common to us all—may result in a loss of self-control and gradual degeneration which is acquired and not due necessarily to disease, inheritance or environment. If this is true of individuals, it is true equally that whole communities and even nations may degenerate to a low state, or be destroyed from a lax administration of justice. Human and divine laws are intended to secure the preservation of social order and the betterment of a community. On their execution depends the security of human life. If selfpreservation is a maxim or principle which may be a sufficient defense of the individual, in a larger sense, self-preservation may be a warrant for a community to adopt extraordinary measures for its protection as well as for the prevention of crime.

II. If persons actually insane have been convicted of capital crimes, which we believe has been of rare occurrence, it has more frequently happened that a crime committed in an exacerbation of some one of the human passions has been condoned mainly through a doubt of the sanity of the criminal created by the evidence of medical witnesses who would not have felt warranted in signing a certificate of insanity for detention in a hospital, as no single symptom had been presented that antedated the criminal

act.

III. In the opinion of some, the trial judges have freely opened the way to the introduction of extraneous issues; have permitted the introduction of highly technical questions, the use of scientific terms that do not imply necessarily advances in psychiatric knowledge, nor are universally accepted. It is admitted the names are new discoveries, unfamiliar, beyond the comprehension of the court and jury, in themselves having no significance, yet they have a mysterious influence, and work the court into a state of doubt or scientific indigestion. It is believed that insufficient attempts are made to differentiate the operation of the uncontrolled human passions from what we ordinarily understand to be the disease or condition we call insanity. Some amendment or change in the present practice of introducing the medical witness upon the stand without bias or the suspicion of it would be welcomed with great satisfaction, but it might be regarded as a gratuitous offer for a medical man to make suggestions about legal procedures that belong properly to the courts. Neither is there any limit to the number of experts that may be summoned in the present practice,

but, on the other hand, there is a tendency to an increase. In a trial in a neighboring city, sixteen experts were summoned, eight for the commonwealth and eight for the defense. It is submitted to you whether this is a reflection on the certainties, or does it show the uncertainties of our science?

IV. There remains yet another problem that the penologist must study, viz., whether it is possible that any modification of the penalties for crime can be made that would more justly recognize varying degrees of criminality?

V. Finally, the question and thought will recur, must the helplessness of man to approximate absolute justice in dealing with the class of cases we have been considering be confessed, and their disposition passed beyond all earthly courts to a Higher Tribunal hereafter?

COURT TESTIMONY OF ALIENISTS.*

BY BRITTON D. EVANS, M. D.,

Medical Superintendent, New Jersey State Hospital, Morris Plains, N. J.

Specialists in mental and nervous diseases were not called into courts of law as experts until long after it had been the custom to command the services of persons supposed to be skilled along other scientific or special lines of work.

A hasty review of the literature having reference to expert testimony shows that the real development of a demand for expert medical evidence began with the calling of surgeons as advisers in court procedures, where complicated surgical problems were presented. Surgical methods and surgical results so greatly varied that justices of the courts of law, it seems, naturally felt incompetent to pass intelligently upon matters so foreign to their training and so far removed from the field of their general operations.

In English judicial tribunals, the expert made his appearance first as an adviser of the court. As early as 1353 the sheriff was ordered to summon skillful surgeons from London in an appeal of mayhem, to inform the court whether the wound in question was really mayhem or not.

In the seventeenth century it became necessary to call experts as helpers of the jury. In 1665 at the noted trial of the Suffolk witches, Sir Thomas Browne, a prominent physician and natural philosopher, was called upon to examine the accused, after which he gave expert testimony in court. This seems to have been a starting-point in English courts in the calling of medical experts, for the purpose of having them give their opinions in order that the courts and juries might be enlightened upon scientific medical subjects.

It is the purpose of this paper to discuss in a somewhat general manner some of the relations of medicine to law, but to particu

* Read at the sixty-fifth annual meeting of the American MedicoPsychological Association, Atlantic City, N. J., June 1-4, 1909.

larly deal with medico-legal matters which involve the question of mental unsoundness. We may differ as to the proper order of the discussion of this subject and entertain different views as to the force of the contentions herein set forth. That there should be a difference of opinion in the discussion of this subject is natural, since differences of opinion are so common to scientific subjects in general.

It is generally admitted in the columns of the lay and medical press that medical experts occasionally disagree. It is also quite well known that the average American citizen believes himself to be a standard authority on medical expert testimony. Men who know nothing of the responsibilities and duties of a presiding justice freely criticise his rulings. Men who know little of medicine pay their critical respects to the experts. The spirit of criticism goes further: Members of the legal profession with brotherly sarcasm discuss openly the gross mismanagement of court cases and the palpable blunders of the counsel; but this is not where the storm center of criticism is to be found. The testimony of medical experts furnishes the one theme which all men seem to feel fully qualified to analyze, simplify, rearrange, boil down or build up to meet individual fancy or personal prejudice.

The advisability, wisdom, necessity and propriety of employing expert testimony, as well as the weight that should be given it, has for more than a century been subjected to severe criticism and more or less violent discussion. The fact that it has for so long a period been given the critical attention of the ablest exponents of the bar, and the most accomplished members of the medical profession, and that it still is found to be an indispensable and highly important part of a large proportion of court procedures, is at least presumptive evidence that its importance is recognized in the courts of the civilized world, and that it will always be a necessary feature in the promotion of the cause of justice.

From a psychological standpoint it may be noted that it is a remarkable peculiarity of human nature that men who seem totally unqualified to do a thing properly are prone to arrogate to themselves an unlimited qualification to enlighten others as to the only correct mode of action. This manner of conduct has always obtained, and so long as we are human it will continue in a greater or lesser degree in spite of the babblings of superficial critics and

the malicious and caustic fault-findings of persons who feel they have found palpable errors but possess no ability to offer a practical remedy.

This particular phase of our subject calls for some consideration since highly reputable members of the professions of law and medicine have published their disapproval of the present mode or process of selecting medical experts, the manner of conducting their direct and cross examinations, the latitude accorded to them in the giving of their testimony, the value placed upon hypothetical evidence, the wide scope to the formation and use of hypothetical questions, the fact that experts on the opposite sides of a given cause so frequently disagree as to diagnosis, classification, testamentary capacity, criminal responsibility and contractual capacity, the fees paid to experts for their court work and services and the matter of the expert witness becoming either argumentative or combative while testifying.

These contentions are worthy of serious thought and discussion, and I feel that before this body of professional and scientific men, these important phases of the subject should be taken up and discussed in a deliberate and dispassionate way.

In taking up these propositions in regular sequence, it may be well to bear in mind that some lawyers have contended that the remedy rests with the medical profession; other lawyers assert that the proper solution must be reached by the co-operation of the two professions; some medical men contend that the statutes which regulate court procedure are at fault; others declare that the desire of medical witnesses to become advocates is responsible for a large part of the adverse criticism. Without taking issue at this time with any of these critics upon these points and assuming that they are all experts upon the question which they have attempted to analyze, it is clear to us who desire to be impartial and fair, that among this array of expert critics there is evidenced a considerable diversity of opinion about a proposition in which they contend there should be absolute unanimity on the part of medical experts, and since these savants fail to agree among themselves, and since no two suggest the same remedy, how are we to assume that they are capable of furnishing a practical legal order of procedure which will place expert testimony upon a more satisfactory