Misdirection to Ignore Medical Testimony

Mr. Justice Stephen then proceeded: “Now, let us see what the doctors say. Some say death was caused by arsenic, and others that it was not by arsenic—that he died of gastro-enteritis”; and he spoke of the medical evidence in a way which amounted to a direction to the jury that they were to treat it as tainted with subtle partisanship, and as evidence to which it was not necessary for them to attach serious importance. He, in fact, stated, and in so doing misdirected the jury, that though it was essential to a verdict unfavorable to the prisoner that he died of arsenic, that question was one which they, the jury, could come to their own opinion about, without taking into consideration the opinion of the medical experts, who had positively stated that arsenic was not the cause of death. In other words, he directed the jury that, as the medical experts could not agree that the cause of death was arsenical poisoning, it was for them to decide that question from their own “knowledge of human nature.”

On the second day of the summing-up the judge told the jury (and it is submitted that it contains gross misdirections): “You must consider the case as a mere medical case, in which you are to decide whether the man did or did not die of arsenic according to the medical evidence. You must not consider it as a mere chemical case, in which you decide whether the man died from arsenic which was discovered as the result of a chemical analysis. You must decide it as a great, high, and important case, involving in itself not only medical and chemical questions, but embodying in itself a most highly important moral question—and by that term, moral question, I do not mean a question of what is right and wrong in a moral point of view, but questions in which human nature enters and in which you must rely on your knowledge of human nature in determining the resolution you arrive at.

“You have, in the first place, to consider—far be it from me to exclude or try to get others to exclude from their own minds what I must feel myself vividly conscious of—the evidence in this matter. I think every human being in this case must feel vividly conscious of what you have to consider, but I had almost better say you ought not to consider, for fear you might consider it too much, the horrible nature of the inquiry in which you are engaged. I feel that it is a dreadful thing that you are deliberately considering whether you are to convict that woman of really as horribly dreadful a crime as ever any poor wretch who stood in the dock was accused of. If she is guilty—I am saying if my object is rather to heighten your feeling of the solemnity of the circumstances, and in no way to prevent you from feeling as you do feel, and as you ought to feel. I could say a good many other things about the awful nature of the charge, but I do not think it will be necessary to do any one thing. Your own hearts must tell you what it is for a person to go on administering poison to a helpless, sick man, upon whom she has already inflicted a dreadful injury—an injury fatal to married life; the person who could do such a thing as that must be destitute of the least trace of human feeling.” And further on: “We have to consider this not in an unfeeling spirit—far from it—but in the spirit of people resolved to solve by intellectual means an intellectual problem of great difficulty.”

HON. JOSEPH H. CHOATE,
American Ambassador at the Court of St. James, 1899—

Mr. Justice Stephen, in short, instead of putting to the jury for separate answers each of the following three questions:

1. Did this man die of arsenic?

2. Did Mrs. Maybrick administer that arsenic?

3. Did she do it feloniously?

invited them to return a verdict of “guilty” or “not guilty” upon a direction of law, wherein he told them that they were to decide it as an intellectual problem, on the question which, it is submitted, can be formulated thus:

“Might this man have died of arsenic notwithstanding the opinion of the medical experts that he did not die of arsenic?” And the jury answered “Yes.”

It is submitted that this was a gross misdirection.

It may be interesting and applicable to quote from a paper read by Sir Fitzjames Stephen himself at the Science Association in 1884: “It is not to be denied that, so long as great ignorance exists on matters of physical and medical science in all classes, physicians will occasionally have to submit to the mortification of seeing not only the jury, but the bar and bench itself, receive with scornful incredulity or with self-satisfied ignorance evidence which ought to be received with respect and attention.” How prophetic this was as exemplified by his own attitude in this trial need not be pointed out.