EXPERTS IN INSANITY CASES.
The opinion evidence of medical men in questions of insanity is not,
as a rule, looked upon with any very great degree of favor by the
courts who have to decide upon the competency, relevancy and weight
of the opinions uttered. Chapman, C.J., of Massachusetts, in charging
a jury said, “While they afford great aid in determining facts,
it often happens that experts can be found to testify to anything
however absurd” [313]. In another insanity case another Judge remarked,
“Experience has shown that opposite opinions of persons professing to
be experts may be obtained to any amount, and it often occurs that
not only many days but many weeks are consumed in cross-examinations
to test the skill and knowledge of such witnesses, and to test the
correctness of their opinions,” (this was the case to a great degree
in the well known Guiteau prosecution,) “thus wasting time and
wearying the patience of both Court and jury, perplexing, instead
of elucidating, the question involved in the issue” [314]. As to the
perplexing instead of elucidating, a writer of the highest authority
gives the following, “In a case of alleged child murder a medical
witness, being asked for a plain opinion of the cause of death, said,
that it was owing to ‘atelectasis and a general engorgement of the
pulmonary tissue’.” And in a trial for an assault a |122| surgeon,
in giving his evidence, informed the Court “that on examining the
prosecutor, he found him suffering from a severe contusion of the
integument under the left orbit, with great extravasation of blood and
ecchymosis in the surrounding cellular tissue, which was in a tumefied
state, and there was also considerable abrasion of the cuticle.” The
Judge said, “You mean, I suppose, that the man had a bad black eye.”
“Yes.” “Then why not say so at once” [315].
Redfield, C.J., in his book on Wills, says, “Experience has shown both
here and in England that medical experts differ quite as widely in
their inferences and opinions as do other witnesses. This has become
so uniform a result with the medical experts of late that they are
beginning to be regarded much in the light of hired advocates, and
their testimony as nothing more than a studied argument in favor of
the side for which they have been called. So uniformly has this been
proved in our experience that it would excite scarcely less surprise to
find an expert called on 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” [316].
A Lord Chancellor once remarked that his experience taught him that
there were very few cases of insanity in which any good came from the
examination of medical men. Their evidence sometimes adorned a case,
and gave rise to very agreeable and interesting scientific discussions,
but after all they have little or no weight with the jury. And Mr.
Justice Davis, of the Supreme Court of Maine, after stating that he
thought juries far more trust-worthy than experts on the subject of
insanity, said, “if there is any kind of testimony that is not only of
no value but |123| even worse than that, it is in my judgment that of
medical experts. They may be able to state the diagnosis of the 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 opinion of his neighbors,
if men of good common sense, would be worth more than that of all the
experts in the country” [317]. There is scarcely a single hypothesis
as to responsibility (on the part of the insane), no matter how wild,
which, among the large number of experts who have concerned themselves
with this branch of study, has not its advocates. So says Wharton
in his valuable treatise on Mental Unsoundness [318]; or as Cicero
elegantly put it long ago, “_nihil tam absurde dici potest, quod non
dicatur ab aliquo philosophorum_” [319].
Considering these things, one is not surprised at Campbell, C.J., in
the Bambridge case, saying to three medical men who had recorded their
opinions in favor of the insanity of the testator: “You may go home to
your patients, and I wish you may be more usefully employed there, than
you have been here;” and to the jury he remarked, “We have had during
the trial the evidence of three medical witnesses, and I think they
might as well have stayed at home and attended to their patients.”
On the other hand, Shaw, C.J., said, “such opinions (as to sanity,
etc.) when they come from persons of experience, and in whose
correctness and sobriety of judgment just confidence can be had, are
of great weight, and deserve the respectful consideration of a jury.
But the opinion of a medical man of small experience, or of one who
has crude and visionary notions, or who has some favorite theory to
|124| support is entitled to very little consideration. The value of
such testimony will depend mainly upon the experience, fidelity and
impartiality of the witness who gives it” [320]. And Chief Justice
Gibson speaks with just emphasis of the the deference due, in their
own department, to the knowledge obtained by men of a subject with
which they have grappled all their lives [321]. The Supreme Court of
Texas declared, “The opinions of medical men (on questions of insanity)
are received with great respect and consideration, and properly so.”
The Supreme Court of Pennsylvania says, “It is well settled that
the knowledge and experience of medical experts is of great value
in questions of insanity.” Equally strong are the utterances of the
Court of Appeals of West Virginia and the Supreme Court of North
Carolina [322].
Where the point in question is the sanity of a person, the opinion
of a medical man on the subject is, of course, admissible when that
opinion is drawn from personal observation. This is the rule both in
England and the United States [323]. But a medical man may also give his
opinion on this subject, even though he has no knowledge of the person
whose sanity is in question [324]. It has been suggested, that when a
physician is asked his opinion on the facts stated by other witnesses,
he should be first examined as to the particular symptoms of insanity;
and as to whether all or any, and which of the circumstances spoken
of by the witnesses upon the trial are to be regarded as |125| such
symptoms; then inquire of him whether any and what combination of these
circumstances would, in his opinion, amount to proof of insanity [325].
It has been held to be improper to ask a medical witness whether the
person, whose sanity was in question, possessed sufficient capacity
to make a will, or to transact business, as these are matters of law,
depending on the nature of the business [326]. In England such witnesses
can only speak as to the state of mind, not as to the responsibility
of a prisoner; this latter point is for the jury under the direction
of the Judge [327]. So, on the plea of insanity at the time of making a
contract, the opinion of the medical man who gave the certificate on
which the defendant was confined as insane at or about the time, is
only evidence for the jury, who must judge of the grounds upon which it
was formed [328].
In England, an expert cannot be asked, after being present at the whole
trial, whether the defendant was insane, or whether the act complained
of was an insane act, because these are questions for the jury and
the witness must not be placed in the jury’s place; but he may be
asked whether such and such appearances, proved by other witnesses,
are in his judgment symptoms of insanity [329]. The particular facts
proven by other witnesses may be taken and the expert may be asked
“assuming these facts to be true, do they in your judgment indicate
insanity on the part of the defendant at the time the alleged act was
committed?” [330]. |126|
As a rule the Court should not allow an expert to give his opinion
upon facts proved by a witness unless he has heard all the testimony
of the witness, because the entire testimony may be necessary in order
to enable him to form an opinion in regard to the subject matter of
inquiry [331].
Where the facts are disputed, experts can only be questioned as to
their opinion of a party’s sanity on a hypothetical case, or as to
certain designated facts existing in the case supposing them to be
true [332].
The mode in which this hypothetical question is to be put has been much
considered. In England, in the celebrated _Macnaghten_ case in answer
to an inquiry of the House of Lords, whether “a medical man conversant
with the disease of insanity, who never saw the prisoner previously
to the trial, but who was present during the whole trial and the
examination of the witnesses, can be asked his opinion as to the state
of the prisoner’s mind at the time of the commission of the alleged
crime; or his opinion whether the prisoner was conscious at the time
of doing the act, that he was acting contrary to the law; or whether
he was labouring under any and what delusion at the time?” The twelve
judges replied, “We think the medical man, under the circumstances
supposed, cannot in strictness be asked his opinion in the terms above
stated, because each of these questions involves the determination
of the facts deposed to, which it is for the jury to decide, and the
questions are not mere questions upon a matter of science in which
case such evidence is admissible. But where the facts are admitted or
not disputed, and the question becomes substantially one of science
only, it may be convenient to |127| allow the question to be put in
that general form, though the same cannot be insisted on as a matter of
right [333].”
In Massachusetts, Chief Justice Shaw said, “The proper question to be
put to the professional witness is this—If the symptoms and indications
testified to by the other witnesses are proved and if the jury are
satisfied of the truth of them, whether in their opinion the party was
insane, and what was the nature and character of that insanity; what
state of mind did they indicate; and what they would expect would be
the conduct of such person in any supposed circumstances?” [334].
In another well known case, the Judge said to the jury, “It is not the
province of the expert to draw inferences of facts from the evidence,
but simply to declare his opinion on a known, or hypothetical state
of facts, and therefore the counsel on each side have put to the
physicians such states of fact as they deem warranted by the evidence,
and have taken their opinions thereon. If you consider any of these
states of facts put to the medical witnesses are proved, then the
opinions thereon are admissible evidence, to be weighed by you,
otherwise their opinions are not applicable to the case” [335].
The opinions of both experts and non-experts should have weight
according to their opportunities and qualifications for examination of
the state of mind of the person whose sanity is in question. First of
all will be the family, or the physician who has attended the patient
through the disease which is supposed to have disabled his mind; next
are those who, without special learning on the subject, have had the
best opportunities for judging—the members of his family and those
whose intimacy in the family, have given them opportunities of seeing
the patient at all times and |128| noticing the alienation of his
mind; and last, come those who only occasionally and at intervals have
seen him, and whose chances of studying his moods have been small [336].
It has been held, in Massachusetts, that a physician who had not made
insanity a special subject, and who, when consulted in such matters,
always called in a specialist, is not competent to give an opinion on
an hypothetical case put to him, unless he was the person’s attending
physician; then his opinion is received, as it is his duty to make
himself acquainted with the peculiarities, bodily and mental, of a
person who is the subject of his care and advice [337]. And where a
physician had for more than thirty years been exclusively treating the
insane, he was not permitted to testify, as an expert, to the mental
capacity of a person—not previously insane—who was in the last stages
of disease [338].
One not an expert may give an opinion, founded on observation, as to
whether a person is sane or insane, notwithstanding the general rule,
that persons not medical men cannot give their opinions as to the
existence, nature or extent of disease in any one. The exception was
first introduced in regard to the subscribing witnesses to a will, who
were permitted to speak as to the testator’s state of mind; it has
now been extended to all cases where the witness’ acquaintance with
the party whose sanity is in dispute, or his means of observation,
are sufficient to enable him to express his opinion as to the mental
condition. The Courts of Massachusetts, Maine, New Hampshire and
Texas, however, still adhere to the old rule and admit the evidence of
non-experts only in cases of wills [339].
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