If we rid ourselves of the assumption that we can measure the
moral culpability of the accused, the whole process of a criminal
trial consists in the assemblage of facts, the discussion, and the
decision upon the evidence. For the classical school, on the
other hand, such a trial has been regarded as a succession of
guarantees for the individual against society, and, by a sort of
reaction against the methods of legal proof, has been made to turn
upon the private conviction, not to say the intuition, of the
judge and counsel.
A criminal trial ought to retrace the path of the crime itself,
passing backward from the criminal action (a violation of the
law), in order to discover the criminal, and, in the psychological
domain, to establish the determining motives and the
anthropological type. Hence arises the necessity for the positive
school of reconsidering the testimony in a criminal case, so as to
give it its full importance, and to reinforce it with the data and
inferences not only of ordinary psychology, as the classical
school has always done (Pagano for instance, and Bentham,
Mittermaier, Ellero, and others), but also, and above all,
with the data and inferences of criminal anthropology and
psychology.
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