The Portland daily press., 1883-06-01


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man who may have been engaged for few
years only in the ordinary routine of medical
practice and who may have had no special
experience on the subject on which an opin-
ion is required, will be described by his
counsel sas most learned and eminent
member of the profession on whose opinion
the jury are as much ENTITLED to RELY as
on that Of the highly respectable gentleman
called on the other side, &c. The nomina-
ton of experts as witnesses by fhe Judge
who tries case, or by the Lord Chancellor
In his department, would do away with most
of the objections which now tell with SO
much force against their evidence As long
as they can be retained by either party. and
the profession is large enough to furnish a
great variety Of experts, so long will the
objections to the present system continue.
and the good be COMPOUNDED with the bad.
Bovill c. j.. in MAKING soma
remarks on medical evidence, saws: 'eThe
great misfortune or defect in medical testi-
mony hitherto has been that medical men,
like many other professional men. have been
too much in the habit of max ng themselves
partisans in endeavoring to support the par
tleuiar views OF the parties, on whose behalf
they have been called, and this has led 10
conflicts of opinion, which have sometimes
appeared not very creditable to the profess
sion''
Prof WAshburn, in a paper read before
the American Academy of Arts and
Sciences, says. THAT judge or lawyer may
consider himself fortunate who has not,
when tying case involving inquiries TO be
answered by experts, again and again felt
that the opinions advanced by the witness
had more to do with promoting the canse of
the party IN whose favor he appeared than
the furtherance of justice. This is partly
from the nature of the subject upon which
experts are usually called; and partly from
the inability which many learned and strong
minded men are under, of discriminating in
matters of Judgment and opinion between
what they wish and what they think, or
what upon principles of sound philosophy
they ought % believe. Among the classes
OF persons whose opinions as experts have
been literally made use of in the trial of
issues in court, are those who profess
knowledge Of medical science. Insanity, as
is well known, is NEST prolific subject of
inquiry in such tria s, as il affects the
capacity Of individuals to enter into legal
obligations or he extent of their RESPONSE
bilty for acts done. And, in the light of
the Testimony OF some of these experts. the
wonder III some minds has been, which was
the eraZier haf Of the @orld, those inside
or those outside the walls of Bedlam 2
The authur If Realized on Wills" Il dis
tinguisb+d judge and eminent legal writer,
says: 'Ex .ieiienee has shown both here
and IN England that medical experts differ
quite as widely in their differences and
opinions, as do other witnesses. That has
become SO uniform a result with medical
experts Of late that they are beginning to
b. regarded much in the light of hired advo-
Gates, and their testimony as nothing more
than studied argument, In favor Of the
Side for which they have been called SO
uniformly has this proved true in our limit
ed experience, that 1t would excite scarcely
less surprise to find an expert, called by one
side. testifying in any particular in favor of
the other side, than to find the counsel upon
either side arguing against their clients and
in favor OF their antagonists.
The inutility of the testimony of
medical experts upon questions of insanity
or mental incapacity arises chiefly from the
fact that so many gentlemen of about equal
experience testify SO Numerically opposite
oeaeh other upon all leading points Of a
case, without being able to assign any reason
satisfactory to the common mind, why they
should be brought to such different results.
and leaving no satisfactory mode of explain
ing il, except that which applies equally to
counsel-that they have been selected TO
present the strongest view of the side By
which they are summoned. : There
seems to be but one opinion as to the fact
that this kind of testimony is extremely I'M
satisfactory. This is the universal testi-
mony of the courts and of all writer's upon
the subject, both in England and in America,
including medical writers as well as others.
1t is perhaps half The cure to have become
fully conscious of the disease. We are
more and more confirmed in our opinion
that the difficulty GENES largely from the
manner in which the witnesses are selected.
The difficulty seems to be in determining
whether in making the preliminary examina-
ton preparatory 10 giving testimony, they
stand from the first in the position Of public
functionaries, bound to discharge fully and
fairly public duty, or in that of mere
agents OF one or the other party, bound TO
discover what they can favorable to their
client. :.
If the State or the courts do not esteem
the matter of sufficient importance to just-
fy the appointment Of public officers, for
the discharge of this difficult and response
bic public duty, it is certain that parties
must emp oy their own agents to do it; and
1t is perhaps almost equally certain, that if
1t is to be done in his mode. it will produce
two trained bands of witnesses. in battle ar
ray against each other, since neither party
is bound to produce, or will be likely to pro-
duce, those of their witnesses who will not
confirm their own views"
Taylor on Evidence leading English
work, says
Perhaps the testimony which least de-
serves credit with jury is that of skilled
witnesses. These gentlemen are usually
required TO speak, not to facts but to opin-
ions: and when this is the case, il is often
quite surprising to see with what facility
and to what an extent their views can be
made to correspond with the wishes or the
interests of the parties who call them. They
do not indeed wilfully misrepresent what
they think; but their judgments become SO
warped by regarding the subject in one
nT via tl,nt l.
~ disposed, they are incapable of express
ing candid opinion. To adopt the lam
guage OF Lord Campbell"-They come with
such bias in their minds to support the
cause in which they are embarked, that
hardly any weight should be given to their
evidence"
Similar opinions have also been expressed
by judges in this s ate. The attitude of our
own court is well indicated by the following
remarks taken from an opinion drawn by
one Of the most accomplished members of
the Supreme Court.
1T is not against the learning or integrity
OF medical experts, Or Of any men as class,
that lhese criticisms are directed, nor is
The necassity ignored ii providing some
means by which what is known in science
shall BIZ made available in courts. The criti-
clsm 10 that our present system of receiving
experts selected by he parties tends to con-
fuse AID misIcad the jury by too readily adj
hitting crude, partial or conflicting
theories, or false or prejudicial opinions;
aid the remedy is held to be in the
seieciitn Of experts, as auditors or
cemn issioners are appointed by the
court 1t is suggested that this
would be attended with reflex advantage
to The .egaI profession by making the cross
examination Of such witnesses better illus
traiUns of manners and of learning than
they are likely to be under the present
method of procedure
Citations of similar tenor might be null
tiplied, j. necessary A sufficient number
has been given, however, to show that the
evils of the present system, and the unfor-
tunate position in which il has placed the
medical profession. The remedy for this
condition Of affairs-until the legislature
shall intervene and provide for the appoint
ment of official expeits-must lie largely
with the medical profession. 1t must create
an esprit de corps, which shall jealou lly
maintain the dignity and honor of the pro-
fession, and discounienance anything which
shall tend to impair its influence. 1t must