■■■■■■■■BBBBmBBBBIBi^BB^BBBHMBBI GIL -/<■ 're "A" TC "C a- -w The Relations of the Medical to the Legal Profession m-K^/osa sift the evidence that bears against bit client : ami if t lnr<- In- a flaw in it — if a fact has Keen stated 12 ADDRESS. inaccurately, a principle pushed too far, an opinion rashly- hazarded — the error must be exposed. How can this be done without rigid cross-examination? And why should a medical witness take offense at this ? Yet how common it is to hear medical men complain, as though a grievous insult had been offered them ! The lawyer, say they, tried to break down my evidence, tried to make me contradict myself. I believe he supposes I committed perjury. Now, all this is idle. He tried to break down your evidence ; did he ? — Of course ! Your evidence was fatal to his client. He tried to make you contradict yourself? — Certainly! your self-contradiction would be his victory. Does he suppose you are committing perjury? — Not at all ! He means by cross-examination to find out whether you have or not. If you have not, his cross-examination will do you good rather than harm. He is doing his duty in trying to break the force of your evidence ; and it is your duty to yourself, and to the cause of truth, to present such evidence that he cannot break down. But medical witnesses often fall into errors, not from fail- ing to appreciate the lawyer's position, but by utterly forget- ting their own. That position is one of absolute neutrality. We are, as a matter of convenience, subpoenaed by one party. Now, medical witnesses often seem to suppose that they are enlisted on that side, bound to tell all that can make in its favor, and nothing that can prejudice it. They consequently lend themselves very willingly to the leading of the one counsel, and strive to give him just the evidence he wants; while to the other party, they assume from the first an attitude unmistakably belligerent. The extent to which this spirit of partisanship pervades the profession, is absolutely wonderful. I met, the other day, with a most remarkable and even an amusing illustration of this. ADDRESS. 13 Consulting, for a different purpose, F. Winslow's Lectures on Insanity, I noticed that, in speaking of an error medical men may commit, he says, "The medical witness may thus in- jure the cause he is most anxious to serve ;" and a little further on, he speaks of "the party in whose favor we appear." Here is a teacher, and a very eminent teacher, of medical jurisprudence, seemingly ignorant of the first principles of all correct testifying. He speaks with the most edifying simplicity, of " the party in whose favor we appear," just as though the doctor were the hired advocate of one party, instead of being sworn to testify to the truth without fear, favor, or affection. Is it strange that when a lawyer finds a medical witness animated by this spirit, anxious (in the words of Dr. Winslow), •• most anxious to serve the party in whose favor he appears " lie should strive to break down such testimony? Is he to be blamed, if in so doing he is little regardful of the feelings of '.lie, who has shown himself so regardless of his own obliga- tions to truth and justice? .V.. one can doubt that this partisan spirit is abhorrent to ry principle of right. Never allow it to influence, in the slightest degree, your testimony. Hut it sometimes happens that witnesses are rendered partial, QOt by this foolish notion of being enlisted in the Bervice <>f one or the other party, but by their own sympa- thies They know, or what is much oftener the case they rhiirk they know, that all the right of the case is with one party, all the injustice with the other. Then comes the apprehension, that what they may say will prejudice the can-.' -.1' justice. A fellow-creature is on trial far life or liberty, of which we thins the law is about, unjustly to deprive him. The best and most kindly sympal hie.-, of OUT naluiv, are 14 ADDRESS. enlisted in his behalf, and we fear lest our testimony (though perfectly true) may do him harm. How difficult under such circumstances, to testify entirely without bias, especially when we speak to matters of opinion, perhaps to very nice shades of opinion ! Here a word, a look, a tone of the voice, may give to your testimony a false coloring. To avoid errors from this source, as well as from partisan feeling, the medical witness should cherish a spirit of indifference as to the effect of his testimony on the case. Let him never give the result a thought — it is a thing with which he has nothing to do. His duty is to tell the truth, the whole truth, and nothing but the truth ; what use the court may think proper to make of it, is a matter for which he is in no shape or way responsible. Here, as before, men often neglect their own duty in their anxiety that their neighbors should do theirs. Another element often gives onesidedness to medical testi- mony. Physicians commit themselves — early in a cause, per- haps even before the trial begins — to opinions which, when compelled on cross-examination to review, they find require modifications. ISTow, it is often very difficult to make these modifications, be they ever so necessary. The counsel on the one side having secured the evidence his case requires, is un- willing to admit any change that may injure its effect ; on the other side it is the business of counsel, and I repeat it again and again it is his duty, to compel you, if he can, to admit the inaccuracy of your first unguarded opinion,* and either to withdraw it altogether, or so to qualify it as that neither force nor sense remain in it. From all this it too often results, that between one lawyer, who wishes the opinion to stand absolutely unchanged, and the other, who will be content with nothing less than an ADDRESS. 15 essential modification of it, the opinion is torn to pieces ; lucky if the doctor's reputation for intelligence, or even for integrity, does not share the same fate. When all is over, our unlucky brother will weary all his friends with complaints of the unfairness of the lawyers ; when the whole difficulty arose naturally, and indeed necessarily, from his own rashness in advancing an opinion which deliberate consideration would have shown him was untenable. To avoid all this, never give an opinion on a subject which you have not deliberately considered ; and if asked for one decline to give it, and state plainly and frankly the reason. Say you have no opinion, as it is a matter you have not studied. But here we come upon a very fruitful source of blunder- ing, if nothing worse, in medical evidence : I mean profes- sional pride, or rather professional vanity. Some of the brethren are very unwilling to admit, that there is anything connected with the profession of which they are ignorant. They may not claim, in so many words, that their knowl- edge has no limit ; but they are very unwilling to allow any one to fix this limit. The little words, "I do not know" are of all the words in the language, the most difficult to get out of their mouths. Now, this foible, when displayed in ordinary talk, or in the debates of learned academies (where it is very apt to figure largely), is only ridiculous; but when paraded on the witness- stand, tin- result is very different. To the standers-by it is a rich treat, to watch "in: <>f these learned pundits as he shifts and turns, doubles ami winds — now here, now there — in every path hut the straight one; the lawyer all the while following him up with the -cent of u well-trained fox-hound, — enjoying the chase and rare to be " in at, the death." This, a- ! have said, ie rare sport to the by-standers; for, as 16 ADDRESS. Rochefoucauld says, "There is something in the misfor- tunes of our best friends which is not disagreeable to us." To the poor hunted animal of a witness, it is rather annoying. How much better it would have been, to avoid all this by saying at once, I do not know, instead of having your ignorant pretensions made matter of proof, and commented on to a sneering multitude ! Here, as ever, honesty is the best policy; and the honest, the honorable course plainly is, — if you do not know, to say so at once. I have thus, Gentlemen, dwelt on some of the errors which make the giving of medical testimony disagreeable to the witness, and unsatisfactory to the court. This I have done without any reference to the subject-matter of the testimony. There is, however, one subject on which we are often required to give testimony, which is so beset with difficulties, that a more special attention to it seems proper. I refer to Insanity. The medico-legal investigations connected with unsound- ness of mind are equally important and difficult : they often touch the liberty and sometimes the life of a fellow creature ; and some of the questions involved are so exceedingly obscure, as to task the strongest intellects, and often to task them in vain. The innate difficulties of the subject are unfortunately aggravated in a ten-fold degree, by the very unsatisfactory state of the law, and the strange unwillingness which many of its disciples show to make it keep pace with the advance of general science. There is in this respect, a wide difference between law and medicine. The spirit of the law is conservative — it looks to precedents and authorities — it is the very reverse of progressive. ADDRESS. 17 It is the boast of the cultivators of medicine, that their science is eminently progressive, and authorities have little controlling influence over us. On no subject is this differ- ence between the two professions more marked, than on insanity. Speak to a lawyer of insanity, he will quote Sir Mathew Hale and Lord Coke as his unerring guides ; he neither knows, nor cares to know, more than was thought by these lights of the bar. Speak to a doctor — will he quote authorities 200 years old ? We should certainly think the man himself mad if he did. It is surely no matter for wonder that men should differ, when they look at a subject from stand- points two centuries apart. To some of these points of differ- ence, I will now call your attention ; and First, as to the competency of medical witnesses in cases of insanity. By a strange inconsistency though medical men are constantly called to speak as experts oii insanity ; yet no sooner is their evidence obtained, than the lawyer to whose case it chances to be unfavorable, is sure to deny that a doctor is any authority on the subject; and he will often find Btipport from the bench. Lord Denman, for example, says, "As to moral insanity, I cannot admit that medical men have at all more means of forming an opinion in such cases, than are possessed by gentlemen accustomed to the affairs of life, and bringing to the subject a wide experience." This question of the competence of medical witnesses has been widely dis- cussed, and the arguments pro and con variously stated, by Kant. ELoffbauer, Regnauld, and many other writers on medical jurisprudence. to me, that the Solution <( it must depend on tin 1 we take of the essential nature^of insanity, as a disease of tin: body or of the mind. IT it is a disease of the body, then: can be little doubt thai it ma !>'■ mosl correctly judged 2 18 ADDRESS. of by those who are familiar by their daily avocations and studies with such diseases. If, on the contrary, it is a disease of the mind, the investi- gation of it properly belongs to those who study the mind, — the metaphysicians. Let us look a little closely at this matter. We all speak familiarly of diseased mind. Did you ever ask yourselves the question, Can the mind he diseased f Is the immaterial, the immortal part of man, subject to disease ? Disorder and decay can very properly be predicated, a priori, of the body ; its destiny is death ; it lives but to die ; disease is the pathway by which it reaches that goal of its existence — the Grave. But how can that subtle mental essence, which has neither members nor parts, be disordered ? How can the immortal principle within us decay ? It cannot be. Disease, disorder, decay, all belong to the body, and to the body only ; and consequently we must place the essential seat of insanity in the body not the mind. I know that it is objected to this theory of insanity, that in many cases we can detect no lesion in the brain of the madman. This is true ; but is it less true, that in very many cases we can trace insanity directly to diseases or injuries of the brain? And when we cannot do so, shall we say that structural change does not exist, because we cannot detect it ? Who doubts that neuralgia depends on lesion of the nerves. Yet the scalpel, however well guided, the microscope however powerful, cannot always make the lesion palpable to our senses. If, then, insanity be a disease of the brain, the right of a medical man to speak authoritatively as to its existence, is beyond cavil. But though we thus insist on our right to speak as to the ADDRESS. 19 existence of insanity because it is a bodily disease ; yet we must uot forget that it manifests itself chiefly by mental phenom- ena, is often produced by mental causes and cured by moral means ; so that he who has not studied mind in its normal state, when its manifestations are not interfered with by disorder of its material organ the brain, cannot speak on insanity without the certainty of blundering. You all know how futile is the attempt, to study the pathology of the body when ignorant of its physiology. How can we expect to succeed with the far more obscure subject of mental disease? The study of metaphysics is, then, essential to the acquisi- tion of any accurate knowledge of insanity. But metaphysics alone will not suffice ; you must study the influence of mind on matter as well as that of matter on mind ; in the former you have the therapeutics of insanity — in the latter its etiology. Study, then, mental phenomena in health as well as disease. Thus prepared, you may go to the examination of an indi- vidual case of insanity, with good hope of success; and if your examination be patient and thorough, you may present the result- of it to a court, with a reasonable certainty of doing yourself credit and promoting the cause of justice. The first difficulty you encounter is with the definition of insanity. This is frequently asked for by the lawyers "per ambages," to use one of their own phrases. The prudent course is to decline, saying to the court that it is impossible r<. comprehend all the phenomena of insanity within the limits of a definition. If, however, you desire to give one, he -urc that it is the resull of careful and patient previous thought. If yon are quite sure thai you can recollect a definition which satisfied your mind, in your study, you may give it ; 20 ADDRESS. but rely upon it, if you try to extemporize a definition it will be a bad one. The best I have been able to make, is this : " Insanity is a disease of the brain by which the freedom of the will is impaired." I suppose, some of my legal friends will say that the chief merit of this definition of mine is, it leaves so many loopholes for the medical witness to creep out of; to tell the truth, I do not myself think that its worst point. The definition of insanity being disposed of, the next question is, What is the mental condition of the party whose case is before you? To this you may reply in general terms, He is insane, should that be your opinion. Or you may state particularly, He is a lunatic, a monomaniac, or the like. I think it is best to use in the first instance the general terms, He is insane, and go into particulars only when required to do so. Even then, be sure to go no farther than the question leads ; and above all avoid the use of technical terms. Their needless use (one of the vices of our profession, by the by) is always in bad taste, and in cross-examination it is sure to provoke court, counsel, and jury. ISTo man likes to be addressed in terms he does not understand ; it shocks his self-love, and you have at once his vanity up in arms against you. Technical terms are never necessary to those who understand themselves ; the use of hard words is the refuge of the muddy headed : he who sees clearly will generally define accurately. Having given your opinions (always without needless de- tail and in the simplest words possible) you will of course be asked for your reasons. You think this man insane — Why % Here we come to a point where law and medicine diverge widely. The law demands a standard of sanity, or some single test of easy application. It seeks to draw a well-defined line, all above which is sanity, all below insanity. Medicine ignores ADDRESS. 21 all this, and refuses to compare every man's mind with any arbitrary standard. As to tests of insanity, the law has for ages had one ; medicine has none. Experience has taught us that in this matter, the establishing of standards and the appli- cation of tests is altogether futile. The true idea of all the forms of insanity, except congen- ital idiocv. is set forth in the term mental alienation, mental change. This man is insane, not because he differs from another, not because he falls below any arbitrary standard, or responds to a certain test, but because he differs from himself, and has by force of disease fallen below the standard of his own better self. Here is the true theory of insanity, — "moral or intellectual change, dependent on disease of the brain. 1 ' I have already said that the law has had for ages one favorite test f»r Insanity. It is at least two hundred years old, and consists in "the knowing right from wrong." It is a very striking illustration -of the non-progressive character of the law, that the twelve judges of England, when applied to by the Eonse of Lords on this subject, in 1851, did not advance one step beyond this old test, but declared "a person was punishable if lie 'knew, at the time of committing the crime, that he was acting contrary to the lav of the land; 1 '' and again, they say, ••To establish a defence on the ground of insanity, it must' be proved that the party