should speak, and when misfortune comes, slanders others. As I said, then there was a time for people loyal to their homeland, and for honest speeches. But now I will say differently: if now anyone can point out something better, or in general if it was possible to decide on something - or else, besides what I have suggested, I plead guilty. If any of you knows such a measure that could then benefit us, I plead guilty that I did not notice it. But if there is none, no which did not exist, and even today no one can point out any, how should a good adviser act? Should he not indicate the best he could, and, moreover, the only possible one? I did this when the herald asked who wants to speak, and not who wants to blame for the past or who wants to vouch for the future? And when you were sitting and silent, I got up and spoke. What? If you couldn't point it out then, point it out now. Tell me, what consideration, what useful measure have I overlooked? What alliance, what actions could be useful to the state and remained unnoticed by me?" Two repetitions are intertwined here: about the proposal of Demosthenes and the silence of Aeschines and about the unfair accusation on the part of the latter.
About unspoken
According to the properties of our mind, any unfinished logical position expressed by another person gives an impetus to our rational activity in the indicated direction; and although, according to the formal conditions of thought, any conclusion requires a comparison of two premises, this requirement does not constrain us. I write: some people have oratorical talent; this does not mean at all that there are people who are deprived of this gift, for this particular judgment does not logically exclude the possibility of a general position: all people have oratorical talent. But the mind is faster than the pen and bolder than logic, and my reader, having read a private judgment that does not allow logical refutation, already objects to it: "But most people do not have oratorical talent." The need to supplement someone else's thought or object to it is especially strong when the objection is prompted by knowledge, life experience and, even more so, pride. I write: if the reader does not understand the book, he himself is to blame for this. You will immediately say: maybe the writer is to blame. Say I: if the reader does not understand the book, the writer is to blame; you add: or reader. In both cases, I could only have in mind the immediate content of my words, but I could have in mind and lead you to the opposite conclusion. In the second case, your brain reflected a thought that had previously been born in mine. But in the first case, if it is not parthenogenesis, 131 it is not a repetition of someone else's thought either; this is your idea, not mine. This makes it seem more convincing to you. An experienced speaker can always hide his main idea from the audience and direct them to it without speaking out to the end. When the thought has already formed among them, when the triumph of completed creativity stirs, and with the birth of thought, a passion for their offspring was born, then they are no longer critics, full of distrust, but like-minded speakers, delighted with their own insight. A thought is as contagious as a feeling.
So, we must remember that half is greater than the whole. In the drama of Leonid Andreev "Tsar Hunger" in the scene of the trial of one of the hungry, Death is said: "She, getting more and more ferocious, tall, black, terrible ..." With the last word, the impression instantly weakens.
Alexandrov's speech on the case of Vera Zasulich contains no harsh expressions. The defender says: order, incident, punishment, action; but, looking at this speech, you feel that the jury, listening to these colorless words, mentally repeated: arbitrariness, outrage, torture, crime with impunity.
The orator must be like Falstaff: not only be clever himself, but also excite the mind in others. If you think about the atmosphere of a court speech, you will say that the ability to keep things short is the key to a solid impression on the listeners from the words of the accuser and the defender.
Don't talk when the facts speak for themselves.
The witness testifies that the defendant visited him on the eve of the hearing. The prosecutor asks: "Didn't he ask you to testify at the trial? Didn't he bring you to court on his horse? Didn't he treat you this morning in the tavern?" The witness confirms all this. The prosecutor sees in this an incitement to perjury, exposes the defendant and the witness in the strike, and is indignant; his words are impressive. But why should the defender ask the jury: if any of you were put on trial by misunderstanding and knew that one of the grounds for the accusation was the testimony of his neighbor, would he have the right to go to him and remind him how it was? If he knew that a neighbor could certify a circumstance refuting the accusation, would he have the right to ask him to do so? I don’t understand why the prosecutor sees this as a crime: Art. 557 already grants this to the defendant as a right. If the accuser were to limit himself to an impressive reminder of the fact, without expanding on its interpretation, the defense would have to present his considerations as evidence, and not as a refutation, which is far from being so convincing.
In 1856, the high-profile trial of Palmer, accused of poisoning Parson Cook, was heard in London. In the evening, a few hours before Cook's death, Palm±r brought him a medicine that contained strychnine. The patient refused to take the pills, but Palmer insisted that he take them. Then Palmer went to his room to sleep, leaving his friend Jones with the patient. Before the latter had time to throw off his outer dress, he heard Cook's terrible cry. The maid followed Palmer; he immediately left his room. Conveying these details to the jury in his opening speech, the Attorney General said: "After two minutes Palmer was at the bedside of the sick man and, although no one asked him, made the strange remark: 'Never in my life have I had to dress so soon.' From your answer gentlemen, we'll find out if you think he had to dress." The speaker did not finish his thought, but, of course, the jury could not but draw a natural conclusion. The poisoner did not undress: he was waiting.
The caution of the accuser was entirely appropriate in this persuasive but subtle indication; without weakening his strength in the least, he averted the blow of the enemy from himself in advance.
Express neither praise nor blame when you prove that a person deserves one or the other. Prove this and, without calling him a coward, a miser, an unmercenary, a friend of mankind, talk about something else, and then, after a while, call him the same word that you have already suggested to the jury.
Nothing so requires restraint in expressions as praise, especially if it concerns those present. Inept praise turns into flattery, ridicule, insult or vulgarity. It is impossible not to be surprised that our accusers and defenders dare to speak to the jury about their deep knowledge of life and thoughtful attitude to the case. The art lies in making it seem to the audience that the approval or admiration escaped from the speaker unintentionally and for him unexpectedly: what was said inadvertently was undoubtedly sincere.
To judge how casual, whimsical and at the same time how elegant such turns of speech are, one must recall the words of Boileau in a famous ode after the victorious campaign of Louis XIV in France.
The poet, it would seem, wants only to say that it is difficult to write a good poem; but at the same time, and as if unexpectedly for himself, he expresses another thought: the French have learned to win so much that it is the easiest thing for their generals to take enemy cities.
What about censure? I turn to you, reader, and say: you do not know your native language, you do not know how to think, you do not know how to speak. You will hardly be satisfied with this tirade. But I will say: we do not know the Russian language, we have lost common sense, we have forgotten how to speak - and you will not notice that these reproaches apply to you as much as to me.
An unfinished thought is always more interesting than a fully expressed one; in addition, it gives scope to the imagination of listeners; they complement the words of the speaker each in their own way. Ein Jeder sucht sich selbst was aus. If the hint is done skillfully, it is only to the benefit of the speaker. "If you want to pay tribute to Caesar," says Shakespeare, "say: Caesar." No one will think that this means a coward, a miser, an ambitious man; on the contrary, everyone will imagine those virtues and merits that he especially appreciates in people.
Not everything can be said, but thanks to the miraculous flexibility of the word, everything can be conveyed in speech; you just need to master the words, and not obey them. I'll give you a random example. “Having left the correctional shelter,” said the defender, “Nikiforov immediately went on theft; obviously, in this shelter he was not taught that it was impossible to steal.” By their obvious inconsistency, these words immediately arouse a mental objection from the listener and provoked a sharp remark from the chairman. Meanwhile, if the speaker had said what he wanted to say: obviously, in this shelter he was not weaned from stealing, his allusion would not be rude and accusing the educational institution of theft committed by a recidivist would not look absurd.
The old worker returned home drunk; the drunken wife greeted him with abuse and seized his hair; he hit her with a log that had turned up and inflicted a mortal wound on her. There was no indication of intentional murder in the file; nevertheless, he was not judged according to 1465 Art. or 2 hours 1484 Art., and 2 hours 1455 Art. Regulations. The defense lawyer said that the prosecutor's office asked for more than it should have, so that there was something to throw off. The reproach was fair, but inappropriate expressions: to request, to throw off - gave the chairman a legitimate reason to abruptly stop the defense counsel, and in the final speech to explain to the jury that no one bargains in court, that the court is not a shop, as the lawyer thinks, etc. It was necessary express your thoughts more carefully. What did it cost the orator, breaking down the obviously exaggerated accusation, to mention in passing the guarantees established for the defendant in the rite of trial? Instead of a well-deserved remark to the defender, the chairman, perhaps, would be forced to talk about the "accidental mistake" of the infallible.
Possible and probable
The judicial orator, unless he pours from empty to empty, is comparatively rarely able to say: probably; he has to speak more often: probably 132 . But you must speak in such a way that the court and the jury, having heard from you: probably, say from themselves: probably. This is a simple consideration; I will give below some examples of its successful application. But our young speakers, especially defenders, often speak as if, having said: probably, they want to impress listeners: hardly, or: in any case.
The defendant was charged with robbery. He asked a passerby he met if he had any cigarettes; he answered: no; the defendant put his hand in his pocket and pulled out a purse of money. And here are the cigarettes! - he exclaimed and rushed to run, taking the purse with him. He pleaded not guilty at trial and explained that he mistook the purse (purse, not wallet) for a cigarette case. The defense counsel told the jury:
“I believe that the defendant did not commit the crime of which he is accused. His explanation seems to me quite plausible ... Of course, strictly speaking, cigarettes are just as much property as money, and by exaggeration one can call this robbery; but such an interpretation of the case would not correspond to the intention of the defendant. He wanted to take one cigarette from the victim, and accidentally pulled out a cigarette case. But then he was frightened by the cry of the victim and rushed to run. This is how he explains his act, and I do not see anything impossible, nothing incredible in this " .
It really wasn't impossible; but the possible is far from being the probable, and it is not for nothing that people who know say that probabilities are better than possibilities.
Another case. The thief came to the apartment of a wealthy merchant and told the servant that her lady fell ill on the street and was taken to the hospital. The maid locked the apartment and ran to the store for the owner, but by some chance she immediately returned and found the front door broken, and in the apartment there was a thief who was standing at the sideboard with broken boxes; he had a silver sugar bowl in his hands and silver spoons in his pocket. He had an accomplice who managed to slip away when he heard the girl approach: she met him on the stairs. The defender argued that the theft was committed from hunger, only to buy a piece of bread for the stolen item. "The defendants," he said, "expected that the servants would return soon; whether they would continue to destroy the apartment is a big question."
Consider, reader, how plausible and probable this statement is.
So, the most important rule: having found an explanation for this or that doubtful circumstance, do not be content with the fact that it is possible, that an animal, a child or an idiot could do so; ask yourself if your invention is plausible. If you are attentive to the facts and reasonably exacting in your interpretations, you will find considerations in which the probability is almost a certainty.
Recalling what was said in the fifth chapter about worldly psychology, I will point out here one or two more examples of a plausible and convincing explanation of the facts.
In a defamation case involving a newspaper, defense counsel asked officials at the Ministry of Finance:
“Didn’t you understand that with the admission of such an imperfect method of evidence as private letters, abuses are inevitable? Surely elementary caution should not have raised these disturbing questions in you? Did Sergeyev and his gang really need two years of embezzlement of state money finances have become more prudent?"
“After all, the mother of the late midshipman Kraevsky, summoned to court by the accusers, innocently declared: when they told me that my son, who received only 190 rubles in salary, allegedly contributed more than three thousand rubles to the ship’s cash desk, I immediately said: yes, this cannot be ; the most he could accumulate was two hundred or three hundred rubles.
"And what is accessible to the understanding of an ingenuous woman, is it inaccessible to the wise experience and knowledge of the ranks of the financial department?"
An argument in the name of common sense here receives a double price in the eyes of the jury: it comes not from a dialectic lawyer experienced in a judicial contest, but from an ingenuous old woman witness. She said it couldn't be, and the jury, of course, agreed with her.
Two people walking in the park hear a woman's cry, go to the voice and see a man and a woman on the path. During this time, she does not cry. He hides, she tells them that she was subjected to gross abuse. It turns out that this woman got married five months ago. At the trial, of course, the whole dispute came down to one question: is she telling the truth or not. The accuser delivered his speech in a convinced tone, emphasized the heinous nature of the crime and pointed out, among other things, to worldly considerations: if there were a voluntary meeting, a woman would not scream to betray the place of a secret meeting; having met at the appointed place, the lovers would not have remained on the road where people walk, but would have gone deep into the park. But why didn't the speaker add that, realizing that she was guilty of adultery to her husband, this woman would not have gone to meet a stranger, but would hasten to hide, as her lover had disappeared? Why didn't he mention that the defendant was a rude, untidy, ugly guy, and that the woman's husband was a real handsome man? One glance at both men was enough to remove all doubt.
On an autumn night in St. Petersburg, a young peasant woman approached a policeman standing on Mikhailovsky Bridge near Tsaritsyn Meadow and asked how to get to Troitsky Bridge. The policeman called his comrade; both demanded that the girl go with them to the police station, and led her to the bridges of the steamship pier on the Moika. She didn't want to go any further; the police threatened to throw her into the water. There was no one to be seen around; she obeyed. One of the policemen remained at the entrance on the footbridge, the other went down to the pier to fetch the girl. What happened next, there is no need to tell. The unfortunate woman did not escape the outrage, and the policeman, who was on guard, approached his comrade twice to find out if his turn was coming soon. But the vile deed did not go unpunished: a passer-by saw him, said to an officer who came up by chance. They freed the girl; The officer wrote down the policemen's numbers. Put on trial, both claimed that the girl herself asked for their desire.
The defense brought forward two circumstances against the victim: firstly, she asked the policeman for directions to the Trinity Bridge, and the investigation established that she used this route every day to the Petersburg Side; secondly, she never once shouted; meanwhile, if she were subjected to a rude attack against her will, the instinct of a woman would wrest from her a cry for help.
The prosecutor invited the jury to imagine the situation of the event. Night, cold, wind, rain; in front of the girl is a deserted, dark Field of Mars, behind it is a black Neva. The girl walks alone, conscious of her loneliness and helplessness; she is terrified, she is afraid, and she has a need to feel the presence of a living being that can protect her from imaginary dangers. She sees a policeman - what better? - and goes to him with an unnecessary question to her only in order to hear a human voice and moderate her fear. What can be said about such an explanation? It cannot be refuted.
“The defender argues,” continued the prosecutor, “that the girl, by instinct, should have screamed. Of course, she would have screamed if she could have hoped for someone to help. But in front of her were only two villainous rapists and a deserted square. When she prayed to let her go, they answered her: be silent or we will push into the Moika. The police went too far to stop before the murder. She, perhaps, did not understand this, but she felt that one loud cry could destroy her; instinct, namely instinct, fear of death, inherent in every living being, restrained her cries and saved her, if not from violence, then from water. ”- And there is nothing to object to this.
About common sense
I remember, reader, we got carried away with you a little when we talked about the artistic treatment of the case. It seems like they even went to heaven. But sky-high flights are far from safe; the ancients knew this from the story of Icarus, but how can we, modern people, not know? In addition, we work on the ground; ordinary people judge in the name of the law. We will seek arguments on behalf of the law and common sense.
There was a session in the county town; two "assistants" from St. Petersburg, seconded for defense, vying with each other drowned the defendants. On the second or third day, the case was scheduled according to part 1 of 1483, Art. Regulations. During a village conversation, a young peasant stabbed one guy in the stomach; the blow was very strong, the wound is dangerous; Fortunately, the victim survived, but he appeared in court with an incurable hernia. Witnesses split into two halves: some claimed that Kalkin hit Fedorov for no reason, others that Fedorov and several other guys were chasing Kalkin with iron canes in their hands and that he hit Fedorov, who overtook him before the others, without looking back, defending himself from the attack . Fortunately for the defendant, the young lawyer, who was on the defense line, did not dare to take up the case and announced this to the court. There was some confusion; the judges did not want to postpone the case, but did not dare to proceed with the analysis without a defense counsel; at this time, Kalkin's father unexpectedly stepped out of the public and declared that there was a defender - the uncle of the defendant. Before the court appeared a stocky man of about forty, in a wide jacket, in high boots; he was given a seat against the jury. During the trial, he often caused a smile, more than once and annoyance from the judges; he did not ask witnesses, but argued with them and reproached them; after the accusation of the assistant prosecutor, he delivered his speech, addressing himself exclusively to the chairman and completely forgetting about the jury.
"Your honor," he began, "I am an uneducated and illiterate person; what I will say is the same as if no one said it; I don't know what to say. We rely on you ..." He spoke, agitated in a hurry, at a loss; However, this is what he had to say:
1. Culkin did not want to cause such a serious injury to Fedorov, "he hit him backhand, without looking back; it was an accident that the blow fell on the stomach."
2. Culkin didn't want it; "He himself regrets that such a misfortune happened; he immediately regretted it."
3. He had no enmity against Fedorov; he didn't want to hit him.
4. The blow "hit" Fedorov because he was closer than the others: "he tramples on his heels, he hit him."
5. He did not attack, but fled from those who attacked him.
6. "They are six, they are with iron sticks, he is alone; he saved his life and hit."
7. The misfortune is that he had this knife: “he should have been hit with a stick, an iron cane, as they beat him; he would have knocked Fedorov down and only; then there would not have been such a wound; yes, he had sticks with did not happen by itself."
8. "What kind of knife is this? A clerical, penknife; he carried it in his pocket for no reason; we all have such knives for need, for work."
9. He is not violent, he is meek; “They don’t like him because he didn’t drink vodka with them and didn’t give them vodka.”
10. "He is meek; he is not violent, if he had remained over Fedorov when he fell, but shouted:" Hey, come on, whoever wants to, "then one could say that he bullied them; but he ran away; .. .swinged back, hit and ran away."
The defender ended where he started: “I don’t know what to say, your honor, you know better; we hope for your justice ...”
The arguments of the speaker are given by me in the order in which they were expressed by him; there is no logical sequence between them. Let us analyze, however, the logical and legal significance of each of them separately. The defender said:
firstly, that the severity of the wound was the result of an accident, an accident at the place of application of the blow; legally indifferent, worldly convincing consideration;
secondly, that the defendant repents of his act; this is 2 p. 134 ct. Regulations on penalties;
thirdly, that the defendant could not have had a premeditated intention or intent to commit a crime - a direct objection to the legal composition of 1 h. 1483 Art. in the deed of Kalkin;
fourthly, that there was an accident in the personality of the victim - confirmation of the first worldly and third legal considerations;
fifthly, that the behavior of the defendant proved the absence of intent - a direct objection to Article 1, Part 1383;
sixth, that the defendant acted in a state of necessary defense - Art. 101 Penal Code;
seventh, that there was an accident in the weapon of the crime - "the stick did not happen", the knife turned up - confirmation of the first and third considerations;
eighthly, that the instrument of the crime - not a shoe knife, not a kitchen knife, but a penknife - does not correspond to the alleged intent of the defendant - a convincing everyday consideration against the legal composition of 1 part 1483 of Art. Regulations on penalties;
ninth, that the personal characteristics of the defendant - a characteristic, if you will, cast doubt on the corpus delicti and explain the unfavorable testimonies of some witnesses;
tenthly, that the behavior of the defendant confirms the characterization made by the defense counsel and proves the absence of premeditated intent or intent.
Here is protection, gentlemen defenders!
The case was dubious. The defendant, not only on the basis of the indictment, but also on the basis of the judicial investigation, risked prison departments, the loss of all special rights and expulsion for four years. The jury recognized the wound as light, recognized the state of temper and granted leniency. The judges sentenced Culkin to prison for two months. In the next break, I went up to the speaker and, congratulating him on the success of his defense, asked, among other things, about his occupation. He hurried:
"Yes, I ... So I ... I have two teams. I'm a cab driver."
Have you noticed, reader, a common technical error of professional defenders? Did you notice that the driver didn't make it? Every attorney at law and every assistant demand an acquittal, or at least say that the jury may not indict the defendant; the driver said: "We rely on you." Their speeches sound moral violence against the conscience of judges; in his words - respect for the judges and confidence in their justice. And when I remember his defensive speech, I want to say: "Friend, you said exactly as much as a sage would say" 133 .
This simple case deserves much attention from novice lawyers. There was not a single subtle or thoughtful consideration in the words of this cabman. And he himself did not seem to me an outstanding person. It was just a reasonable man who spoke common sense. Any of our young defenders, of course, could without difficulty, but with diligence and without fuss, find all his considerations. One might say that it was hard not to notice them. However, I have reason to think that if they had to protect young Culkin, they, or at least many of them, would not say what his uncle said, but would say ...
I think so from my observations. I invite the reader to judge by some passages.
Two boys were accused of burglary; both pleaded guilty, explaining that they were drunk; both defenders proved extreme and demanded an excuse. The defendant was arrested at the moment when he was trying to take money out of a mug for collecting donations in favor of the children in custody with the help of a special "fishing rod"; he also had a spare fishing rod of the same kind, and he admitted that he had already been convicted once for the same theft; his counsel demanded an acquittal, saying in passing: "It is quite clear to me that the defendant acted almost mechanically."
The defendant was charged under 2 hours 1655 Art. Regulations on penalties; I don't remember if it was the fourth or fifth theft; the defender said: “The prosecutor believes that the previous conviction aggravates the guilt of the defendant. Paradoxically, I say the opposite; if he had not been infected with the poison of crime, wounded by the bacillus of this social disease, he would prefer to starve rather than steal; therefore, he the previous conviction seems to me a circumstance not only mitigating, but also excluding his guilt.
A 17-year-old girl who ran around gardens and theaters stole fur items worth 1000 rubles, pawned them and bought herself dresses and gold trinkets; the items were found and returned to the owner. "If I," said the defender, "had a large diamond, Regent or Koinur, worth several million, it would have been stolen, sold for 50 kopecks, and then I would have received it intact, - could one speak of a theft worth several million? Of course not, and therefore, from a purely legal point of view, it should undoubtedly be recognized that this theft is worth less than 300 rubles! - this was said by a middle-aged, educated and intelligent lawyer.
The case was examined under 2 hours 1455 Art. Codes, that is, about murder; in front of the jury in a prisoner's pea coat stood a short oatmeal: broad shoulders, a heroic chest; his short stature made him seem even more robust. The defender spoke of exceeding the necessary defense, since the defendant was "a man of rather weak constitution."
The defendant was charged under 1489 and 2 hours 1490 Art. Codes; the crime was committed on December 31, 1908. According to the indictment, the jury knew that he pleaded guilty at the preliminary investigation. The defender, proving the impossibility of a guilty verdict, said: "Privatov's fault, in essence, is that he wanted to celebrate the new year and did not calculate his strength." Such was the wine of a man who, in drunken exasperation, beat another man to death, seemed to the defender.
The defender-cabman spoke only from common sense and, as we have seen, in this way guessed the reason of laws unknown to him. Remember, reader, that the defense is in the face of the law, and as far as the defendant is right, the law is not his enemy, but his ally. It's already one; call on another, no less strong - common sense, and you can do a lot. Here's an example for you.
The defendant was tried under 3 hours 1655 Art. Regulations on penalties; The indictment stated:
Semyonov is accused of "secretly stealing twenty one reactive coil, worth more than 300 rubles, that is, in a crime provided for in part 3 of article 1655 of the Code of Punishments. He pleaded guilty and explained that he committed the theft in the extreme.
From the speech of the defender it was clear that he was very attentive to the case and diligently prepared for it. What did he say to the jury?
1. The kidnapping could have been committed not for selfish purposes, but out of revenge.
2. Imprisonment corrupts people.
3. The difference in the punishability of theft in the amount of more than and less than 300 rubles is of a random nature, and according to the circumstances of the case, if the jury had not found it possible to acquit the defendant on the first and second grounds, they have reason to admit that the value of the stolen does not exceed 300 rubles.
Can this be called a strong argument? Meanwhile, the mere enumeration of seven streets in the indictment exposed an unforgivable mistake in bringing to trial.
A family of seven is one. So argued crown lawyers, from the magistrate to the members of the judicial chamber. If Ivanov had stolen 100 rubles from Petrov in Odessa in 1900, 100 rubles in Kyiv in 1901, 100 rubles in Moscow in 1902, and 100 rubles in St. Petersburg in 1903, then, following this logic, in 1904 it could be judged by 3 hours 1655 Art. for stealing 400 rubles in the Russian Empire. If the defender had pointed out this error to the jury, instead of three bad arguments, he would have presented them with one compelling reason.
The well-known Berlin lawyer Fritz Friedmann recounts such a case in his memoirs. Four well-known Berlin swindlers arrived at the fashionable resort a little earlier than the height of the season and, in order not to miss a day without practicing the noble art, "sat down on a meadow under the limes" for a cheerful pharaoh. Yawning lackeys and street boys watched the game with reverence. For that trouble - the gendarme. Protocol; Art. 284 of the German Criminal Code; crown court, an indictment and a two-year prison sentence.
The lawyer said to the judges: “The law punishes gambling in the form of trade. All of us lawyers know what the law means by the words: occupation in the form of trade. must look for his earnings in it, all or part of it. There is no doubt, and I do not think to dispute, that the defendants very often seek their earnings in the game, if only an outsider falls into their hands. I am quite sure that if the gendarme had not hurry up, such a "chick" would very soon be in their snares, and it would not be difficult to prove their guilt on the exact basis of the law. But while these gentlemen remained in their company, they played a game, as if some of the guests were sitting at court balls at the tables with cards in their hands and chatting nonsense among themselves, not playing a real game. After all, this is the only reason for the usual address of the Empress Augusta to her guests: “Would you like to win?” I ask for an excuse nii defendants for the absence of corpus delicti in their act.
Look for such arguments, reader; try to make such speeches. It's not eloquence, of course, but it's a real defense.
On the moral freedom of the speaker
Every artificial device contains a certain amount of lies: the use of additional colors in painting, the disproportion of parts in architecture and sculpture in relation to the location of a building or statue, rhetorical figures in literature, a demonstration in war, a sacrifice of a queen in chess - all this is to some extent a deception. . In eloquence, as in any practical art, technical methods often turn into real lies, even more often into flattery or hypocrisy. Here it is not easy to draw the line between the immoral and the permitted. Any speaker who deliberately exaggerates the strength of a well-known argument is acting dishonestly; it is beyond doubt; it is equally clear that he who tries by rhetorical turns to strengthen the persuasiveness of the argument he has cited, is doing what he must do. Here the difference is not difficult to point out: the first lies, the second tells the truth; but the first may be quite conscientious, but his arguments are still exaggerated; in relation to inexperienced accusers and defenders, this is a general rule, not an exception.
On the other hand, take captatio benevolentiae 135 before a hostile jury; there it will no longer be so easy to separate flattery from nobility. Let us imagine that a circumstance unexpectedly unfavorable for the speaker was suddenly revealed during the judicial investigation: an eyewitness was caught in a lie, the witness who provided an alibi retracted his testimony. The speaker is alarmed, for he is convinced that he is right. If he allows the jury to notice his excitement, he will artificially increase an unfavorable impression for him; so he will, of course, try to appear calm. They will say: this is self-control. - Yes, occasionally; but most of the time it's a sham.
Prof. L. Vladimirov in his article "The Reform of Criminal Defense" says: "It is possible and even should respect the defense as a great institution; but it should not be turned into a weapon against the truth. Isn't it strange to hear from such a proceduralist as Glaser ("Handbuch des Strafprozesses") that he fully approves of the method of the defense, which consists in hushing up any parties to the case in those cases when the defender finds it advantageous? Is it really true that the defense is the methods established by law and science approved for the best misleading of judges? It seems to us that that the defense aims to clarify everything that can be brought in favor of the defendant according to common sense, law and the peculiarities of the given case.But to believe that silence to obscure the truth is included in the methods of the defense, is to go too far in assuming the one-sidedness of the defense.
Defense, of course, is self-defence in court. But a judicial contest is not a battle, it is not a war; the means permitted here must be based on conscience, justice and law. Subterfuge can hardly be tolerated as a legitimate means of adversarial competition. If military tricks are tolerated, then legal tricks are not at all desirable.
This seems very convincing, and the question itself is of the utmost importance. Right or wrong Prof. Vladimirov? If the defender does not have the moral right to keep silent or hush up (it is not a matter of words) the circumstances and considerations incriminating the defendant, this means that he is obliged to remind the jury if the accuser has lost sight of them. For example: the prosecutor pointed out to you some minor discrepancies in the defendant's explanations at trial; but if you recall his explanations included in the indictment, you will be convinced of even more important contradictions, or the accuser has proved to you the moral impossibility of committing a crime by the person exposed by the defendant; I, according to the modern theory of criminal defense, will prove to you the physical impossibility of this; the prosecutor named two witnesses, certifying the extrajudicial consciousness of the defendant; I remind you that witness N confirmed this confession at the trial, etc.
If the defender speaks like this, he will obviously become the second prosecutor and the adversarial process will turn into a purely investigative one. It's impossible. But in that case, should not the same reasoning be applied to the accuser? Doesn't he also have the right to hush up the facts that justify the defendant, risking the condemnation of the innocent?
The answer suggests itself. The acquittal of the guilty is an insignificant evil compared with the condemnation of the innocent. But, leaving aside considerations of abstract morality, as well as considerations of expediency, let us look into the law. In Art. 739 of the Charter of Criminal Proceedings says: "The prosecutor in the accusatory speech should not present the case in a unilateral form, extracting from it only the circumstances incriminating the defendant, nor exaggerate the significance of the evidence and evidence in the case or the importance of the crime in question."
Article 744 says: "The defense counsel of the defendant explains in a defense speech all those circumstances and arguments that refute or weaken the charge brought against the defendant." Comparison of these two articles eliminates the dispute: the legislator approved a significant difference between the duties of the accuser and the defense counsel.
The court cannot demand truth from the parties, nor even frankness; they owe it only to truthfulness. Neither the accuser nor the defense can reveal the truth to the jury; they can only talk about probability. How, then, to limit oneself to them in an effort to present their guesses as the most probable?
The law, as you have seen, warns the prosecutor's office against being one-sided in debates. This requirement is very difficult to fulfill. A.F. Koni said long ago that the prosecutor should be a talking judge, but even in his speeches the judge more than once gives way to the accuser. This seems inevitable to me, since the prosecutor is convinced that only a guilty verdict can be just. As far as I can judge, this natural one-sidedness in the great majority of cases does not overstep the proper boundaries; but I cannot but draw the attention of our accusers, especially the beginning comrades of the public prosecutor, to one consideration.
In the provinces, many criminal cases are dealt with without defense; in the metropolitan provinces, defense lawyers are inexperienced assistants to sworn attorneys; this often proves even worse for the defendants. With their clumsy questions, they emphasize the testimony of witnesses for the prosecution, expose the lies of the defendants and their witnesses; ignorance and misunderstanding of the law irritate judges; by inconsistent arguments and reasoning they reinforce the evidence and by the frivolous demand for acquittal they embitter the jury. There is no exaggeration in these words, I vouch for my conscience. The chairman may be an enlightened judge, but he may not be completely impartial, or ignorant, or just a narrow-minded person. That's when you need to become a speaking judge, so as not to make an irreparable mistake "with consequences under Article 25 of the Code of Punishments," that is, hard labor, or at least with excessively severe punishment of the convict.
I said that one cannot demand unconditional frankness from the representative of the party in the process. What if we ever had a chance to hear a completely frank person on the prosecutor's platform?
“Gentlemen of the jury!” he would have said. “Imbued with an exalted faith in people, in human reason and conscience, the legislator granted us a free public court. Reality cruelly deceived his expectations. "can't. Daily experience says that it is profitable for the guilty, but dangerous for the innocent, to sue before a jury. This is not surprising. Observation of life has long convinced me that there are more stupid people in the world than smart people. The natural conclusion is that there are more fools among you." than smart people, and, taken together, you are below the mental level of an ordinary sane Russian layman. If I had any naive self-delusions about this, then your partly absurd, partly unscrupulous decisions on some matters of this session would open my eyes ".
There is no doubt that in many cases this kind of introduction would be the most truthful expression of the speaker's thoughts; but the effect of such treatment on the jury is also unquestionable.
Imagine the following speech: “Gentlemen, senators! The cassation reason indicated in my complaint constitutes a significant violation of the law. But I know that this circumstance is not of great importance to you. In the collections of cassation decisions, and especially in decisions not published, there are many overturned by the Senate for violations found not significant in your governing decisions, and there are dozens of sentences upheld despite violations repeatedly declared inadmissible.On the other hand, I also know that, although the law forbids you from entering the assessment of the case in essence, you often decide it precisely and exclusively on the basis of such an assessment. Therefore, I will not so much try to prove to you the existence of a cassation reason as to convince you of the injustice or inexpediency of the verdict.
Stop for a moment on these two examples, reader. I do not mean to say that everyone thinks like my imaginary speakers; but he who thinks so has the right not to say it, and would be foolish if he did. Hence the inevitable conclusion: in the art of eloquence, a certain share belongs to the art of silence. How far can the accuser and defender go in artificial rhetorical devices at trial? I repeat, here it is impossible to indicate a formal boundary: a doctor who lies to a dying person in order to receive money for useless treatment is a scoundrel; he who lies to ease his last moments acts like a friend of mankind. The judicial orator cannot lie, but behind this requirement, in each individual case, he himself is his own supreme judge in what he has a moral right in the interests of society or individuals and what is unacceptable for him:
That thine own self be true
And it must follow, as the night the day,
Thou canst not then be false to any man -
"Be true to yourself and you will always be right with others." The one who is inexorably strict with himself is true to himself.
117 Evidence of the truth always exists on her side (lat.).
118 Think, think some more, always think (fr.).
119 Lid. V, VII. Quintilian expresses these thoughts about civil litigation, but his instructions are quite applicable to criminal cases. (Author's note).
120 Speech by K. K. Arsenyev in defense of Danilov in the case of sacrilege in the Alexander Nevsky Lavra. "Judicial Bulletin", 1867. (Note by author).
121 Whoever takes the word first, he makes everyone want to contradict (lat.).
122 Obscure, ambiguous argument (lat.).
123 Zolotov was acquitted of the crime attributed to him, and in my remarks about this process there are no and no one should see any attempts to prove his guilt. These are only dialectical exercises about circumstances that were the subject of a public trial and are now the property of everyone, not one iota more. (Author's note).
124 Philosophy of Rhetoric. (Author's note).
125 Strike out of mercy; mortal blow that puts an end to torment (fr.).
126 Pronounced according to the so-called. case of Ctesiphon. It is one of the best works of oratory in Greece.
127 Refutation (lat.).
128 Pniksholm - in Ancient Athens, where people's meetings were held, at which the most important political issues were decided.
129 Duty members of the Athenian council.
130 This proposal was made by him in the form of an alternative: if we now choose to remember the old grievances received from the Thebans, we will do exactly what Philip dreams of; and if you obey me, I will dispel the danger that threatens the state. (Author's note).
131 (Zd.) A fruitless thought, devoid of any foundation (lat.).
132 Wed. Arist. Rhet., I, 2, II, 24. Aristotle's "Rhetoric" was translated into Russian by N. Platonova, but the book is not for sale; One cannot but wish for a second edition. (Author's note).
133 Odyssey, IV, 204. (Author's note).
134 Fritz Friedmann. Was ich eriebte. Berlin, 1908. B.I. (Author's note).
135 Currying, currying the favor of the judges (lat.).
This is the name of the book by P., Sergeich (P. S. Porokhovshchikov), published in 1910, whose task is to study the conditions of judicial eloquence and establish its methods. The author, an experienced judicial figure, faithful to the traditions of the best times of judicial reform, invested in his work not only an extensive acquaintance with examples of oratory, but also a rich result of his observations from the realm of the living word in the Russian court.
This book is timely in two respects. It contains a practical, based on numerous examples, edification on how to and - even more often - how not to speak in court, which, apparently, is especially important at a time when the swagger of methods of judging develops due to their expediency. It is timely also because, in essence, only now, when many years of experience in verbal judicial competition have been accumulated and entire collections of accusatory and defense speeches have appeared in print, has it become possible to thoroughly study the foundations of judicial eloquence and a comprehensive assessment of the practical methods of Russian judicial orators ...
PS Porokhovshchikov's book... a complete, detailed and rich in erudition and examples study on the essence and manifestations of the art of speech in court. The author alternates between a receptive and sensitive observer, a subtle psychologist, an enlightened lawyer, and at times a poet, thanks to which this serious book is replete with lively everyday scenes and lyrical passages woven into a strictly scientific canvas. Such, for example, is the story of the author, cited as proof of how much creativity can influence a judicial speech, even in a rather ordinary case. In those recent days, when there was still no talk of freedom of religion, the police, according to a janitor, came to the basement housing a sectarian chapel. The owner - a small craftsman - standing on the threshold, rudely shouted that he would not let anyone in and would cut down anyone who tried to enter, which caused the drawing up of an act on a crime under article 286 of the Penal Code and entailing a prison of up to four months or a fine not more than one hundred rubles. “The comrade of the prosecutor said: I support the indictment. The defender spoke, and in a few moments the whole hall turned into a tense, fascinated and alarmed rumor, ”the author writes. “He told us that the people who found themselves in this basement chapel did not gather there for ordinary worship, that it was a particularly solemn, the only day in the year when they were cleansed from their sins and found reconciliation with the Almighty, that on this day they renounced earthly, ascending to the divine; immersed in the holy of holies of their souls, they were inviolable for worldly power, were free even from its legal prohibitions. And all the time the defender kept us on the threshold of this low basement passage, where we had to go down two steps in the dark, where the janitors were pushing and where behind the door in the low wretched room the hearts of those praying were carried away to God ... I cannot convey this speech and impression , produced by her, but I will say that I did not experience a more elevated mood. The meeting took place in the evening, in a small dimly lit hall, but the arches parted above us, and from our chairs we looked directly into the starry sky, from time to eternity.
It is possible to disagree with some of the author’s statements and advice, but one cannot but recognize his book as of great importance for those who are subjectively or objectively interested in judicial eloquence as a subject of study or as an instrument of their activity, or, finally, an indicator of social development at a given time. Four questions usually arise before each of these persons: what is the art of speech in court? What qualities do you need to have to become a legal orator? what means and methods can the latter have at its disposal? what should be the content of the speech and its preparation? For all these questions, PS Porokhovshchikov gives a detailed answer, scattered over nine chapters of his extensive book (390 pages). Judicial speech, in his opinion, is a product of creativity, the same product as any literary or poetic work. The latter are always based on reality, refracted, so to speak, in the prism of creative imagination. But the same reality lies at the basis of judicial speech, reality for the most part rough, harsh. The difference between the work of a poet and a judicial orator lies mainly in the fact that they look at reality from different points of view and, accordingly, draw from it the appropriate colors, situations and impressions, processing them then into arguments of the prosecution or defense or into poetic images. “The young landowner,” says the author, “gave a slap in the face to a too bold admirer. For dry lawyers, this is Article 142 of the Charter on punishments - private prosecution - three months of arrest; thought quickly ran along the usual path of legal assessment and stopped. But Pushkin writes "Count Nulin", and half a century later we read this article 142 and cannot read enough of it. At night, a passer-by was robbed on the street, his fur coat was torn off ... Again, everything is simple, rude, meaningless: robbery with violence, the 1642 article of the Code - prison departments or hard labor for up to six years, and Gogol writes "The Overcoat" - a highly artistic and endlessly dramatic poem. There are no bad plots in literature; there are no unimportant cases in court and there are no cases in which
an educated and impressionable person could not find the basis for artistic speech. The starting point of art lies in the ability to catch the particular, to notice what distinguishes a known object from a number of similar ones. For an attentive and sensitive person, in every insignificant case there are several such characteristic features, they always have ready-made material for literary processing, and a judicial speech, as the author aptly puts it, "is literature on the fly." From this, in fact, follows the answer to the second question: what is needed in order to be a judicial orator? The presence of innate talent, as many people think, is by no means an indispensable condition without which one cannot become an orator. This is recognized in the old axiom that oratores fiunt. Talent makes the speaker's task easier, but it alone is not enough: you need mental
development and ability to master the word, which is achieved by thoughtful exercise. In addition, other personal properties of the speaker, of course, are reflected in his speech. Between them, of course, one of the main places is occupied by his temperament. The brilliant characterization of temperaments made by Kant, who distinguished between two temperaments of feelings (sanguine and melancholic) and two temperaments of activity (choleric and phlegmatic), found a physiological basis in Fulier's work "On Temperament and Character". It applies to all public speakers. The difference in the temperaments and moods of the speaker caused by them is sometimes found even against his will in the gesture, in the tone of voice, in the manner of speaking and the way he behaves in court. The typical mood inherent in this or that speaker's temperament is inevitably reflected in his attitude to the circumstances he speaks of, and in the form of his conclusions. It is difficult to imagine a melancholic and phlegmatic person acting on listeners with indifference, slow speech or hopeless sadness, “leading despondency to the front”, in the figurative expression of one of the orders of Emperor Paul. In the same way, the speaker's age cannot but affect his speech. A person whose “word” and words were imbued with youthful ardor, brightness and courage, becomes less impressionable over the years and gains more worldly experience. Life teaches him, on the one hand, more often than in his youth, to recall and understand the words of Ecclesiastes about “vanity of vanities”, and on the other hand, develops in him much greater self-confidence from the consciousness that he, an old tried and tested fighter, needs attention and trust turns out to be very often in advance and on credit, before he even begins his speech, which often consists in an unconscious repetition of himself. Judicial speech should contain a moral assessment of the crime, corresponding to the highest worldview of modern society. But the moral views of society are not as stable and conservative as written laws. They are influenced by the process of either slow and gradual, or sharp and unexpected reassessment of values. Therefore, the speaker has a choice between two roles: he can be an obedient and confident spokesman for the prevailing views, in solidarity with the majority of society; he may, on the contrary, act as a whistleblower of common misconceptions, prejudices, inertness or blindness of society and go against the current, defending his own new views and beliefs. In choosing one of these paths, outlined by the author, the age of the speaker and his characteristic moods must inevitably affect.
The content of a judicial speech plays no less a role than art in its construction. Everyone who has to speak publicly and especially in court has an idea: what to talk about, what to talk about and how to talk? The first question is answered by simple common sense and the logic of things, which determines the sequence and connection between individual actions. What to say - the same logic will indicate, on the basis of an accurate knowledge of the subject about which one has to narrate. Where it is necessary to talk about people, their passions, weaknesses and properties, worldly psychology and knowledge of the general properties of human nature will help to illuminate the inner side of the relations and motives under consideration. At the same time, it should be noted that the psychological element in speech should not at all be expressed in the so-called “depth of psychological analysis”, in unfolding the human soul and digging into it in order to find very often completely arbitrarily assumed movements and impulses in it. A lantern for illuminating these depths is appropriate only in the hands of a great artist-thinker, operating on his own created image. Well, if you imitate, then not Dostoevsky, who bores the soul like the soil for an artesian well, but Tolstoy's amazing powers of observation, which are mistakenly called psychological analysis. Finally, conscience must indicate to the judicial orator how moral it is to use one or another coverage of the circumstances of the case and the conclusion possible from their comparison. Here, the main role in the speaker's choice of one or another path belongs to his awareness of his duty to society and to the law, a consciousness guided by Gogol's testament: "You must deal with the word honestly." The foundation of all this, of course, must be an acquaintance with the case in all its smallest details, and it is difficult to determine in advance which of these details will acquire special power and significance for characterizing an event, persons, relationships ... To acquire this acquaintance, one does not need to stop at what labor, never considering it fruitless. “Te speeches,” the author rightly points out, “which seem to be said simply, in fact, are the fruit of a broad general education, long-standing frequent thoughts about the essence of things of long experience and - besides all this - hard work on each individual case.” Unfortunately, it is precisely here that our “laziness of the mind” most often affects, noted in hot words even by Kavelin.
In the question: how to speak, the real art of speech comes to the fore. The writer of these lines, while lecturing on criminal justice at the School of Law and the Alexander Lyceum, had to listen more than once to the request of his listeners to explain to them what is needed in order to speak well in court. He always gave the same answer: you need to know the subject you are talking about well, having studied it in all its details, you need to know your native language, with its richness, flexibility and originality, so as not to look for words and phrases to express your thoughts and Finally, you have to be sincere. A person usually lies in three ways: he does not say what he thinks, he thinks not what he feels, that is, he deceives not only others, but also himself, and, finally, he lies, so to speak, in a square, saying not what he thinks. and thinking is not what he feels. All these types of lies can find a place for themselves in judicial speech, internally distorting it and weakening its strength, because insincerity is felt already when it has not yet become, so to speak, tangible ... Two chapters are devoted to the language of speech in the work of P. S. Porokhovshchikov , with many true thoughts and examples. The Russian language, both in print and in oral speech, has been subjected to some kind of fierce damage in recent years ... The author cites a number of words and phrases that have recently entered the practice of jurisprudence without any reason or justification and completely destroying the purity of the syllable. Such, for example, are the words - fictitious (imaginary), inspire (inspire), dominant, simulation, trauma, precarity, base, vary, tax (instead of punish), corrective, defect, questionnaire, detail, dossier (production), adequately, cancel , ingredient, stage, etc. Of course, there are foreign expressions that cannot be accurately translated into Russian. These are those cited by the author - absenteeism, loyalty, compromise; but we use terms whose meaning is easily conveyed in Russian. In my judicial practice, I tried to replace the word alibi, which is completely incomprehensible to the vast majority of the jury, with the word otherness, which is quite consistent with the concept of alibi, -u the title of the chairman's final speech to the jury - summary - with the name "guiding parting words", characterizing the purpose and content of the chairman's speech. This replacement of the French word resume, it seemed to me, was met with sympathy by many. In general, the habit of some of our speakers to avoid the existing Russian expression and replace it with a foreign or new one reveals little thoughtfulness in how one should speak. A new word in an already established language is excusable only when it is unconditionally necessary, understandable and sonorous. Otherwise, we run the risk of returning to the disgusting distortions of the Russian official language after Peter the Great and almost before the reign of Catherine, committed, moreover, using the then expressions, "without any reason for beating our humor."
But it is not only the purity of the syllable that suffers in our judicial speeches: the accuracy of the syllable also suffers, replaced by an excess of layers to express a sometimes simple and simple concept, and these words are strung one after another for the sake of heightening effect. In one not too long accusatory speech about the extremely dubious torture of an adopted girl by a woman who took her in, the judges and jury heard, according to the author, such passages: “The testimony of the witnesses in the main, in the essential, basically coincides; the picture unfolded before you in all its strength, in its entirety, in its entirety depicts such treatment of a child, which cannot but be recognized as bullying in all forms, in all senses, in all respects; what you have heard is terrible, it is tragic, it transcends all limits, it shudders all the nerves, it raises the hair on end "... The author, in turn, refers to the shortcomings of the judicial speech "weedy thoughts", that is, commonplaces , hackneyed (and not always correctly cited) aphorisms, arguments about trifles, and in general any “gag” that does not go to the point, as they called it in the magazine world, filling in empty spaces in a book or newspaper. He points, then, to the need for propriety. “According to the sense of elegance inherent in each of us,” writes oi, “we are susceptible to the difference between decent and inappropriate in other people's words; it would be good if we developed this receptivity towards ourselves.” But this, to the great regret of those who remember the best morals in the judiciary, is not. Modern young orators, according to the author, without
embarrassment speaks of witnesses: a kept woman, lu
a bovnitsa, a prostitute, forgetting that the utterance of these words constitutes a criminal offense and that the freedom of judicial speech is not the right to insult a woman with impunity. In the past this was not the case. “You know,” says the accuser in the example cited by the author, “that between Jansen and Akar there was a great friendship, an old friendship, turning into family relations, which allow the opportunity to dine and breakfast with her, manage her cash desk, keep accounts, almost live with her ". The idea is understandable, the author adds, and without insulting rude words.
In the chapter on the “colors of eloquence,” as the author somewhat ironically calls the grace and brilliance of speech, this “cursive in print, red ink in manuscript” - we find a detailed analysis of rhetorical turns characteristic of judicial speech, and especially images, metaphors, comparisons , contrasts, etc. Particular attention is paid to images, and quite thoroughly. A person rarely thinks in logical terms. Any living thinking, directed not at abstract objects defined with mathematical precision, such as time or space, certainly draws for itself images from which thought and imagination originate or to which they aspire. They imperiously invade individual links of a whole chain of thoughts, influence the conclusion, suggest determination and often cause in the direction of the will that phenomenon, which in the compass is called deviation. Life constantly shows how the sequence of the mind is destroyed or modified under the influence of the voice of the heart. But what is this voice, if not the result of fear, tenderness, indignation or delight in front of this or that image? That is why the art of speech at the court contains the ability to think, and consequently, to speak in images. Analyzing all other rhetorical turns and pointing out how our speakers neglect some of them, the author extremely skillfully quotes the introduction to the speech of the famous Chaix-d * Est-Ange in the high-profile case of La Roncière, who was accused of attempting to chastity of a girl, noting in a separate column, next to the text, the gradual use by the defender of a wide variety of turns of speech.
Although, as a matter of fact, the conduct of a judicial investigation is not directly related to the art of speech in court, a whole, very interesting chapter is devoted to it in the book, obviously, in the consideration that during the judicial investigation and especially during cross-examination, a judicial contest continues, in which speeches enter only as final chords. In this competition, of course, the interrogation of witnesses plays the main role, because the debate of the parties on individual procedural actions is relatively rare and has a strictly businesslike character, enclosed in a narrow and formal framework. Our literature presents very few works devoted to the interrogation of witnesses. The psychology of witness testimony and the conditions that affect the reliability, nature, volume and form of these testimony are especially poorly developed. I tried to fill this gap as much as I could in the introduction to the fourth edition of my Judicial Speeches in the article: “Witnesses at the Trial” and warmly welcome those 36 pages that 11. S. Porohovshchikov devotes to the interrogation of witnesses, giving a number of burning everyday pictures, thoughtlessness of interrogators and supplying judicial figures with experienced advice, set out with vivid evidence.
The volume of this article does not allow touching on many parts of the book, but it is impossible not to point out one original place in it. “There are eternal, insoluble questions about the right to judge and punish in general,” the author says, “and there are those that are created by the collision of the existing order of legal proceedings with the mental and moral requirements of a given society in a certain era. Here are a few questions of both kinds, which remain unresolved to this day, and which have to be reckoned with: what is the purpose of punishment? Can a defendant be acquitted when the term of his pre-trial detention is longer than the term of the punishment that threatens him? can the defendant be acquitted on the grounds that if I were in his place I would have acted the same way as he? can the impeccable past of the defendant serve as a basis for acquittal? can he be blamed for immoral remedies? Can a defendant be acquitted because his family is in danger of poverty if he is convicted? Is it possible to condemn a person who has killed another in order to get rid of physical or moral torture on the part of the murdered person? Can a minor accomplice be acquitted on the grounds that the main culprit was left unpunished due to the negligence or dishonesty of officials? is sworn testimony more credible than testimony without an oath? what significance can cruel miscarriages of justice of past times and other peoples have for this process? do jurors have a moral right to reckon with the first verdict on cassated case, if it turned out during the trial that the verdict was incorrectly overturned, for example, under the pretext of a violation repeatedly recognized by the Senate as insignificant? l and moral understanding, the judicial orator must thoroughly think over these questions, not only as a lawyer, but also as an enlightened son of his time. An indication of these questions in their entirety is found in our legal literature for the first time with such completeness and frankness. Undoubtedly, they often arise before the practicing lawyer, and it is necessary that the inevitability of one or another of their decisions does not take him by surprise. This decision cannot be based on the impassive letter of the law; it must find a place for both considerations of criminal policy and the commanding voice of judicial ethics, this non scripta, sed nata lex. By posing these questions, the author complicates the speaker's task, but at the same time ennobles it.
Turning to some special advice given by the author to lawyers and prosecutors, we must first of all note that, speaking of the art of speech in court, he vainly confines himself to the speeches of the parties. The chairman's guiding parting words to the jury also belong to the field of judicial speech, and its skillful presentation is always of great, and sometimes decisive, importance. The very requirements of the law - to restore the true circumstances of the case and not to express a personal opinion about the guilt or innocence of the defendant - should force the chairman to pay special attention and thoughtfulness not only to the content, but also to the form of his parting words. Restoration of the perspective of the case, broken or distorted in the speeches of the parties, requires not only increased attention and sharpened memory, but also a deliberate construction of speech and special accuracy and clarity of expression. The need to give the jury general grounds for judging the strength of the evidence, without expressing one's own view of the responsibility of the accused, imposes an obligation to be extremely careful with words in the performance of this slippery task. Here, Pushkin's words are quite appropriate: "Blessed is he who firmly rules with his word - and keeps his thought on his leash ...". The leading parting words should be free from pathos; many of the rhetorical devices that are appropriate in the speeches of the parties cannot find a place in it; but if images replace in it the dry and stingy word of the law, then it corresponds to its purpose. In addition, it should not be forgotten that the vast majority of defendants during district sessions do not have defense counsel or sometimes receive such, appointed by the court from novice candidates for judicial positions, about whom the accused can say: “God deliver us from friends!”. In these cases, the chairman is morally obliged to state in concise but lively terms what can be said in defense of the defendant, who very often asks in response to the accuser's speech to "judge in a divine way" or helplessly shrug his hands. Despite the fact that 1914 marked the fiftieth anniversary of the publication of judicial statutes, the fundamentals and techniques of guiding parting words are little developed theoretically and are not developed at all practically, and in the press, until recently, only three of my parting words could be found in the book “Judicial Speeches” , yes, in the old "Judicial Gazette" Deyer's speech on the well-known case of Nechaev and the first chairmanship experiments of the first days of the judicial reform, this "Freishitz, played out with the fingers of timid students." Therefore, one cannot help but regret that the author of The Art of Speech in Court did not subject his subtle critical assessment of the chairman's speech and his development of the latter's "fundamentals".
It is impossible not to fully join the series of practical advice to the prosecutor and the defense counsel, with which the author concludes his book, dressing them in a witty form with worldly content drawn from many years of judicial experience, but it is difficult to agree with his unconditional demand for a written presentation of the forthcoming speech in court.
“Know, reader,” he says, “that without writing a few fathoms or arshins of paper, you will not say a strong speech on a complex matter. Unless you're a genius, take this as an axiom and prepare with pen in hand. You are not going to have a public lecture, not a poetic improvisation, as in Egyptian Nights. You are going into battle." Therefore, according to the author, in any case, "the speech should be written in the form of a detailed logical reasoning; each separate part of it should be presented as an independent whole, and these parts are then connected to each other into a common invulnerable whole. Advice to write speeches, although not always in such a categorical form, some classical Western authors also give it (Cicero, Bonnier, Ortloff, etc.), gives it, as we have seen, Mittermeier, and among our practical orators - Andreevsky. There is a big difference between improvisation, which our author opposes to written speech, and oral speech, which is freely formed in the meeting itself, there is a big difference. Everything is unknown, unexpected and not conditioned by anything - here there is ready-made material and time for its reflection and distribution. The fatal question: "Mr. Prosecutor! Your word", - catching, according to the author, by surprise a person who has not previously sat through his speech in a letter, is not addressing a random visitor, awakened from a slumber, but to a man who, for the most part, wrote the indictment and watched the preliminary investigation and, in any case, sat through the entire judicial investigation. There is nothing unexpected for him In this matter, there is no “grabbing hastily for everything that comes to hand”, there are no grounds, especially since in the case of “respectable excuses of the defendant”, that is, in the case of the destruction of evidence and evidence that gave rise to brought to trial, the prosecutor has the right and even the moral obligation to refuse to support the prosecution. A pre-composed speech must inevitably embarrass the speaker, hypnotize him. Every speaker who writes his speeches has a jealously loving attitude towards his work and the fear of losing from it what is sometimes achieved by assiduous work. Hence the reluctance to pass in silence any part or place of one's prepared speech; I will say more - hence the desire to disregard those circumstances that became clear during the judicial investigation, which are difficult or impossible to fit into a speech or squeeze into its places, which seemed so beautiful or convincing in reading before the meeting. This connection of the speaker with his previous work should especially increase if you follow the advice of the author, with which he - moreover, not jokingly - concludes his book: “Before you speak in court, say your speech in a completely finished form before the “amusing” jury. There is no need for them to be necessarily twelve; three is enough, even two, the choice is not important; sit before you your mother, brother-school student, nanny or cook, orderly or janitor. In my long judicial practice, I have heard speakers who acted according to this recipe. The heated dish they served to the court was unsuccessful and tasteless; their pathos sounded artificial, and the feigned animation made it tangible to feel that before the audience, as a hardened lesson, what the French call "une improvisation soigneusement rguerageu" is being pronounced. Judicial speech is not a public lecture, says the author. Yes, it's not a lecture, but that's exactly why it shouldn't be written ahead. Facts, conclusions, examples, pictures, etc., given in a lecture cannot change in the audience itself: this is completely ready-made, established material, and on the eve, and just before the start, and after the lecture, it remains unchanged, and therefore here one can speak if more about the written lecture, then at least about its detailed synopsis. Yes, and at a lecture, not only the form, but also some images, epithets, comparisons are unexpectedly created by the lecturer under the influence of his mood, caused by the composition of the audience, or unexpected news, or, finally, the presence of certain people ... Is it necessary to talk about those changes which the initial accusation and the very essence of the case undergo during the judicial investigation? Interrogated witnesses often forget what they showed to the investigator, or completely change their testimony under the influence of the oath taken; their testimonies, emerging from the crucible of cross-examination, sometimes lasting several hours, seem completely different, acquire sharp shades that were not mentioned before; new witnesses appearing in court for the first time give a new color to the "circumstances of the case" and provide data that completely change the picture of the event, its situation, its consequences. In addition, the prosecutor, who was not present at the preliminary investigation, sometimes sees the defendant for the first time - and before him appears not the same person whom he pictured to himself, preparing for the prosecution or, on the advice of the author, writing an accusatory speech. The author himself says about the lively cooperation of the speaker and other participants in the process that not a single big business can do without the so-called incidents d'audience. The attitude of witnesses, experts, the defendant and the speaker's opponent to them or to previous events can be completely unexpected. .. Expertise can make big changes. Newly summoned knowledgeable persons can sometimes give such an explanation of the forensic side of the case, bring in such unexpected illumination of the meaning of certain phenomena or signs that all the piles will be put forward from under the speech prepared in advance, on which the building was holding. Every old judicial figure, of course, has repeatedly witnessed such a "change of scenery." If there really were a need for a preliminary written presentation of a speech, then objections would usually be colorless and short. Meanwhile, in judicial practice there are objections that are stronger, brighter, more valid than the first speeches. I knew judicial orators who were distinguished by the special strength of their objections and even asked the chairmen not to interrupt the session before such, so that they could immediately, “persisting, agitated and hastily,” answer opponents ... Therefore, I, who never wrote my speeches in advance, allow myself as an old judicial figure, to tell young figures, contrary to the author of The Art of Speech in Court: do not write speeches in advance, do not waste time, do not rely on the help of these lines composed in the silence of the office, slowly falling on paper, but study the material carefully, memorize it, think about it - and then follow the advice of Faust: "Speak with conviction, words and influence on listeners will come by themselves!".
To this I would add one more thing: read the book of P. S. Porokhovshchikov with attention: from its instructive pages written in a beautiful, lively and bright style, it breathes with real love for the case, turning it into a vocation, and not a craft ...
mt I need to prepare for the lecture: collect shsht i S interesting and important, related to the topic - ^0LJ me - directly or indirectly, draw up W I I concise, if possible, a complete plan 1 I 9L and PR ° ® TY P0 to him several times .
I " ^r Even better, write a speech and carefully
tsb ^ u ^ ^ having carefully finished it stylistically, read it aloud.
A written presentation of the upcoming speech is very useful for novice lecturers and those who do not have a pronounced ability for free and calm speech.
The plan must be mobile, that is, such that it can be reduced without violating the whole.
You should dress simply and decently. There should not be anything pretentious and flashy in the suit (sharp color, unusual style); a heavy, sloppy suit makes an unpleasant impression. It is important to remember this, since the mental effect on the audience begins before the speech, from the moment the lecturer appears before the public.,
Before each speech, one should mentally run through the speech plan, so to speak, each time bring it into
9. A. F. Koni
order existing material. When the lecturer realizes that he remembers well everything that is to be said, this gives him vigor, inspires confidence and calms him down.
The lecturer, especially the beginner, is greatly hindered by the fear of the audience, the fear of the realization that the speech will be unsuccessful, that painful state of mind that is well known to every public speaker: a lawyer, a singer, a musician, etc. All this, with practice, disappears in to a large extent, although some excitement, of course, always happens.
In order to be less anxious before speeches, one must be more self-confident, and this can only be achieved with better preparation for the lecture. The better you master the subject, the less you worry. The amount of excitement is inversely proportional to the labor expended on the preparation, or rather, the result of the preparation. The preliminary work, invisible to anyone, is the basis of the lecturer's confidence. This confidence will immediately increase during the speech itself, as soon as the lecturer feels (and he will certainly feel soon) that he speaks freely, sensibly, impresses and knows everything that remains to be said.
When Newton was asked how he discovered the law of gravity, the great mathematician replied: "I thought about it a lot." Another great man, Alva Tomaso Edison, said that his inventions were 98 percent sweat and 2 percent inspiration.
Many people know what the “pearl of creation” cost our Gogol: up to eight alterations of the initial editions! So, the lecturer's fear is reduced by preparation and practice, that is, by the same labor.
In reducing the fear of the audience, those happy moments of success play a big role, which, no, no, and fall to the lot of a not entirely bad or only decent lecturer.
It is advisable to start a speech with an appeal: “Goods
cabbage soup. You can build the initial phrase and so that these words are in the middle: "Today, comrades, you have to ...".
You should speak loudly, clearly, distinctly (diction), non-monotonously, as expressively and simply as possible. There should be confidence, conviction, strength in the tone. There should not be a teacher's tone, disgusting and unnecessary - for adults, boring - for young people.
The tone of speech can rise (what is crescendo in music), but you should generally change the tone - raise and lower it in connection with the meaning and meaning of the given phrase and even individual words (logical stress). Goya emphasizes. Sometimes it’s good to “fall” in tone: from a high one, suddenly go to a low one, after a pause. This "sometimes" is determined by the place in the speech. You are talking about Tolstoy, and the first phrase about his "departure" can be said in a low tone; this immediately emphasizes the greatness of the moment in the life of our great writer. Precise instructions cannot be given in this regard: they can be prompted by an intuition, thoughtfulness. You should remember the meaning of pauses between separate parts of oral speech (the same as a paragraph or a red line in writing). The speech should not be delivered in one fell swoop; it must be speech, a living word.
Gestures enliven speech, but they should be used with care. An expressive gesture (a raised hand, a clenched fist, a sharp and quick movement, etc.) must correspond to the meaning and meaning of a given phrase or a single word (here the gesture acts in conjunction with the tone, doubling the power of speech). Too frequent, monotonous, fussy, abrupt movements of the hands are unpleasant, boring, annoying and annoying.
He should not walk around the stage, make monotonous movements, for example, swaying from foot to foot, squat, etc.
It is useful to peer into individual groups of listeners (especially in small classrooms, rooms): listeners look at the lecturer, and they are pleased if the lecturer looks at them. This attracts attention and wins the location of the lecturer. The lecturer should not have one point to which his gaze is attracted during the whole speech.
The lecturer must be adequately illuminated/ the person speaks along with the C language.
The lecturer requires great endurance and the ability to control himself under all adverse circumstances. No distractions should act on him (binoculars, newspapers, turning, rustling, crying of a child, barking of a dog that accidentally climbed in). The lecturer must do his job. These little things (they can be counted a dozen), among which there are those that act on self-esteem, with practice, will not mentally influence, the lecturer gets used to them.
In the case of a sharp noise - call for silence and continue the speech. If before the start of the speech it can be assumed that it will be noisy, if it is clear that the audience is nervous, start the speech itself with a call for silence, and it is useful to include one or two phrases of an enticing nature in this call.
Avoid template speech, it is especially dangerous at the beginning and at the end. The public notices everything, and the template can be the reason for some unexpected trick, for example, someone in the ranks will finish the phrase started by the lecturer in a stereotyped way and outstrip the lecturer. A template is an absolutely unacceptable evil in any kind of creativity.
Do not use the same expressions in speech, even the same words at close range. Flaubert and Maupassant advised not to put the same words in the text closer than 200 lines.
The form of speech is simple, understandable. A foreign element is acceptable, but it should be explained immediately, and the explanation should be short, minted; it should not delay the movement of speech for a long time. It is better not to allow hard-to-understand ironies, allegories, etc.; all this is not assimilated by undeveloped minds, it is wasted, a simple visual comparison, a parallel, an expressive epithet works well.
Lyrics are acceptable, but they should be few (the more valuable they are). Lyrics should be sincere, whatever it is. Everything or almost everything should be in the form and content of the speech - that is why preliminary preparation and development of a plan are so important and necessary.
An element of the touching, pitiful may be in speech, but in order for the “touching” to really “touch” the heart, one must talk about the touching calmly, coldly, dispassionately: neither the voice should tremble, nor a tear be heard, there should be no external influx of touchingness, from This results in a contrasting background: black lines merge with a black background, and stand out sharply on white. So it is with touching. For example, the scenes of the execution of Ostap should be read in protocol, dryly, coldly, in a steely strong voice and change it where it is impossible not to change it: a description of the suffering of the Cossacks and Ostap and his exclamation: “Father! Do you hear all this?!"
For a lecture to be successful, it is necessary: 1) to win the attention of the audience and 2) to keep their attention until the end of the speech.
Attracting (winning) the attention of listeners - the first crucial moment in a lecturer's speech - is the most difficult task. The attention of everyone in general (a child, an ignoramus, an intellectual, and even a scientist) is excited by simple interesting (interesting) and close to what everyone must have experienced or experienced. This means that the lecturer's first words should be extremely simple, accessible, understandable and interesting (they should distract, catch attention). There can be a lot of these hooking "hooks" - introductions: something from life,
something unexpected, some kind of paradox, some kind of oddity, as if not going to a gesture or to a deed (but in fact connected with the whole speech), an unexpected and intelligent question, etc. Most people busy with idle chatter or light thoughts. You can always turn their attention in your direction.
In order to discover (find) such a beginning, one must think, weigh the whole speech and figure out which of the above-mentioned beginnings, which are homogeneous with ncmi, not marked here, can be suitable and be in close connection with at least some aspect of speech. This work is entirely creative.
Example one. We must talk about Caligula, the Roman emperor. If the lecturer starts with the fact that Caligula was the son of Germanicus and Agripina, that he was born in such and such a year, inherited such and such character traits, lived and was brought up in such and such a place, then ... attention is unlikely to be caught. Why? Because there is nothing unusual and, perhaps, interesting in this information in order to gain attention. It will still be necessary to give this material, but it is not necessary to give it right away, but only when the attention of those present has already been attracted, when it will turn from scattered to concentrated. You can stand on prepared soil, and not on the first random one that comes across. This is the law. The first words have this purpose: to bring the audience into a state of attention. The first words should be completely simple (it is useful to avoid complex sentences at this point, simple sentences are good). You can start like this: “As a child, I loved to read fairy tales. And of all the tales, one especially strongly influenced me (pause): the tale of the cannibal, the devourer of children. As a small child, I felt extremely sorry for those guys whom the ogre-eating giant cut like pigs with a huge knife and threw into a large smoking cauldron. I was afraid of this cannibal, and when it got dark in zhomnat, I thought about how not to get caught for dinner with him. When I grew up and learned something, then ... ”followed by transitional catches (very important) to Caligula and then a speech on the merits. They will say: where does the cannibal? And despite the fact that the cannibal - in a fairy tale and Caligula - in life, are brothers in cruelty.
Of course, if the lecturer does not put forward his cruelty in his speech about Caligula, then the cannibal is not needed either. Then it will be necessary to take another to gain attention. The originality of the beginning intrigues, attracts, disposes to everything else; on the contrary, the ordinary beginning is accepted sluggishly, it is reluctantly (and therefore incompletely) reacted to, it determines in advance the value of everything that follows.
Second example. We must talk about Lomonosov. In the introduction, one can draw (briefly - certainly briefly, but strongly!) a picture of the flight of a boy-child to Moscow, and then: many years have passed. In Petersburg, in one of the old houses of the times of Peter the Great, in an office lined with physical instruments and littered with books, drawings and manuscripts, a man in a white wig and court uniform was standing at the table explaining to Catherine II new experiments on electricity. This man was the same boy who had once fled from his home on a dark night.
Here the simple beginning, as if not related to Lomonosov, and the sharp contrast of the two paintings, act on the attention.
Example three. We must talk about the law of universal gravitation. Taking into account everything that has preceded about the introduction, about the first words of the lecturer to win attention, and this lecture could be started like this. “On Christmas night in 1642, in England, there was great confusion in the family of a middle-class farmer. A boy was born so small that he could be bathed in a beer mug. Then a few words about the life and teachings of this boy, about his student years, about being elected a member of the royal society, and, finally, the name of Newton himself. After that, you can proceed to the presentation of the essence of the law of universal gravitation. The role of this "beer mug" is only to attract attention. Where can you find out about her? We must read, prepare, take Newton's biography...
How to attract attention and through this act on the will is excellently explained in A.P. Chekhov's story "At Home" (the technique is the same as here).
The beginning must be in accordance with the audience, knowledge of it is necessary. For example, the beginning of a lecture about Lomonosov would not have suited an intelligent audience, since from the very first words everyone would have guessed that it was about Lomonosov, and the originality of the beginning would have turned into pathetic artificiality.
The second task of the lecturer is to keep the attention of the audience. Once attention is aroused by the introduction, it is necessary to keep it, otherwise they will stop listening, movement will begin, and, finally, that “mixture” of painful signs of indifference to the words of the lecturer will appear, which kills any desire to continue the speech.
You can keep and even increase your attention:
1) brevity,
2J in a quick movement of speech,
3) brief refreshing digressions.
The brevity of speech consists not only in the brevity of the time during which it is pronounced. A lecture can go on for an hour and yet be short; at 10 minutes it can seem long, tiring.
Brevity - the absence of everything superfluous, not related to the content, everything that is watery and clogged, which is usually the sin of speech. It is necessary to avoid the superfluous: it discourages and leads to a loss of attention of the listeners. In order to make a face out of marble, it is necessary to remove from it everything that is not a face (opinion of A.P. Chekhov). So the lecturer under no circumstances should allow in his speech anything that dilutes speech, which makes it “long”, which violates the second requirement: the rapid movement of speech forward. Speech should be economical, elastic. It is impossible to argue like this: nothing, I will leave this word, this sentence, this image, although they are not particularly important. Everything is unimportant - throw it away, then you get brevity, about which the same Chekhov said: "Brevity is the sister of talent." Need
make it so that there are relatively few words, thoughts, feelings, emotions - a lot. Then the speech is short, then it is likened to delicious wine, of which a glass is enough to feel pleasantly intoxicated, then it will fulfill Maykov's testament: words are crowded, but thoughts are spacious.
The rapid movement of speech obliges the lecturer not to delay attention in approaches to new parts (new questions - moments) of speech. For example, one has to hear: “As for Chekhov’s humor, extremely peculiar humor, the following can be said about him ...”. Instead of these worthless words, one should say: "Chekhov's humor is distinguished by amazing softness and humanity." Then - consolidation with examples. Brief refreshing digressions are needed in a long (say, hourly) speech, when there is every reason to assume that the attention of the listeners could tire. Tired attention - inattention. Digressions should be light, even of a comical nature, and at the same time stand in connection with the content of the given place of speech. In a small speech, one can do without digressions: attention can be preserved by the good qualities of the speech itself.
The end of the speech should round it off, that is, connect it with the beginning. For example, at the end of a speech about Lomonosov (see above), you can say: “So, we saw Lomonosov as a fisherman boy and an academician. Where is the reason for such a wonderful fate? The reason is only in the thirst for knowledge, in heroic labor and multiplied talent, allotted to him by nature. All this exalted the poor son of a fisherman and glorified his name.
Of course, such an end is not necessary for all speeches. The end is the resolution of all speech (as in music the last chord is the resolution of the previous one; whoever has a musical flair can always say, without knowing the play, judging only by the chord that the play is over); the end should be such that the listeners feel (not only in the tone of the lecturer, this is mandatory) that there is nothing more to say.
For the success of a speech, the flow of thought of the lecturer is important. If the thought jumps from subject to subject, is thrown, if the main thing is constantly interrupted, then such speech is almost impossible to listen to. It is necessary to build a plan in such a way that the second thought follows from the first, the third from the second, etc., or so that there is a natural transition from one to the other.
Example: Caligula's character traits are cruelty, debauchery, conceit, extravagance. If we place a trait of extravagance in a story about cruelty (the thought jumped!), and in a story about debauchery - a trait of self-conceit (the thought jumped again!), then we get the absence of a logical flow of thought. This is completely unacceptable. The remedy for such a defect is a deliberate plan and its exact execution. The natural course of thought delivers, in addition to mental, deep aesthetic pleasure. Pushkin also spoke about this.
The flow of thought is like a blue thermometer, and the retreats are dashes indicating an integer number of degrees, but not in such a uniform sequence.
The best speeches are simple, clear, understandable, and full of deep meaning. With a lack of one’s own “deep thought”, it is permissible to use the wisdom of the wise, observing the measure in this, too, so as not to lose one’s face among Lermontov’s, fat, Dickens ...
Instead of a preface
"The Art of Speech in Court" - this is the name of the book by P. Sergeich (P. S. Porokhovshchikov), published in 1910, whose task is to study the conditions of judicial eloquence and establish its methods. The author, an experienced judicial figure, faithful to the traditions of the best times of the Judicial Reform, invested in his work not only an extensive acquaintance with examples of oratory, but also a rich result of his observations from the realm of the living word in the Russian court. This book is timely in two respects. It contains a practical, based on numerous examples, edification on how to and - even more often - how not to speak in court, which, apparently, is especially important at a time when the swagger of methods of judging develops at the expense of their expediency. It is timely also because, in essence, only now, when many years of experience in verbal judicial competition have been accumulated and entire collections of accusatory and defensive speeches have appeared in print, has it become possible to thoroughly study the foundations of judicial eloquence and a comprehensive assessment of the practical methods of Russian judicial orators ...
P. S. Porokhovshchikov's book is a complete, detailed and rich in erudition and examples study on the essence and manifestations of the art of speech in court. The author alternates between a receptive and sensitive observer, a subtle psychologist, an enlightened lawyer, and at times a poet, thanks to which this serious book is replete with lively everyday scenes and lyrical passages woven into a strictly scientific canvas. Such, for example, is the story of the author, cited as proof of how much creativity can influence a judicial speech, even in a rather ordinary case. In those recent days, when there was still no talk of freedom of religion, the police, according to the janitor, came to the basement housing, which housed a sectarian chapel. The owner, a small craftsman, standing on the threshold, rudely shouted that he would not let anyone in and would kill anyone who tried to enter, which caused the drawing up of an act on a crime under article 286 of the Penal Code and entailing a prison of up to four months or a fine not more than one hundred rubles. "The comrade of the prosecutor said: I support the indictment. The defense lawyer spoke, and in a few moments the whole hall turned into a tense, fascinated and alarmed rumor," the author writes. "He told us that the people who found themselves in this basement chapel did not gather there for ordinary worship, that it was a particularly solemn, the only day in the year when they were cleansed of their sins and found reconciliation with the Almighty, that on this day they renounced from the earthly, ascending to the divine, immersed in the holy of holies of their souls, they were inviolable to worldly power, were free even from its lawful prohibitions. steps, where the janitors pushed and where, behind the door in a low, wretched room, the hearts of those praying were carried away to God... I cannot describe this speech and the impression it produced, but I will say that I did not experience a more exalted mood. , but the arches parted above us, and from our chairs we looked directly into the starry sky, from time to eternity ... "
One can disagree with some of the author's statements and advice, but one cannot help but recognize his book as of great importance for those who are subjectively or objectively interested in judicial eloquence as a subject of study, or as an instrument of their activity, or, finally, as an indicator of social development at a given time. time. Four questions usually arise before each of these persons: what is the art of speech in court? What qualities do you need to have to become a legal orator? what means and methods can the latter have at its disposal? what should be the content of the speech and its preparation? P.S. Porokhovshchikov gives a detailed answer to all these questions, scattered over nine chapters of his extensive book. Judicial speech, in his opinion, is a product of creativity, the same product as any literary or poetic work. The latter are always based on reality, refracted, so to speak, in the prism of creative imagination. But the same reality lies at the basis of judicial speech, reality for the most part rough, harsh. The difference between the work of a poet and a judicial orator lies mainly in the fact that they look at reality from different points of view and, accordingly, draw from it the appropriate colors, situations and impressions, processing them then into arguments for the prosecution or defense or into poetic images. “A young landowner,” says the author, “slapped a too bold admirer. For dry lawyers, this is Article 142 of the Charter on Punishments, private prosecution, three months of arrest; the thought quickly ran along the usual path of legal assessment and stopped. A. Pushkin writes "Count Nulin", and half a century later we read this article 142 and cannot read enough of it. At night, a passerby was robbed in the street, his coat was torn off him ... Again, everything is simple, rude, meaningless: robbery with violence, article 1642 of the Code - prisoner departments or penal servitude up to six years, and Gogol writes "The Overcoat" - a highly artistic and endlessly dramatic poem. There are no bad plots in literature; there are no unimportant cases in court and there are none in which an educated and impressionable person could not find the basis for artistic speech. " The starting point of art lies in the ability to catch the particular, to notice what distinguishes a known object from a number of similar ones. For an attentive and sensitive person, in every insignificant case there are several such characteristic features, they always have ready-made material for literary processing, and judicial speech, as the author aptly puts it, "is literature on the fly." Hence, in fact, the answer to the second question follows: what is needed in order to be a judicial orator? The presence of innate talent, as many people think, is by no means an indispensable condition without which one cannot become an orator. This is recognized in the old axiom that oratores fiunt *(1) . Talent facilitates the task of the orator, but it alone is not enough: mental development and the ability to master the word are needed, which is achieved by thoughtful exercise. In addition, other personal properties of the speaker, of course, are reflected in his speech. Between them, of course, one of the main places is occupied by his temperament. The brilliant characterization of temperaments made by Kant, who distinguished between two temperaments of feelings (sanguine and melancholic) and two temperaments of activity (choleric and phlegmatic), found a physiological basis in Fulier's work On Temperament and Character. It applies to all public speakers. The difference in the temperaments and moods of the speaker caused by them is sometimes found even against his will in the gesture, in the tone of voice, in the manner of speaking and the way he behaves in court. The typical mood inherent in this or that speaker's temperament is inevitably reflected in his attitude to the circumstances he speaks of, and in the form of his conclusions. It is difficult to imagine a melancholic and a phlegmatic person acting on the listeners with indifference, slow speech or hopeless sadness, "leading despondency to the front," in the figurative expression of one of the orders of Emperor Paul. In the same way, the speaker's age cannot but affect his speech. A person whose “word” and words were imbued with youthful ardor, brightness and courage, becomes less impressionable over the years and acquires more worldly experience. Life teaches him, on the one hand, more often than in his youth, to recall and understand the words of Ecclesiastes about "vanity of vanities", and on the other hand, develops in him much greater self-confidence from the consciousness that he, an old tried and tested fighter, needs attention and trust turns out to be very often in advance and on credit, before he even begins his speech, which often consists in an unconscious repetition of himself. Judicial speech should contain a moral assessment of the crime, corresponding to the highest worldview of modern society. But the moral views of society are not as stable and conservative as written laws. They are affected by the process of slow and gradual, then abrupt and unexpected reassessment of values. Therefore, the speaker has a choice between two roles: he can be an obedient and confident spokesman for the prevailing views, in solidarity with the majority of society; he may, on the contrary, act as a whistleblower of common misconceptions, prejudices, inertness or blindness of society and go against the current, defending his own new views and beliefs. In choosing one of these paths, outlined by the author, the age of the orator and his characteristic moods must inevitably affect.
