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

Dr. F. W. Langdon, of Cincinnati, Ohio, says in the Lancet Clinic of August 15, 1908: "While it is plain that it is not our province as medical men to instruct the representatives of the law as to methods of court procedure, we may properly insist that any blame or failure attaching to faulty methods of procedure shall not be shifted in the slightest degree upon the medical profession or such of its members who may chance to serve as expert witnesses."

It is not difficult to discover unsatisfactory features in established systems. When we attempt to correct defect which we in our wisdom feel we have found, then the real trouble begins.

Difference of opinion exhibited by physicians in court often depends upon the fact that the witnesses on different sides of a given cause have not been afforded equal opportunities for the examination of the person being tried or are required to form their judgments upon a radically different set of facts, or a set of facts so differently grouped and presented as to make agreement next to impossible.

"Another pro

Dr. Langdon, in the article referred to, says: posed solution of the difficulty is to abolish the hypothetical question and the expert witnesses altogether in cases concerning insanity and substitute a commission appointed by the court. This procedure is now available whenever the judge desires to exercise it. I have known it to be applied in Ohio, and have served on such a commission. The press has also informed us that it was carried out in New York State in a recent case of wide notoriety. The commission there, we are told, consisted of two lawyers and one physician appointed by the judge. The trial was stopped while the commission examined the defendant as to his sanity. Since the trial was resumed after their report was rendered, it is a fair presumption that the commission, or a majority of it, considered the defendant sane. I have heard it intimated, however, that the two lawyers in this case decided the defendant sane; that the doctor found him insane. As the report was not made public, so far as I know, this may be a surmise only. We all know by the verdict what the jury thought, and further, that the jury's verdict was confirmed by two qualified physicians after a careful study of the prisoner, extending over a month's time, during which they were in daily association with him. These physicians testified that