PRESENCE OF WITNESSES IN COURT.

49

for the Crown is bound not to suppress any fact within his knowledge favorable to the prisoner; and, on the other hand, the counsel for the prisoner is bound not to bring to light facts within his knowledge unfavorable to the prisoner. The counsel for the Crown may not use arguments to prove the guilt of the prisoner which he does not himself believe to be just, and he is bound to warn the jury of objections which may diminish the weight of his arguments; in short, as far as regards the evidence which he brings forward, his speech should as much as possible resemble the summing-up of the judge. He should contend not for the success of his cause at all events, but for the full recognition by the judge and jury of that side of the truth which makes in favor of it. On the other hand, the counsel for the prisoner may use arguments which he does not believe to be just. It is the business of the jury, after hearing the judge, to say whether they are or are not just." The last remark shows what appears to be a serious defect in the administration of the criminal law. While in a case of misdemeanor a prisoner may be tried by a special jury, in a case of felony, involving an analysis of important questions of medical science in reference to murder or manslaughter, the trial takes place before a common and comparatively ignorant jury. Such a jury is hardly in a position to cope with an ingenious counsel, who has it in his power to misrepresent and distort medical facts and opinions in any manner that he pleases. The defences made are frequently such as no barrister would venture to place before a jury of educated men.

Another observation made by Stephen, J., more nearly concerns the medical witness:-"There are many obligations which affect each side equally. Neither is at liberty to attempt to browbeat, intimidate, or confuse a witness, although they may expose any real confusion which exists in his mind, or test, by the strictest cross-examination, the accuracy of his statements. Neither is at liberty wilfully to misunderstand a witness, or to misstate, in his address to the jury, the effect of what he has said, either by distortion or suppression. The neglect or observation of these and other rules of the same kind practically establishes a wide distinction, and one which is easily recognized, between those who exercise a noble profession and those who disgrace it."

Assuming that a medical witness is properly prepared for the discharge of his duties, and that the questions put to him are answered fairly and truly, according to his knowledge and experience, without exaggeration or concealment, he has no reason to fear any attempt at intimidation.

The normal barrister, as depicted by Stephen, J., is not at liberty, in his address to the jury, to misrepresent, either by distortion or suppression, the medical facts or opinions given in a case. According to our experience, however, misrepresentation is a not unfrequent practice, and one of which medical witnesses have very strong reason to complain. Whether such misstatements are wilful or not it may be difficult to determine, but their effect on a jury is well known to those who employ them, and they frequently escape the observation of the counsel on the other side, and even of the judge, unless he is well versed in medical subjects.

Intimidation is sometimes carried very far. On a trial for murder by poisoning, a respectable country practitioner, who had given his evidence for the Crown in a fair and proper manner, was thus addressed in crossexamination by counsel:-"On your oath, sir, and in the face of the whole profession, will you venture to persist in that statement?" etc. Α writer, in commenting upon this subject, says: "But the hardest and most unfair part of the system (of cross-examination) is when witnesses

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RULES FOR THE DELIVERY OF MEDICAL EVIDENCE.

have to bear a loud and insulting tone or gesture without remonstration or retaliation." At the trial of Kelly for the murder of Police-constable Talbot (Reg. v. Kelly, Dublin Commis. Court, Nov. 1871), Tuffnell, a surgeon of repute, and formerly professor of surgery, was summoned as a witness for the prosecution. Having deposed to the nature of the wounds, and that the deceased had died from the effects, he was subjected to the usual ordeal of a cross-examination, but in a somewhat unusual form. Counsel for the prisoner having begun by addressing him in a loud and offensive tone, he turned to the Chief Baron, and said, "My Lord, I am very excitable, and if this gentleman has a right to roar at me, I consider that I have a right to roar too." The court expressed a hope that it would not be necessary for him to roar, and intimated, after a short trial of vocal strength between the two opponents, that counsel's manner to the witness was not what it ought to be. Counsel disclaimed any intention of being offensive, but claimed the liberty which is usually conceded in cases of importance. Whatever may be the importance of a case to a prisoner, nothing can justify the putting of questions in a loud and insulting tone to a skilled professional witness. The very mild rebuke administered to counsel on this occasion was not likely to produce much effect, and accordingly this trial presents, in a concentrated form, all the defects of our method of getting at truth by cross-examination.

Rules for the delivery of Evidence.-There are a few rules bearing upon medical evidence which, if observed, may save the witness from interruption or reproof, and place him in a favorable position with the

court

1. The questions put on either side should receive direct answers, and the manner of the witness should not be perceptibly different, whether he is replying to a question put by the counsel for the prosecution or for the defence. Most of the questions put by counsel in cross-examination will admit of an answer "yes" or "no." If, from the ingenious or casuistical mode in which the question is framed, the witness should feel that the simple affirmative or negative might mislead the court, then, after giving the answer, he can appeal to the judge to allow him to qualify it, or add to it any matter within his own knowledge and which is at the same time relevant to the case. The witness must remember that he takes an oath to state the truth, the whole truth, and nothing but the truth. On the other hand, while the counsel for the defence is bound not to introduce falsehood, his object is not the discovery or development of truth. Unless the witness is on his guard, he may find that his affirmatives and negatives may be worked into a shape representing the reverse of what he intended.

Some counsel adopt the ingenious plan of compressing two or three questions into one; or they submit a series of questions, more than one of which may contain two opposite alternatives, and then ask for a plain answer "yes" or "no" to both of them together. A witness may unthinkingly answer that question which has most fixed his attention. The same answer may not be strictly applicable to all, but it may be found, when too late, that it is made so in the defence. Under these circumstances he should ask for a severance of the questions and give separate replies. Direct answers are necessary, because it is only by them that the case can be brought clearly before the court and jury in all its details. Medical witnesses sometimes forget this, and fall into answers to questions floating in their own minds, or which they think are likely to be put to them. They are also sometimes disposed to anticipate many questions by one general answer. This simply creates confusion, and the witness will

RULES FOR THE DELIVERY OF MEDICAL EVIDENCE.

51

be told by counsel to keep to the question, and that he is coming to the other matters presently. Care should be taken by a medical witness not to argue with counsel. Argument is not evidence, and the entering into it disturbs the order of the proceedings. Arguments between counsel and witnesses, and even between medical witnesses themselves, are not allowed. The mode in which questions are put by counsel in cross-examination sometimes tends to the introduction of argument, but the witness should avoid the temptation to enter into it. What he says under such circumstances is not evidence, except in the form of answers to questions, and he is there only for the purpose of stating what is relevant to the case.

2. The replies should be concise, distinct, and audible; and, except where explanation may be necessary, they should be confined strictly to the terms of the questions. The judge who tries the case generally takes full notes of the medical evidence-hence the necessity for a slow and distinct delivery of the evidence. Some witnesses have a habit of not answering the question which is asked, but one which is not asked. Others give an answer in such a voluble form that there is great difficulty in reducing it to its proper proportions. A witness who is so profuse of information generally supplies abundant matter for a long and troublesome cross-examination. It has been a question whether a witness should volunteer evidence, assuming that the examination-in-chief and cross-examination have failed to bring out all that he knows of the case. If that which he has to state is some matter of fact within his own knowledge, or an opinion based on facts within his knowledge, he will be allowed, on application to the judge, to make the statement in spite of the efforts of counsel on either side to shut it out.

It is scarcely necessary to observe, that the language in which the answers are returned should neither be technical nor metaphorical. Counsel who are unacquainted with medical terms frequently misapply them, or use them in a wrong sense. On a trial for murder, in which one of the questions at issue was whether dysentery or poison was the cause of death, the counsel puzzled one of the medical witnesses by asking him whether during his attendance he found any traces of "dysuria" in the feces. There is no doubt he intended a state of the feces like that met with in dysentery, but the professional term employed by him signified a "difficulty in passing urine." A judicious witness will avoid anything like a triumph over his examiner under such circumstances, and simply put him right.

3. Answers to questions should be neither ambiguous, undecided, nor evasive. An ambiguous answer necessarily leaves the witness's meaning doubtful, and calls for an explanation. An undecided answer is not sufficient for evidence. Did the wound cause death? Was death caused by loss of blood, or by poison? If, by a proper consideration of all the medical facts, the witness has come to a conclusion on the subject, his answer should be expressed in plain and decided language, either in the affirmative or negative. A man who has formed no conclusion is not in a position to give evidence. No opinion should be given for which the witness is not prepared to assign reasons, and, except by permission of the court, no medical opinion should be expressed on facts or circumstances observed by others. A hesitating witness will be met with the question, Have you any doubt about it? or, Was it so, or not?-to which a reply in the affirmative or negative must be given. If the witness fairly entertains doubts about the matter at issue, it is his duty to express them, and not allow them to be extorted from him piecemeal by a series of questions.

52 RULES FOR THE DELIVERY OF MEDICAL EVIDENCE.

Chemists have occasionally certified to the discovery of "imperceptible," "unmistakable," or "undoubted" traces of poison in the liver, etc. Such terms naturally convey to the shrewd mind of an examiner that the witness has some lurking doubt or suspicion of mistake in his mind, for that of which we are sure requires no such terms to express our meaning. If poison has been discovered, the statement of the fact is sufficient.

4. The replies should be made in simple language, free from technicalities and exaggeration. Some remarks have been elsewhere made in reference to the use of technical terms in drawing up medico-legal reports (p. 14). If medical men could be made aware of the ridicule which they thus bring on their evidence, otherwise good, they would at once try to dispense with such language. A witness is perhaps unconsciously led to speak as if he were addressing a medical assembly, instead of plain men like the members of a common jury, who are wholly ignorant of the meaning of medical terms, and barristers who are but imperfectly acquainted with them. A court may be told that the " integuments were reflected from the thorax, and the costal cartilages laid bare, when a wound was found which had penetrated through the anterior mediastinum," and had involved the arch of the aorta, etc. A simple cut in the skin is described as "an incision in the integuments." 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." On a trial for an assault, a surgeon, in giving his evidence, informed the court that on examining the prosecutor, he found him suffering from a severe contusion of the integuments under the left orbit, with great extravasation of blood and ecchymosis in the surrounding cellular tissue, which was in a tumefied state. There was also considerable abrasion of the cuticle. Judge: You mean, I suppose, that the man had a black eye? Witness: Yes. Judge: Then why not say so at once?" It would be easy to multiply examples of this kind. This is not science, but pedantry, and if such language is employed by a witness with a view to impressing the court with some idea of his learning, it wholly fails of its effect. Barristers and reporters put down their pens in despair, and the time of the court is wasted until the witness has condescended to translate his ideas into ordinary language. Lord Hatherley well observed that "a scientific witness in giving his evidence should avoid, as much as possible, the use of technical scientific language, if the case is before a jury. This is especially desirable when the evidence is medical, for really many technical words in medicine seem to be invented to cover ignorance. But be this as it may, a witness is always suspected of affectation, and the court and jury are but little instructed, when a vast amount of learned phraseology is poured forth instead of a clear statement of the witness's opinion."

Exaggerated language should be avoided. There is a tendency among some medical witnesses to express their own views in the superlative degree. If a part is simply inflamed, it is frequently described as "intensely" inflamed. This use of exaggerated language often leads to apparent conflict in medical testimony. It is not creditable to the witness, and throws a doubt upon the whole of his evidence.

5. In giving evidence of opinion a medical witness must take care not to base it on any statements made by others, or on circumstances which may have come to his knowledge by public rumor. Again, his evidence should be confined only to subjects properly within the range of medical science, and on which, as a professional man, he is competent to speak. In a trial for murder by wounding, in which the identity of the prisoner was in

RULES FOR THE DELIVERY OF MEDICAL EVIDENCE. 53

question, a medical man stated that he compared certain footmarks with the boots taken from the prisoner, and he found that they corresponded. A comparison had also been made, but not at the same time, by a police officer, more accustomed to matters of this kind. On cross-examination, there was such a want of agreement between the surgeon and the constable, respecting the number of nails in the boots and the number indicated by the footprints, that no reliance could be placed on this portion of the evidence. In reference to this discrepancy, the learned judge remarked that a medical man should confine himself to matters belonging to his own profession, and not take upon himself the duties of a police-constable. There are some points in reference to gunshot wounds which can be better explained by a gun or shot-manufacturer than by a medical witness. Cuique in suâ arte credendum.

Fees. The following information as to fees payable to medical witnesses may be useful to the medical practitioner :—

In the Supreme Court of Judicature and in the Court of Appeals, £1 18. a day if resident in the metropolis; and £2 2s. to £3 3s. a day if resident at a distance from the place of trial, inclusive of all except travelling expenses. For travelling expenses a sum not exceeding 3d. per mile each way if there be a railway, and 6d. per mile each way if there be no railway. It is customary to pay return first-class, or sometimes second-class, railway fare only. In the Divorce Court, 1 1s. a day if resident within five miles of the General Post-Office. Higher charges are allowed for experts Sundays are never counted. In the County Court, 10s. to £1 1s. a day is allowed. At Assizes, medical men attending to give professional evidence are usually allowed £1 1s. a day, 2s. for every night they are away from home, and second-class travelling expenses by rail, or a sum not exceeding 3d. a mile each way when there is no railway.

Every registered medical practitioner is entitled, if formally summoned, to a fee of £1 1s. for attending to give evidence at a coroner's inquest, where no post-mortem examination is ordered, and to an additional fee of £1 18.-£2 2s. in all-when an examination is ordered. The fee for a post-mortem examination will not be paid if the examination has not been ordered in writing. These fees are to be paid by the coroner immediately after the close of the inquest. There is no provision for a second attendance at an adjourned inquest, nor for making a second post-mortem examination. Some coroners are in the habit of paying £1 1s. for each day's attendance. Others pay £1 18. only for all the attendances, however many. No unregistered medical practitioner, whatever his diplomas may be, can claim fees for giving medical evidence. In all cases where attendance is required in a civil court to give expert evidence, a special agreement should be made in writing, binding the solicitor who requires the attendance to himself pay the fees, as these are only recoverable from principals, unless there is a special agreement to the contrary.

The fee for attendance in a Police Court is 10s. 6d., or £1 1s. if more than two miles distant.

[In the United States the fees of witnesses in civil actions are regulated by the statutes of each State. In New York in civil cases the fee of a witness is fifty cents per day and eight cents a mile, one way for each mile, from the place of his residence to the court-house where the trial is had, while in criminal cases no fee whatever is allowed.

To enable the medico-legal jurist, alienist and expert to understand the present state of the law regarding experts, and expert and opinion evidence, the American editor has given a carefully-prepared statement of the law