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Some Observations on the Law of Evidence: Consciousness of Guilt (with D. Slesinger), 77 University of Pennsylvania Law Review 725 (1929)


In previous papers we discussed two aspects of state of

mind: (I) where it was used to prove an act in issue; I and (2)

where it was itself in issue. In order to discuss it scientifically

it was first necessary to dispose of linguistic differences between

modern psychology and the law, because of the attitude of the

former toward introspective studies of non-verifiable behavior.

After discovering what behavior was referred to by the legal

concept, that behavior was discussed in the light of recent psychological

study. It then appeared that state of mind to prove

an act and state of mind in issue were two different phenomena

which easily became confused because of the tendency to use a

single phrase to cover them both. Further analysis revealed that

the concept could profitably be broken up according to the use to

which the evidence was put in various cases. We finally concluded

that the phrase "state of mind" was dangerous principally

because of the inclination to regard it as a fact instead of looking

upon it as a middle term hypothetically connecting observable

behavior phenomena; and that as a phrase it is useful for getting

certain evidence before the jury, but not as a criterion of such


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