It has already been said that a heavy responsibility has been thrown on the courts in the USSR in regard not only to establishing guilt but also to finding, within the bounds of the provisions of the law, the proper measure of social defense to insure a corrective influence on the one on whom it is assessed. Guilt is often obvious, but the proper steps to take in an attempt to see that the offender does not repeat his crime do not usually show themselves with such clarity.
The court, in trial, is not limited in any way in its efforts to get complete testimony and an accurate interpretation of such information. It is one of the fundamental principles of the administration of Soviet criminal law that the responsibility for the fullness and correctness of both investigation and verdict in the course of the trial rests on the court, and it may take any action on its own initiative to secure such ends. The prosecution and the defense may actually conduct the case within the bounds and direction which the court gives, but the court sets such limits and directions, interferes at any time on any point not cleared up by the argument, and decides on all questions relative to the examination. The court is independent of the opinion of either party in the trial and it is its responsibility to investigate any circumstance that appears essential to the case, whether the parties request it or not. It may likewise rule out what appears to be non-essential, even if it is requested by one of the parties. It is master of the whole proceedings and the expressed basic principle guiding its actions is to get at the truth of the incident involved and interpret the act in the light of all circumstances, so that a correct measure both for the protection of society from the socially dangerous and for the rehabilitation of the individual may be given.
Superhuman wisdom would be required to fulfill such a demand if the judge acted alone, or even in conjunction with his co-judges, the two jurors. But the Code of Criminal Procedure has provided that he be supplied with whatever aid scientific research and endeavor can give. During the trial the court may call experts and it may also have the benefit of advice or testimony of specialized institutions connected with it.
With no further evidence than the space devoted to the use of experts by the Code of Criminal Procedure, one would know that much importance was attached to the practice in the USSR. It is the subject of many articles, not only as regards the use of such aids in the court trial but, as already seen, in the preliminary trial as well. It might, because of its frequency, become a loose, taken-for-granted observance, but there are safeguards which make it a matter of serious regard.
One matter of interest in the use of such experts as the defense itself may request to have called is that there is never any financial transaction between the two. The expert receives his fee from the state and in case the defendant is found guilty it is charged to him. This practice eliminates the possible sense on the part of the expert that he must give evidence, or rather interpretations, in favor of the man from whom he is receiving money. He has no feeling of obligation in this direction and is thus more disposed to give unprejudiced opinions. The spectacle of the bitter clashing of “alienists” hired by prosecution and defense is not likely to take place in a Soviet court room. Opinions naturally differ and on occasion the court may have to summon others, so that he may see which way the weight of opinion falls, but the dividing line is not due to a desire on the part of either to defend his client.
Experts are called by the courts whenever specialized information of any kind that is desired is available. Article 63 of the Code of Criminal Procedure states that “Experts are called in when in the investigation and examination of the case, special knowledge in science, art, and the crafts is required.” And in a note to the same article it is further provided that “Experts must be called in to establish the cause of death and the character of bodily injuries, as well as in order to determine the psychic condition of the accused or of the witness if there be any doubt on this score in the opinion of the court or of the investigation.”
A limitation is, of course, placed in that a science may not have grown in such a way as to furnish a reliable basis for inspection of evidence and conclusions. On the other hand something of an unusual nature may be called in a case presenting such a problem as one related to the author by a state prosecutor. In the USSR one causing a suicide receives a severe sentence. In a case of a double suicide of two women, there seemed no clue pointing to the guilt of any person until a small drawing was discovered. On the evidence obtained from this paper, with the aid of an expert in the identification of characteristics of lines and angles, an arrest was made and a confession and corroborating data obtained. This would not ordinarily be a legitimate line of expert aid, but in this case it afforded the only chance of detection. It is an excellent example of a case where expert testimony may be the only available resource.
The expert, once summoned, has practically unlimited rights and privileges in gathering needed material for forming his conclusions. He is given all the data in the case for study, and he attends throughout the entire trial exactly as do the prosecution and defense. He may question the witnesses, ask for any further materials such as publications, documents, records, or even the subpœnaing of witnesses, and the court sees that his requests are granted. It is said that there is no known case of a refusal of co-operation with the expert on the part of either court or investigator. He is responsible in arriving at the proper solution of the case, and he is held accountable for any negligence in obtaining any information that can contribute to the accuracy of his conclusion. He may, make an error but he may not falsify, at least not without penalty. The Code of Criminal Procedure which devotes so much attention to this matter of experts says, “In regard to answering summonses, obligation to speak the truth, responsibility for false testimony, i.e., for deliberately false and not mistaken testimony, the expert shall be equal to witnesses.”
But experts may disagree, even honestly and without regard to a fee! Also, it is conceivable that one might be inadequate. An American mind, at least one whose owner has attended court in the United States, might understand such a contention. The Soviet Code of Criminal Procedure takes care of that possibility, too. In Article 300 we find it provided that, “If the expert conclusion be found insufficiently clear or inadequate, and also in the event of dissension among experts, the court shall appoint new experts, either on its own initiative or upon the request of either side.”
The conclusion of the experts is given at the close of the hearing and is attached to the records of the case. The court does not have to agree with the findings but he must consider them. He is free to criticise, and so, for that matter, is either of the sides in the case. But, in any disagreement he must defend himself well. The Code of Criminal Procedure again says:1 “However, if the court disagrees with the conclusion of the experts, such dissent shall be minutely motivated either in the verdict or in a special rider.”
The testimony of the expert is held to be of peculiar character in Soviet judicature. He is not a witness, giving facts, but it is his function to examine and appraise facts, to inspect and to weigh and to give his opinions and conclusions in the special way of which he is capable. His evidence is distinguished from the other given in the trial in that it is specialized and independent. In other words the court can look after the facts but he wants the expert to tell him the meaning of what he finds out. And the experts have accepted the challenge and the responsibility with vigor. They have developed what might almost be called an “official psychology” that fits well into the nation’s philosophy.
This science, called “judicial psychology,” occupies first place among the branches used by the courts in the Soviet judicature, and the second of importance is correctional labor psychology. The authorities attach no importance to what we call criminal psychology because they reject the idea that the criminal has any psychological or biological peculiarity. The use of the term alone suggests that they have, and the content likewise reminds them of some brand of Lombroso doctrine. For their theory of crime with its economic base, with its contention that this phenomena results practically in toto from the exploitation of one class by another, such a consideration would not do. Here one sees an application of their theory of crime. The criminal for them is like other people, and as the classless society approaches its perfect state a new social consciousness will evolve and any urge to crime will disappear.
They reject likewise a juridical psychology which makes use of an analysis of psychological concepts into such elements as “imprudence,” “intent,” “spiritual agitation” because its content is too much one of juridical scholasticism, and affords no practical aid.
Judicial psychology, considered in its broader sense, would involve the correctional labor psychology referred to above as one branch of this science important to the Soviet judicature. Defined in this larger way it would mean the application to the work of the court and the corrective labor institutions of all results of psychological research. Used in the narrower meaning it refers to criminal procedure psychology, or the application of whatever is known in this field to the case as a whole during the procedure or what transpired in the preliminary investigation. It would comprise the psychology of the accused, of the witnesses, of any other participant, even of the judge, jurors, experts themselves, and of the prosecutor and defense. They emphasize that they do not deal with the breaking up of the personality under consideration into such atoms as attention, memory, etc. as is done in the German school, but that they study the entire behavior of the witness, or other person, against a background of the broad, whole situation of the judicial investigation. They interest themselves, first of all, in the obtaining of true testimony and later in its correct appraisal, and their chief endeavor is to develop a better technique to arrive at these ends. With the emphasis they put on the importance of this usage and the talent they have in the field and the serious attitude the research workers take toward the problem, they should develop something compensating for their great effort.
But in the field of correctional labor psychology there should be an even greater future. This is where the practical worker begs for more light from his scientific colleague. It is one field, said an authority, where the practical worker has gone on ahead of the research worker. There is eagerness to regenerate the psychology of the lawbreaker, to get him so readjusted that he will fit usefully into life. But more of this will be found in the chapter on Corrective Labor.
To think only of the individual and his happiness would spur a scientist on to great effort, but it is even more than that in this instance. The nation’s progress toward its ideal depends on the successful use of these unfitted elements. It is no wonder that so many of the best minds are devoting themselves to working out the most adequate possible corrective labor policy. Filled with zeal as they are for their cause, they feel the responsibility which rests on them of making every human possible of use in the Socialist order.
There are two institutes attached to the judicature in the USSR that require special attention in this consideration of expert aid rendered to the courts. Their work is of the utmost importance in the whole system of criminal procedure and the administration of corrective labor. The two referred to are the Serbsky Memorial Judicial Psychiatric Institute and the Institute of Criminal and Correctional Labor Policy, both attached to the office of the Attorney General and to the Commissariat of Justice. It was in visits to these two places that the writer experienced the greatest enthusiasm for what is being accomplished in the field of criminal repression in the USSR. Work of the finest type is being carried on in the lines covered by these two institutions by staffs well equipped for their respective fields of endeavor.
The writer visited the Institute of Criminal and Correctional Labor Policy several times, looked through its library and used its books, and had the aid by conferences and advice of Director Shlaposnitchov, of the assistant director, of Professor Brusilovsky, and others of its officers. It is admirably staffed all the way through by persons not only of ability but of social conscience. The seriousness with which they attack the problems which face them and their acquaintance with the work being done in other nations are bound to impress anyone.
This Institute carries out the usual policy in the USSR of combining the theoretical and the practical. Along with those who are engaged in problems of research into the cause and treatment of crime there come the workers from the courts with practical problems to solve. Working in the library and reference section are persons who read and speak several languages and who carry their research into the study of foreign legislation and reports.
There are a number of sections devoted to special lines of inquiry, chief of which are: Criminal Law and Criminal Trial, a Judicial Section, Statistical Section, and one giving its attention to the problems of juvenile offenders.
Serbsky Memorial Judicial Psychiatric Institute is the principal other scientific body on which the courts rely for solving their crime problem. It has likewise its practical and theoretical side. Research is carried on by a large staff of medical men and women, of research workers, of professors, and collaborators, and it publishes the results in numerous volumes. It also holds conferences and discussion meetings. It is equipped with all the latest devices and instruments for treatment of its cases and works in close contact with judicial establishments. Its director gave the following as the purposes of the Institute:
(1) To examine all those about to be tried when there is a question as to psychic condition.
(2) To aid all correctional labor camps both as to policy and on actual cases.
(3) To help in problems of juvenile delinquents.
(4) To carry on research in the problems connected with the work of the Institute.
(5) To establish graduate courses and train medical aids.
The capacity for patients is one hundred and fifty beds, these are divided into different groups; such as those for men, for women, for children, for the definitely deranged, and for those who are of apparently sane condition.
No one is admitted at Serbsky except those who have come in contact with the law, through its contravention. When a question of sanity comes up in a case at trial or in the preliminary stage of procedure, it may be cleared up by a brief examination by doctors, but in every case where extended observation is needed the person is sent to Serbsky. After not longer than a month a report is made to the court. In case insanity is adjudged by the staff, then the patient may be sent to a hospital where care is given him, or, if he is dangerously demented, he is placed in an institution where there is more restriction and compulsory treatment and care.
The Institute maintains a department where children are kept, and where they are taught by teachers who come in for that purpose, and trained in certain arts and crafts. Also, some adults are kept beyond the month period when it is thought that only brief treatment is needed so that the trial may go on. There was one who had been there for eight months and another for six at the time of the author’s visit.
Because of the short period of retention in this place one would not expect that much of a constructive nature could be done in the matter of work. But here the policy of Soviet treatment shows to advantage. The shop teacher exhibited to us with pride what he had been able to accomplish, and his enthusiasm was justified. In accordance with their theory that labor can correct almost anything they use it here as a constructive treatment. They also use, as has already been said, all of the latest medical and psychological therapy, but there is at the same time an insistence that training for work, giving one something to do and teaching him how to do it well, is the best way to psychical readjustment.
Pursuant to the fulfillment of this idea those sent here make things and they are carefully observed while they work. Some of the objects in the shops and on exhibit in a small conference room were beautiful models. Among those, of especial note, there was an airplane, perfect in minute detail, a movie machine, a system of traffic lights, and a collective shop made by the children. The latter would have a political significance, of course, and serve to put over education of a socialist nature.
As one goes into Serbsky Institute one encounters a guard at the outer gate, and the feeling is that here is a prison. It is, of course, of a kind. Men who are in this place are, many of them, of a dangerous nature, such as we would call criminally insane. This terminology will not do, however, for Soviet criminology, as one may be either insane or criminal, but not both. But a number are guilty of murder, are pleading insanity as a defense when they may, of course, be sane; a number have made homicidal attacks on individuals. With this in mind one expects to see more of a prison atmosphere prevail.
On the outside there were no armed guards in evidence, and we were told that there were none. When we went through a ward of some twenty-odd men of the most dangerous type with only a woman attendant, and no one else about, the writer frankly felt somewhat nervous. It seemed they ought to be under guard, but the woman in charge assured us that there had never been an attack by one of them on an attendant. The attitude of the Serbsky staff toward the patients and the attitude they manage to get from them in return seemed to us remarkable.
We went through the gardens where those persons of a less dangerous nature were reading, talking, or doing whatever they wished. Some came to speak to us. One wished to make a long speech. A part of these were judged to be mentally normal, others must return to face their trial. We came at last to the place where are kept the most obstreperous; those who would surely make an attempt to escape if not restrained. This was the only example the writer encountered in Russia of persons locked in cells. There may be others in isolated instances, but solitary confinement has been done away with as a matter of policy. The building housing these prisoners was two-story, and the cells faced inward on the garden. There were tall big windows of unbreakable glass affording plenty of light, but the ventilation was bad. A remark was made to that effect and we were told that it was an old building they had had to utilize, and that it was to be replaced within the year. It certainly was out of keeping with the rest of the place, and made us think that it would actually be taken care of before long. However, there were not many persons there. Glass panes in the doors enabled one to peer in and there were only ten inmates in all the rooms on the two floors.
It was in one of these cells, where all the furniture is secured to the floor, that we were allowed to talk for a moment to a man who is quite a character in criminal circles in the USSR. He is held to be the chief swindler of the country and a recital of his escapades made the assertion sound entirely plausible. Perhaps it should be emphasized for fear that it was not made clear above, that it is not the ravingly insane who are kept in these rooms. They are the ones kept in the ward already mentioned. These are they who are the more dangerous criminally, who possibly are not insane at all. The swindler was held to be normal mentally, and if he got away with all that his record enumerated one feels sure he must be.
The swindler, a young man of near thirty, thin, dark, sat morosely on his cot as we went in. The attendant spoke to him, put her hand on his shoulder. We had the story of him before we entered. He had been in prison a number of times, he had supplied a luxurious living to himself and admiring companions over a period of years. He had been sent to this Institute at several of his previous trials and the opinion had been each time that he was mentally normal. A few months before our visit he had been returned to court to stand trial, and had been sent to a corrective labor institution. But he had refused to work. He had refused to follow any of the prison régime, and the authorities had returned him to Serbsky for a check on his mental condition. He ignored us, seemed hardly to be conscious of our presence, as he begged to know of the young woman what they were going to do with him now. She talked to him for a few moments in an encouraging manner. Her effort with him, she said, was to convince him of a better way of living by means of the training he would get in the corrective labor institution.
We had already been in the children’s department and had talked there to two girls whom we were told to remember for future reference. One in particular was a pretty, gentle-appearing child of twelve. Here is her story. She had been a run-away, she had wandered in various parts of the USSR, or so she said. Her acts of a criminal nature had all been directed against children. She had stolen several whom she said she had pinched and tortured in a sadistic manner and killed. The number she set at ten, but there was no verification of her report. She had become well enough known and feared in certain sections so that she was threatened by mothers of young children if she so much as entered the village or town. She had a few months previously come into the care of the Institute, and they felt sure that an entire change of her whole character had been effected. On the wall of the room where she stayed she had put some pictures, and she had become interested in art as well as other work and study. They thought her normal, and although her family wished her returned to its custody, the opinion was that the environment had not up to then been sufficiently constructive to permit that. They were sending her to an institution at Leningrad where she was to be taught and trained in some labor.
Even at the risk of being tedious, it seems desirable to record two more cases among the children. In a yard at the rear of the building we found a group of boys at play. Two of them were indicated as presenting challenging problems. Safely back in a conference room we heard of what they had done. The first case especially was interesting as indicating that animosity does not always exist in the treatment of those who are in opposition to the proletariat rule.
A boy of seventeen, who was the son of a Kulak, had been discharged from his job for indolence. He went later to stay with a friend overnight. He wanted the friend to go with him to some place to which the mother objected. Filled with anger he waited until the son had departed for school the next morning, then murdered the mother, took some money which she had in the house, and escaped. When caught, he was sent to Serbsky for examination and the analysis showed mental deficiency and a difficult, sulky character. They had kept him for a time, had made some progress with him, and were then about to send him to a medical-pedagogical institution for juveniles where he would be trained and treated.
The other boy, a charming black-haired fellow of thirteen, was held to be normal, but he was an alcoholic and stole constantly. The trouble in his case seemed to be in an irrational, coddling kind of upbringing. The decision was to send him to a state educational institution.
There were only seven women inmates of the institution at the time of our visit and in view of the high percentage of women criminals in the USSR that seemed strange. No explanation was vouchsafed in answer to a question as to the cause, but it might indicate that women in this country do not base a defense plea on grounds of insanity!
With such thorough effort as the care in Serbsky indicates, the conclusions as to mental condition ought to be as authoritative as human fallacy permits. The institution has representatives in various shops and schools and co-operates closely with the heads of the various prisons, and every effort is made at supervision and observation of those within its jurisdiction. We asked for statistics on results and were reminded that this work is all very new in the USSR, of necessity, and that figures were not complete, but that we could be assured that the results were worth to them all the painstaking care they put on their work.
Footnotes
1. Article 295.