I. This subject belongs to a course of Medical Jurisprudence, because a
physician who treats patients for insanity is liable, from time to time,
to be cited before a court of law either as a witness or as an expert.
His conduct in such cases is to be guided by the principles of natural
and legal justice.
Various important cases at law turn upon the question of a person's
soundness of mind; and frequently the medical expert has it in his power
to furnish the court with more reliable information in this matter than
any one else. At one time, the validity of a last will may be contested,
and the possession of a fortune by one party or another may hinge on the
question whether the testator at the time of making his will was in
sufficient possession of his mental powers to perform an act of so much
consequence.
At another time, interested parties may plead for or against the
validity of a sale or other bargain made by a person of doubtful
competency of mind; or a life-insurance company may be interested in
ascertaining the mental condition of an applicant for membership; or it
may be questioned whether the payment of an insurance policy is due to
the family of a suicide, the doubt depending for solution on the sound
or unsound condition of his mind at the moment of the fatal act. Again,
there may be a real or pretended doubt whether a certain property-owner
is so far demented as to be unfit to manage his estate; or whether he
needs a guardian to take care of his person; or it may even seem
necessary to confine him in a lunatic asylum. There may be objections
raised to the mental soundness of a witness in a civil or a criminal
suit; or, finally, a criminal prosecution will depend mainly on the
sanity or insanity of the culprit at the moment when the crime was
committed; as was the case with a Prendergast and a Guiteau.
You see, then, gentlemen, that important interests are dependent on the
thorough and correct understanding of this matter; and therefore much
responsibility rests upon the experts consulted in such cases: property,
honor, liberty, nay, even life itself may be at stake.
That cases involving an insane condition of mind must be of frequent
occurrence, both in the medical and in the legal professions, is
apparent from the large and rapidly increasing amount of lunacy in our
modern civilization. Wharton and Stillé's "Medical Jurisprudence" states
(sec. 770, note) that in 1850 there was in Great Britain one lunatic to
about one thousand persons; only thirty years later the Lunacy
Commission of Great Britain reported one lunatic to 357 persons in
England and Wales, that is, nearly three times as many. In New York
there is one to 384 persons. It appears certain that its increase of
late is out of all proportion to the increase of population; and even
though I see reasons to distrust somewhat the figures quoted for
England, enough is known to create serious alarm regarding the fruits of
modern manners and customs on the minds of thousands. This fact makes
the matter of insanity very important for the medical and the legal
student.
II. Still it must be noted that the responsibility of deciding cases of
lunacy does not rest chiefly with the medical expert. In cases of
doubtful insanity the decision is to be given not by the Doctor but by
the court of justice. Except on very special occasions, as when a
physician is appointed on a committee or commission of inquiry, he
appears before a court either as an ordinary witness, stating what
facts have fallen under his personal observation; or as an expert,
explaining the received opinion of medical men with regard to cases of a
certain class. Even though he feels convinced that the culprit or the
patient is as mad as a March hare, the physician cannot expect that his
statement to that effect will be received as decisive. It is for the
judge to instruct the jury what kind or degree of insanity will excuse a
culprit from legal punishment, or will disqualify a person from
testifying as a witness, or from being a party to a civil contract in
certain cases; and it is for the jury to decide whether, in the case in
hand, the fact of such insanity exists or not. In criminal cases, the
jury pronounces on the double question, whether the accused did the act
charged to him, and whether he has been juridically proved to have been
accountable for the act under the laws as expounded by the judge.
1. To come to a decision on this double question, the jury might need to
hear the facts stated which the physician has personally observed, and
of which he is summoned to be a sworn witness. In such a situation all
that is required of the Doctor is that he shall give a most faithful
and intelligent account of the facts.
It would disgrace his standing in society if any fault could be found
with his testimony; and, as a sworn witness, he is bound in conscience,
like any other witness, to state the truth, the whole truth, and nothing
but the truth. This is always the case when the purpose of the inquiry
is the discovery of the sane or insane condition of a person's mind. But
if the inquiry concerns the performance of the guilty act, the
commission of the crime, many States of the Union, as explained before,
consider the Doctor's professional secrets as privileged, just like
those of the lawyer and the clergyman; i.e., the Doctor must not use
against his patient any knowledge he has become possessed of while
acting as his medical adviser.
2. When the physician appears before a court or commission as an expert,
he is expected to give the views of the medical profession upon
hypothetical cases resembling the one under examination, and the
scientific reasons and authorities on which those views are advanced.
3. But here a considerable difficulty presents itself; it is so serious
that, owing to it, the weight of the medical expert's testimony with
judge and jury is often much less than could reasonably be desired. The
difficulty is to ascertain what really are the views of the medical
profession on any given subject. Of course no individual Doctors can
put themselves up as representing the convictions of the medical
profession, nor can they always appeal to the unanimous agreement of
their leading men. Leading physicians, unfortunately, are far from
entertaining concordant views on many most vital questions. It is this
want of agreement that has made the testimony of experts so powerless to
sway the minds of judge and jury.
The medical profession has no organization through which it can
pronounce judgment. In fact, many of its most conspicuous members have
adopted principles at variance with the deepest convictions of mankind
generally; such, for instance, are the followers of Darwin, Huxley,
Maudsley, and similar agnostic and materialistic leaders of modern
thought.
4. What still further diminishes the credit of medical experts is the
fact that, both in civil and criminal trials, they are summoned either
by the defence or by the prosecution, and are thus naturally selected,
not on account of their thorough knowledge, but on account of their
peculiar views known beforehand to the parties citing them. Thus their
testimony is likely to be partial to either side, and is distrusted; at
least it fails to command perfect confidence. The only way in which the
prejudices thus created against the physician can be overcome is by his
acquiring thorough knowledge of his specialty, and showing himself on
all occasions to be as honorable and faithful as he is evidently
experienced and intelligent.
5. The medical profession could be brought to be much more useful to
society for the discovery of insanity if we could have here something
like what exists in some parts of Germany. "The practice obtains there
of requiring the medical faculty of each judicial district to appoint a
special committee, to which questions of this kind are referred. This
committee is examined directly by the court, and gives testimony
somewhat in the same way, and with the same effect, as would a
common-law court when reporting its judgment in a feigned issue from
chancery, or as would assessors called upon under the canon law to
state, in proceedings under the law, what is the secular law of the land
on the pending question" (Wharton and Stillé, sec. 274).
The matter of introducing some such practice into this country has been
agitated of late, and may by and by lead to beneficial results.
Dr. Shrady has taken steps to promote this object by striving to have a
law enacted by the New York legislature providing for the regulation of
expert medical testimony in jury trials. According to his plan, once
such a commission has been established, the court is to send the
medical issue to these experts, just as it sends other issues to special
juries to be decided. The regular petit jury will then decide only upon
the facts constituting the crime.
This would do away with special pleas of insanity before a jury that
knows little or nothing about the nature of the disease, and whose
sympathies may readily be worked upon by shrewd lawyers to render a
verdict of acquittal.
As things are now, the medical expert, summoned to testify in a case of
contested sanity or insanity of mind, ought to rise above minor
considerations, and promote the cause of justice, by giving all the
valuable information that his profession enables him to acquire on the
very difficult subject of mental unsoundness.