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the majority of mankind when similarly circumstanced in connection with like acts? But enough has already been said on this point here and elsewhere. Lawyers are not likely to be turned from their staunch position by all the illogical nonsense which is poured out of such vials of wrath as are to be found in the breasts of those medical experts who have suffered a severe cross-examination, in which their threadbare theories fell to rags, and their high reputations looked but as ill-founded as their decrepit definitions and washed-out distinctions.

2485. Object of this Chapter.-But we meant in this chapter to deal with the question as to the admissibility of the evidence of medical experts, and to give those gentlemen who appear in the witness-box certain little pieces of advice, which will probably share the fate of all advice, and not be taken.

2 486. The Weight attached to the Evidence of Skilled Witnesses.-The evidence of skilled witnesses has never met with much favor in courts of law, and it has been remarked that it is always the Judges who have been the least able lawyers who have been the most willing to admit evidence of opinion. In modern times, there has been a great reaction against authority. The right of private judgment has been claimed, and the worthlessness of the opinions of those who are not able to state facts upon which such opinions are founded, and the superfluousness of the opinion when once you have the facts has been thoroughly recognized. But Judges have long appreciated these facts in relation to evidence. The witnesses who came to speak to facts have been held in much esteem; those who came to speak to opinions, or to draw inferences from facts, have had but little credit in courts of law. Thus, we find Lord Campbell remarking: "Skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence." So in Am

See Taylor on Evidence, p. 73, § 50.

Tracy Peer, 10 Clark & Fin. 191. See also Gurney v. Langlands, 5 Barn. & A. 330.

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erica, Judge Davis expressed an opinion that "if there is any kind of testimony that is not only of no value, but even worse than that, it is that of medical experts. They may be able to state the diagnosis of a disease more learnedly; but upon the question whether it had, at a given time, reached such a stage that the subject of it was incapable of making a contract, or irresponsible for his acts, the opinions of his neighbors, if men of good common sense, would be worth more than that of all the experts in the country." other American Judge has spoken almost as strongly. seems to be but one opinion," he says, "as to the fact that this kind of testimony is extremely unsatisfactory. We are more and more confirmed in an opinion that the difficulty comes largely from the manner in which the witnesses are selected. If the State or the Courts do not esteem the matter of sufficient importance to justify the appointment of public officers, *** it is certain the parties must employ their own agents to do it; and it is perhaps almost equally certain that if it be done in this mode, it will produce two trained bands of witnesses in battle array against each other, since neither party is bound to produce, or will be likely to produce, those of their witnesses who will not confirm their views." And an able writer upon the law of evidence in our own country has observed that when witnesses come merely to give their opinion, "it is often quite surprising to see with what facility and to what extent these 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 warped by regarding the subject in one point of view, that even when conscien

Neal's case, cited 1 Redfield on Wills, ch. iii., 101, § 13. Mr. Redfield in another place remarks as to experts: Both in this country and in England they differ quite as widely in their inferences and opinions as do other witnesses. That has become so uniform a result with medical experts of late that they are beginning to be regarded much in the light of hired advocates, and their testimony nothing more than studied argument in favour of the side for which they are called. So uniformly has this proved true in our limited experience, that it would excite scarcely less surprise to find an expert called by one side testifying to any particular in favour of the other side, than to find the counsel upon either side arguing against their clients, and in favour of their antagonists."

* Redfield on Wills, ch. iii., § 13. See Gay v. Mut. Ins. Co., 2 Biglow's Life Ins. Cas. 14, 9 Blatchf. 142, per Woodruff, J.

tiously disposed, they are incapable of expressing a candid opinion.""

487. The Reason for this Caution in the Reception of Skilled Testimony.-It cannot be doubted by any one who has paid even a trifling attention to the subject that the caution with which the Courts have been in the habit of receiving this kind of evidence was well advised. Every thing that is objective is capable of confirmation. Thus a fact can, although it is sworn to by one person, be disproved by others; but opinion, in that it is subjective, is capable neither of confirmation nor of disproof. Can it be wondered, then, that individuals who are called upon to express their opinions are much less careful than those who come to speak to facts? This of itself takes away much from the value of such testimony. But, again, to judge of the value of an opinion one must be made aware of the real capacity of the individual who expresses it to form one. Not every medical practitioner, it will be admitted, is capable of forming a correct estimate of the value of certain diagnostic symptoms of an obscure brain disease. This again, then, introduces a large element of doubt and uncertainty, and shows how wise our courts of law have been in attaching very little weight to the evidence of skilled witnesses who expressed only opinion.

488. Medical Estimate of its Worth.-Medical men have, to do them justice, seen the advantage which would accrue to them if they could induce courts of law to accept their opinions as if they were facts, and a good deal of the vituperation about "frowning down psychological truth" is occasioned by the refusal of our judicial authorities to do anything of the sort. Thus Dr. Maudsley, who claims that medical men alone ought to be asked to decide whether insanity exists or does not exist, speaking of the experienced

Taylor on Evidence, p. 73, § 50. See also the charge of the Lord Justice Clerk in the case of The Lord Advocate v. Gibson, a very important case which was tried before the High Court of Justiciary on 23d December, 1844, 2 Broun, 332, at p. 358, where he puts the subject in its true light. See also The Lord Advocate r. Murray, 1 Irvine, 263; Morrison v. Maclean's Trustees, 24 Dunlop, 625, and 34 Jur. 311.

physician, says: "He may not always be able to impart to others an exact account of the steps by which he has reached his conclusions, unconscious acquisition and instinctive decision preceding conscious method and deliberate judgment, but his opinion may still be sound." May still be sound! And it is for this we are to deprive judge and jury of their functions and leave the determination of the guilt or innocence of every criminal in whose case there is a suspicion of insanity and in what case is there not such a suspicion?-to be determined by medical men who are only to be required to decide instinctively, to acquire the facts unconsciously, and who are not to be trammelled by the necessities which are incumbent upon all peddling human beings, of conscious method and deliberate judgment. There never was such a ridiculous attempt to revive the sway of authority, which would be the apotheosis of ignorance. For it is ignorance which wants to be believed without reason, it is ignorance which relies upon unconscious acquisition and instinctive decision. Knowledge is content to show the facts upon which it is founded: it can explain every step which brought it to its position of certitude, and can prove the deliberation of its judgment. No wonder courts of law have had a distaste for skilled witnesses, and especially for medical experts. But let us look at the law of the subject.

489. Testimony: its Objects considered.-The object of all evidence is to place the jury in the position of eye and ear witnesses of a certain event, or a certain series of events, and the theory of the law in so bringing the facts representatively before the jury is that they, as ordinary men, uninfluenced by favor or fear, by hatred or love, will be able to judge of the guilt or innocence of an individual if thus brought to view the act and the actor at the time the deed was done. No doubt, a person who saw a deed done might best say, first, who it was that did it, and, second, if it was done in anger or self-defence; but such an one might, and probably would, scarcely have that calmness and impartiality which would make a decision just and right, and the law, by saying we will call those who saw the deed before twelve unprejudiced men, and ask them to decide upon the question of

guilt or innocence, has, it seems to us, done well. But evidence is not always thus direct. Frequently acts are done when no eye or ear is near to see or hear what transpired. Thus, take the case of a murder. No one, say, saw it done, but some one saw a man near the place where the murder was committed. Another person saw the same man washing his hands in a roadside pool; another saw him burn a shirt; and a fourth recognized a knife which was found near the victim as one which had been in the possession of the man who was seen near the place, who was seen washing his hands, who was seen burning the shirt. All these persons speak to facts. They say what they saw, and it is for the jury to draw or not to draw the inference whether the man who is sworn to as having done these several acts was the person who committed the murder.

2490. Testimony of Experts.-But there are many cases in which the jury, simply from the statement of facts, would be unable to draw any correct inference-cases in which a correct inference depends upon a knowledge of certain facts which do not lie within the bounds of ordinary experience; and in such cases the law has allowed skilled witnesses to be called, with the intention, as it seems to us, of supplying the peculiar experience which the jury, as ordinary men, are supposed to lack.' Thus, suppose in the case of the finding of a dead body, that a little wound is observed upon the corpse, and further, suppose that some one, the accused, was seen to inflict this little wound, then the whole question as to the guilt or innocence of the accused will turn upon the consideration of the question as to whether the wound found caused death. People do die suddenly, and if an individual liable to heart disease died after a quarrel in which some one

See McFadden v. Murdock, 1 I. R., C. L. 211. The rule is that witnesses possessing peculiar skill may be examined when the question to be decided so far partakes of the character of a science or an art as to require a course of previous habit or study in order to obtain a competent knowledge of its nature. 1 Smith, L. C. 491, note to Carter v. Boehm, 3 Burr. 1905. Although an expert must have special knowledge, no rule can be laid down as to the extent or amount of such knowledge necessary to entitle a man to be considered an expert. Ardesco Oil Co. v. Gibson, 63 Pa. St. 146; State v. Wilcox, 57 Barb. (N. Y,) 604; Fairchild v. Bascomb, 35 Vt. 398.

Shelton v. State, 34 Texas, 662.

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