1. To come to a decision on this double question, the jury might need to hear the facts stated which the physician has personally observed, and of which he is summoned to be a sworn witness. In such a situation all that is required of the Doctor is that he shall give a most faithful and intelligent account of the facts.
It would disgrace his standing in society if any fault could be found with his testimony; and, as a sworn witness, he is bound in conscience, like any other witness, to state the truth, the whole truth, and nothing but the truth. This is always the case when the purpose of the inquiry is the discovery of the sane or insane condition of a person’s mind. But if the inquiry concerns the performance of the guilty act, the commission of the crime, many States of the Union, as explained before, consider the Doctor’s professional secrets as privileged, just like those of the lawyer and the clergyman; i.e., the Doctor must not use against his patient any knowledge he has become possessed of while acting as his medical adviser.
2. When the physician appears before a court or commission as an expert, he is expected to give the views of the medical profession upon hypothetical cases resembling the one under examination, and the scientific reasons and authorities on which those views are advanced.
3. But here a considerable difficulty presents itself; it is so serious that, owing to it, the weight of the medical expert’s testimony with judge and jury is often much less than could reasonably be desired. The difficulty is to ascertain what really are the views of the medical profession on any given subject. Of course no individual Doctors can put themselves up as representing the convictions of the medical profession, nor can they always appeal to the unanimous agreement of their leading men. Leading physicians, unfortunately, are far from entertaining concordant views on many most vital questions. It is this want of agreement that has made the testimony of experts so powerless to sway the minds of judge and jury.
The medical profession has no organization through which it can pronounce judgment. In fact, many of its most conspicuous members have adopted principles at variance with the deepest convictions of mankind generally; such, for instance, are the followers of Darwin, Huxley, Maudsley, and similar agnostic and materialistic leaders of modern thought.
4. What still further diminishes the credit of medical experts is the fact that, both in civil and criminal trials, they are summoned either by the defence or by the prosecution, and are thus naturally selected, not on account of their thorough knowledge, but on account of their peculiar views known beforehand to the parties citing them. Thus their testimony is likely to be partial to either side, and is distrusted; at least it fails to command perfect confidence. The only way in which the prejudices thus created against the physician can be overcome is by his acquiring thorough knowledge of his specialty, and showing himself on all occasions to be as honorable and faithful as he is evidently experienced and intelligent.
5. The medical profession could be brought to be much more useful to society for the discovery of insanity if we could have here something like what exists in some parts of Germany. “The practice obtains there of requiring the medical faculty of each judicial district to appoint a special committee, to which questions of this kind are referred. This committee is examined directly by the court, and gives testimony somewhat in the same way, and with the same effect, as would a common-law court when reporting its judgment in a feigned issue from chancery, or as would assessors called upon under the canon law to state, in proceedings under the law, what is the secular law of the land on the pending question” (Wharton and Stillé, sec. 274).
The matter of introducing some such practice into this country has been agitated of late, and may by and by lead to beneficial results. Dr. Shrady has taken steps to promote this object by striving to have a law enacted by the New York legislature providing for the regulation of expert medical testimony in jury trials. According to his plan, once such a commission has been established, the court is to send the medical issue to these experts, just as it sends other issues to special juries to be decided. The regular petit jury will then decide only upon the facts constituting the crime.
This would do away with special pleas of insanity before a jury that knows little or nothing about the nature of the disease, and whose sympathies may readily be worked upon by shrewd lawyers to render a verdict of acquittal.
As things are now, the medical expert, summoned to testify in a case of contested sanity or insanity of mind, ought to rise above minor considerations, and promote the cause of justice, by giving all the valuable information that his profession enables him to acquire on the very difficult subject of mental unsoundness.