IMAGE EVALUATION TEST TARGET (MT-3) ^ y. 1.0 I.I 1^ Ui 12.2 Hi i^ III 2.0 1.8 1.25 i 1.4 1^ V] >i' s^i "mijJMj . •""•^v-rmmtm^ •^V f^'V" ' W'l-l^if'^WW ^T Medico/ Evidence in Courts of Law. BY DANIEL CLARK, M. D., Superintendent of tlie Asylum for the Insane, Toronto, Ontario. Any one, wlio has paid even a anperficial attention to medical evidence given in courts of law, must have noticed, from tini'i to time, how easily medical witnesses can he j)rocured to give evidence on hoth sides of a case. It matters not how clear may be the merits of the question, nor how little ground exists for difference of opinion, yet, medical men are found who will give positive testimony on either side, at the shortest notice, and on very flimsy premises. Lawyers take advantage of such conflict of oi)inion, and set up one medical man against another, until ])oth judge and jury value the evidence l)y the reputed credibility and professional standing of each, and virtually neutralize the evidence of all by a system of offsets. This only refers to medi- cal opinions, for in rospect to facts, all witnesses — lay or professional — stand on common ground, and state what ar3 matters of observation, " without note or comment." It is true, medical science gives room for great differ- ences of opinion, seeing it has not the exactness of mathematics. Herein lies the error in dos-raatiziuor on much which is so obscure. Many of these varieties of opinion arise from a vain endeavor to explain every- thing connected with causes of litigation. In the pres- ence of a court and the assembled multitude it may not be pleasant to pronounce our ignorance; yet, in the endeavor to give answers hedged round with vain * Read before the Canada Medical Association, at Hamilton, Ontario, Sep- tember 12th, 1878. 2 hypotheses of all kiiuls, the medical witness is apt to have iiii])leasantly forced upon him a display of how little he knows under a cross-examination, and thus what would have been received as conij)etent testimony, if it had been confined to sure opinion, is mari-ed and rendered subject to doubt by the witness pretending to know too much. In the plethora of opinion lies' one reason for so much contradictory evidence. It is well never to say more than the question covers, and to be guarded in even doing that, if the interrogation hap- pens not to be relevant to the case at issue. Another reason is in supposing ourselves as being witnesses for one side only, because we happen to be sul)poenaed by one of the pai-ties. The prosecutor o;* defendant, who calls a medical man, expects him to give ex parte evidence. He is paid a miserable pittance to cover railway and hotel expenses; is his testimony not bought and paid for, to be used on the disburser's behalf? This feeling, often involuntary, gets liold of the witness, and, inuuediately the examination begins, he is on the alert against the wiles of the opposite law- yer, and often unconsciously is put upon the defensive to the injury of the truth. We have all felt this tend- ency. This position is not intentional, but the badger- ing of an indiscreet lawyer, may drive a medical witness to defend opinions which may give a coloring to a case not intended at the outset. This bias has to be guarded against. The witness is in court to tell all, and only the truth, as far as in him lies. It is not for him to think of the result, consequent thereon, to any party. In giving evidence it is not safe to weigh what will be the consequences flowing from its acceptance. "Let justice be done though the heavens fall." Unfortu- nately medical witnesses, giving opuiions based on experience, are looked upon with suspicion by the courts. 8 J. H. Balfoiii'-Browne, in the last edition of "The Medi- cal Jiirisprudonce of Insanity," says: "That medical testimony, when received, shouhi be received as of very inferior worth!''' Medical witnesses are said to be "rash," and "to have expressed crude generalizations with an imperturbable effrontery," and that alienist physicians ask to be believed, " with an implicit faith, which is only compatilde with the grossest ignorance; lawyers should assert the utter uselessness of the evi- dence of Hclentiiic witnesses in relation to questions of insanity." Lord Campbell says that "hardly any weight should be given to the evidence of skilled witnesses." Judge Davis declares in cases of insanity, "men of good common sense would give opinions worth more than that of all the experts in the country." A book might be filled with such choice quotations. If those who have made this bi-anch of medical research a life long study, are such ignorant and nnreliable wit- nesses, what shall be said of the intelligent thousands and tens of thousands in general practice? It is also to be remembered, in cases of damage for malpractice, that each surgeon may have a mode of treat- ment distinct from any other, but sufficiently practical to be approved of in general practice, by any intelli- gent physician or surgeon. This treatment may be denounced by some one who is not able, from experience, to test its value, and an unlettered jury may decide the merits of the case in its professional aspects, by consid- ering one method as only worthy of consideration, and give a verdict accordingly, to the astonishment of those best capable of judging. Next to the inscrutable ways of Providence stand the verdicts of juries, in their un- certainty and unforseen results. This selection, by non- professional men, of one method of treatment, to the exclusion of all others, has been seen by me on several r 4 occftHioiiH. At one time the prosecution was Lecanse of a sliortened t'cinur, Jiiid the merits of the (h)iil)k^ inclined plane or a straight splint, were decided by a jury se- lected from one of t.ie back townships. Another was decided in favor of a flaj) operation as against a circular, the jury lu'ing conij)ose(l mostly of farmers, fresh from th(i harvest field. Not long since I attended a trial in this city arid the jury were treated to clinics on the dura wMer^ arachnoid, pia mater and their blood vessels. They understood tli^' merits of the case, after several hours of medical dissertations, as much as if the Crown Council had given an address in Choctaw. I envied one juryman who slept soundly through it all, except when elbowed by a neighbor. Antagonisms unhappily existing among medical men lead to conflict of opinion. A case comes from a vil- lasre, a town, or even a city. Observation teaches that the smaller the area from which such evidence is drawn, the stronger are the contentions in the locality, and tlie more likely does it become that sides are taken before the suit goes to court. It is a matter of every day experience that in a majority of oases, such a locality will furnish medical evidence for prosecutor and defend- ant. The reasons already given may have something to do with this diversity of conception. I fear un- friendly feelings, of a professional nature, must some- times be taken into account. To the honor of our pro- fession it is seldom that false testimony is given from motives of revenge. Animosity against a professional brother seldom reaches perjury, yet, a love of establish- ing proof on a different basis from that of a rival, often leads to false conclusions, not intended by the witness. If this itching for novelty leads to wrong impressions, they are still farther intensified by ambiguity, which may be caused by unnecessary economy of words, or l)y the other extreme of profuseness of illuatration, not conducive to pei'Hpicuity. Such being the case, a court refuses to reconcile contradictionH among those who aro supposed to know the merits of the case. The late Lord Camp])ell said to three intelligent physicians, "you may go home to your patients, and be more usefully employed there than you have been here!" An equally learned judge said of another doctor, who was well cpudiiied to give good evidence, "you might as well have staid at home and attended your patients." A Vice Chancellor of the Empire stated "that his experience taught him there were very few cases of insanity, in which any good came from the .examination of medical witnesses. Their evidence sometimes adorned a case, and gave rise to very agree- able and interesting scientific discussions; but, after all, it had little or no weight with a jury." All judges do not sneer in the same manner, nor indulge in irony and sarcasm at the expense of the medical profession, but the weight given to a physician's or a surgeon's testimony is not commensurate with his capability to give intelligent and experienced mednal opinions. I can see, however, indications of a better understanding between medicine and law. The study of the obsolete is giving place to the practical, and metaphysical dis- tinctions, to pathological conditions, in considering many of the exciting causes of human conduct, coming under the head of jurisprudence. It will be seen how medi- cine and law are considei'ed from different stand-points, and as a consequence the conclusions are diametrically opposite to one another. Medicine holds that all insane persons are afflicted with bodily disease. Law says this is not always the case. Medicine draws a necessary line between idiocy and insanity — the one being con- genital, and the other pathological. Law says they are <; one. MediciiH' declares tliat insanity, hiding a mor))id state, no layman eaii ])r<)i)erly pronounce jiulj^in(!nt uj)on a j)atient'M condition, nor in respect to facts that rise thercifroni. Liiw as-terts that a jury can, and should decide on the nunital condition of tlie insane, biised upon personal observation, just aH an ignorant man would pronounce on the kind of disease a jx'rson hml, from appearances alone. Medicine can showfroju living examples that the sense of right arul wrong, the pos- session of delusions, and many other tests propounded by the disciples of Coke and Blackstone, can have no value to discover insanity, when taken alone, for many insane have a keen sense; of the former, and nniny not insane are troubled with the latter. Law says posses-. sion of the first is evidence of a so-ind mind, but tlie presence of the other shows insanity. Medicine extends the hand of charity to the mentally diseased, and asks that such be kept in durance ibr the purpose of cure or safety to themselves or others. Law applies itti iron- clad tests, and punishes all who can not j)ass the crucial ordeal. Medicine seeks after causes of action. Law deals out justice on the ground-work of appearances. Experts are called into court to testify in cases requir- ing the special aid of knowledge in chemistry, mechan- ics, or any other branch of science and art, and sucli testimony is accepted in its entirety ; but medical men who make a special study of mental diseases, must have their opinions measured by the uiental capacity of twelve jurymen, or worse still, by the dicta of judges, who accept rules laid down a century ago, when medi- cal research was still in its infancy. Germany, France, and many of the States of the Union have accepted the medical basis of proof. It is expected that the British and Canadian courts will not ignon; a system, that in every day practice will be found to be none the lesH effective in puniHliin^ the jjjuilty, while it will Have many a poor wretch from the infliction of a pun- ishment whidi he Imd not dcHerved, art an irresponsible being, any more than a child unborn. Judge Doe, of New Hampshire, in addressing the jury, State vs. Pike, says: "Tho loj^nl jintfc'ssioti, in profound ij^iioriincc of mental disease, have assailed the Huperintendents of asylums, who kr v all that was known on the suhjeet, and to wiiom the world owes an incal- culable rf**»-vr-,. <»<<:«w«'*-r ■ iJiM^UEiMM S 20 ill his pocket, or in fttiy otlior part of hi«i clothing. He may Imvc had diMtiiict iitteraiicc^ ; hut he lian h)Ht that ch>ar ciiuiiciatiou of w(>"(1h ami inuiiihlcH then out. lie was iiKjuisitivc, at one time, an to what was .'oing on around him; he may now IJHtcn to a recital of Htirring events, and take a monnMitary interest in them ; hut it is of short (hn-ation. He was active and industrioun ; hut he is now la/y. This recital might be extended indefi- nitely, hut, in short, then; is a perversion of the patient's whole character. The medical witness sees a case of dementia, yet, each of the symi>toms taken .seriatim, would liave no significance, being without salient points, to an iinobs(U"vant jury, and even the combined catah)gue, would have little force or weight in many courts of law. There may be no delusion appai-ent; there may be a sense of right imd wrong. Sharp questionings may elicit correct and intelligent ansv/ers, but a number of changes of character, such as 1 have enumerated, pronounce an unscmnd mind; or rather that physical disease has instrumentally imj)eded the health- ful exercise of mental vigor. The ancient aphorism holds true amid all the fluctuations of mental philoso- phy, /. ^., "a sane mind in a sane body." The appear- ances of disease may be faint, when taken in detail, but to a practiced eye, and to a matured judgment, accus- tomed to study the faintest outcrop of mental aljerra- tions, those peculiarities tell a tale which may have no weight vnth the unskilled in the protean forms of insanity. It is sometimes insisted upon that a categorical answer be given to every question put to a witness. It may be impossible truthfully to do this, because of the form in which the interrogation is put. The examiner is well aware of this fact, hence the bait cunningly thrown out to catch the unwary. For example, were it M my asked about a patient, "Did lio then refrain from 8p<'akinj< iionHeiiHe?" Were the answer "yen" it would imply that he had been Hjx'akiiiir it, hut had ceased to do HO. Were the answer "no" it would nie.. that ho had spoken nonsense, and continued to speak in the same strain up to the time under discussiiui. Neither answer mij,dit l)e true, for if the patient had not spoken at all, as indicatijd, the fallacy lay in an assumption which had no existence. It would he l)eg<^in<^the whole question, and neither a positive nor negative answer could cover the ground. This is only one Hj)e(;iinen of a legion of such questions which often perplex begin- ners, and an; ])ropounded with that object in view, and a negative or ])ositive answer demanded with legal pertinacity. When such traps are set and baited with sagacious design, a state of "masterly inactivity" is best, until the questioner goes back to legitinuite inter- rogati<^n A medical witness should never quote authorities, nor should he ))e entrapped into endorsing or refuting such, if they should be jjresented by council for liis consideration. No published books on medical subjects are competent witnesses in court ; nor is a wit- ness compelled to give an ojnnion about the views the authors may advance. The writers themselves are the only legitimate persons who can testify to their theories and beliefs. I have often seen witnesses caught in this way, even before the opposing council could put a veto on the irregularity. " Do you agree with Maudsley in his view on this point?" "How does it happen that Bucknill and you differ in this respect?'* "Can you give me Tuke's opinions on the subject under discus- sion ?" " In Kay's J urisprudence such and such theories are advanced, what do you think about them?" " You have read Taylor, will you state what he says about insanity in respect to competent wills, or suicide, 22 bi homicidal mania?" These are specimen interroga- tions which may be put, but need not be answered. A refusal to do so will be sustained liy the Court. If a witness begins to air his medical lore by quoting authors, he may be able to show his possession of a good memory, but he will not contribute any facts oi which he is cognizant, through giving lectures on the opinions of others. The most difficult position a medical man can be put in, is when called up to give evidence in cases of con-- tested wills. The capacity of a testator to make a will and the soundness of mind requisite to make a valid one, are often questions of great difficulty. It should be held generally as essential that the testator should have sufficient mental capacity to comprehend perfectly the condition of his property, his relation to the per- sons who were or might have been the objects of his bounty, the scope and bearings of the provisions of his will, and a memory of an activity sufficient to collect in his mind, without prompting, the particulars or ele- ments of the business to be transacted, and to retain them in his mind for a period sufficient to perceive at least their obvious relations to each other, and to be able to form some rational judgment with relation to them. ( Vide Rokenbaugh on Testamentary Capacity, Journal of Nervous and Mental Disease^ ^^J^ 1878.) This test will cover all the ground. It does not assert incapacity to eccentric testators, nor those who may be laboring under delusions of facts. Esquirol says : The brain may be affected, but it does not necessarily mean an impairment of the understanding. On the other hand, it was strongly asserted by Lord Brougham, and is now by certain class of thinkers, that any insane delusion entirely destroys the mental capacity of a testator to make a competent will. Lord Brougham jtf^> 23 tells U8 that when travelling in the north of Europe he at one time was taking a bath at his hotel. As he came out of it he saw a friend in the room, who at that time had died in India. He says he became insensible immediately afterwards. This apparition was doubtless the premonition of a fit. His lordship would not have agreed to have the rule of incapacity applied to himself on account of this hallucination. Lincoln had many delusions, so say his biographers. Sir Walter Scott was not exempt from them, when he was in the zenith of intellectual vigor. Dr. Johnson heard his dead mother calling out "Samuel." Lord Castlereagh, the brilliant but corrupt statesman, often saw a beautiful child in his chimney corner. Goethe also positively asserts "that on one occasion he saw distinctly his own double " — or himself outside of himself. General Rapp tells us that Bonaparte saw a star of great brilliancy above his head. Napoleon said : "It has never aban- doned ; I see it on all great occasions ; it orders me to go forward; and it is a constant sign of good fortune." Malebranch, Descartes, Luther, Wesley. Knox, Pascal, Loyola, and many of the most remarkable men of the past ages were the victims of all kinds of delusions and illusions. Yet, these children of genius could not be properly calied lunatics, even if genius be said to be nearly allied to madness. There is no doubt, in my own mind, that all such deceptions of the intellect or senses often exist without mental aberration being present of sufficient intensity to invalidate a will. "At the same time in the consideration of every case imbecility, delusions, monomania, or hallucinations, in- toxication, lucid intervals, undue influence or fraud, and presumptions arising from the character of the act itself, the age of the testator, and such bodily infirmi- ties as deafness, dumbness or blindness," must be well 24 weighed in considering testamentary capacity. Eccen- tricity is said to be the lowest form of insanity. It is seldom, however, that a will is made invalid because of its existence in the testator. In 1861, a wealthy Portugese died in Paris. He left a will with seventy- one codicils. One of which read "I leave for the Athenaeum of Paris 10,000 francs, and the half of the interest shall be paid to a professor of natural his y , who shall lecture on the colors and patterns of dresses and on the characters of animals." Another was, "My funeral shall take place at 3 p. m., the hour at which the rooks of the Louvre come home to dinner." The will was held to be valid, the Court saying " that these peculiarities were but the absurdities of a vain man." The peculiarities of the eccentric are as varied as are the phases of the mind, and it has been well said by Bedford, in his " Treatise on Wills," that " The eccentric man is aware of his peculiarity and persists in his course from choice and in defiance of popular senti- ment; while the monomaniac verily believes he is acting in conformity to the most wise and judicious counsels ; and often seems to have lost all control over his voluntary powers, and to be a dupe and victim of some demon like that of Socrates." Without entering into details, which would need a volume to elucidate fully, it is well in every case to consider whether the aberrations are ^uch as would warrant us to sign a cei'tificate of insanity to commit to an asylum for treatment and safe keeping. If we do not consider such to be safe at large, they are not responsible beings. We should examine as to delusions and ascertain if they are sufficiently strong to warp the judgment and seriously affect the conduct of the indi- vidual ; or, if they are of such an insulated nature as not to interfere to an appreciable extent with volition, ^mmm 26 and are not joined with morbid emotions and senti- . menta. It is also important to observe if the moral feelings and passions are perverted, if measured by a common standard, or better still by the patient's former temper and character, and if these are sufficiently mor- bid to affect the power of self-control. The impuls- ive form of insanity is to be examined with great care, for under its guise real culprits take shelter to avoid just penal consequences. The strongest evidence of its existence should be made manifest to a medical witness before he testifies to the presence of mental disease in such cases. If these cardinal points are kept in view, an aid to intelligent testimony will be the result. ift W*w W»||fPf#Jip.Ai'l!^!W! ,Ji Illy 111.1^4 P!iil|^)4JI|||pi THE i [MERICAN JOURNAL OF INSANITY. — •♦•♦• The Amkbican Journal op Insanity is published quarterly, at the State Lunatic Asylum, Utica, N. Y. The first number of each volume is issued in July. Editor, JOHN P. GRAY, M. D., LL. D., Medical Superintendent. Associate Editors, JUDSON B. ANDREWS, M. D., EDWARD N. BRUSH, M. D., T. F. KENRICK, M. D., WORTHINGTON W. MINER, M. D., , THEODORE DEECKE, Special Pathologist. <■ Assistant Physicia ». TERMS OP SUBSCRIPTION, Five Dollars per j^nnuin, in A.dvance. Exchanges, Books fOb Kevibw, and Business Communications may be sent to the Editor, directed as follows: "Journal op Insanity, State Lunatic Asylum,' Utica, N. Y." The Journal is now in its thirty-fifth year. It was established by the late Dr. Brigham, the first Superintendent of the New York State Lunatic Asylum, and after his death edited by Dr. T. R^meyn Beck, author of "Beck's Medical Jurisprudence;" and since 1854, by Dr. John P. Gray, and the Medical Staff of the Asylum. It is the oldest journal devoted especially to Insanity, its Treatment, Juris- prudence, &e., and is particularly valuable to the medical and legal professions, and to all interested in the subject of Insanity and Psy- chological Science I I -.JL. ¥^ *^