CHAPTER IX.

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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The Law and Medical Men · 第 9 / 15 章