New-York tribune., 1907-04-17
THE EXPERT EVIL"

Or Allan McLane Hamilton in an interest
ing letter to THE New York Sun" renews his
suggestions for reforming the expert determlna-
tiOn of a defendants lunacy by the appointment
Of a permanent commission. He makes clear
why expert alienlsts cut such lamentaDle ng-
ure I'm the public mind. In the first place, there
is the provision Of the law that the defend
ant in order to be eXculpated must sur
"fer from such a defect of reason as not to
.lznow the nature and quality of the act and
that it is wrong" These words are by no
means so simple as they seem, and there is
plenty OF room for a difference Of opinion
between two experts who are agreed that
the defendant is insane pathOlogically, as TO
whether he is legally insane" or not His In
sanity may be perfectly demOnstrable from GER
tain physical symptoms that always accom-
pany insanity but whether at the time or MS
act he knew its nature and quality sufficiently
to comprehend fits criminal character is OBJ
viously except in case of acute dementia
raving madness or nearly complete imbecillty.
Mt best a matter OF opinion. Therefore 1t is
perfectly possible to have a number OF alien
lists all agreed that prisoner Is patholOgicaLy
insane, some appearing TO swear him legally
sane and some legally insane. Yet II they We're
called to speak frankly as medical men they
would all swear to the same symptoms of men
tai unsoundness. DR.. Hamilton writes;
If the experts in the Thaw case are to be
blamed # is largely because some of them
were placed in a false position by the lawyers
on both sides who endeavored to use just so
much of what the former knew as would seem
10 suit the point at issue
As If this absurd situation were not enough.
the experts are not really called to testify to
a prisoners sanity but 10 answer what Dr.
Hamilton calls "idiOtic hypothetical questions"
The defence presents q question about hypo-
thetical state of facts, embOdying its cOnstruc-
ton Of the evidence. with due stress on the ele-
ments sustaining its position. The prosecution
does the same thing. The doctors discuss not
reality. but two hypothesis, and in cases where
the indications of insanity in the evidence are
slight it might be possible, with the stress
placed right in the two hypOtheses, for one
and the same expert to answer sane TO one and
insane 10 the other
DR. Hamilton also pays his compliments TO
the commission in lunacy. This part Of the
IThawl trial" he says. was the most farcical
Of all" Anybody who followed the proceed
ings of the commission in the recent trial must
have been impressed by the solemn absurdlty
of determining a pathological fact according
TO the strict rules 81 legal evidence. When the
technicalitles Of the trial system are introduced
into the taking Of evidence regarding a mans
mental state, we really driven to wonder
where insanity begins and ends. What man
with a relative or friend whose mental con-
ditiOn Occasioned alarm would think for an
instant Of submitting the question Of his san
ity to gentlemen who knew nothing about pa
tholOgy and who went at the decision with
legal bubbles and technical rules of evidence?
We suppose the defence Of this procedure lies
also In the subtle distinctions about illegal In
sanity" But recourse from the cul de sac Of
expert contradictions to the bland inanity OF
lay determination is one OF the absurdities Of
criminal procedure demanding reform.
The person with friend or relative whose
sanity was in question would intrust the de-
termination to the ablest and most experienced
physicians whose services he could command,
and he would not ask them hypothetical Ques-
tlOns either. He would go about the determi-
nation like man of sense, and this is a thing
that seems impossible under our criminal pro
cedure. As for the experts themselves, we
are unwilling 70 regard them as mere hired ad
vOcates taking either side according to their
retainer; yet that is the posidOn-Owing TO the
absurdities Of the criminal procedure, and per
haps 10 their own willingness TO be Oversubtle
regarding legal insanity"-in which they are
unfortunately placed ia the public mind. Yet
these men teach mental pathology in our best
medical colleges, or they are the trusted heads
Of leading insane asylums For the sake Of
their own public regulations they should scruple
to testify as insanity experts in the present
state OF the law and practice.
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