Should the Procurator-Fiscal consider it requisite to have a complete examination, he issues a warrant to that effect to the medical practitioner who has seen the case, and usually associates with him the most skilled practitioner available in the neighbourhood. The warrant consists of a petition by the Procurator-Fiscal, addressed to the local judge, setting forth the grounds of his application, and craving warrant to the inspectors named to make the necessary examination. This is signed by the Procurator-Fiscal, and countersigned by the Sheriff or local judge, if granted. The receivers of this warrant are empowered to take full custody of the body, and they should be careful to carry the warrant with them, or they may be refused admission pending its production, which may result in great waste of time, and end in a miscarriage of justice. The Procurator-Fiscal may supply to the medical inspectors portions of the precognitions likely to bear on the medical part of the inquiry. Medical men ought to be on their guard against performing dissections in cases evidently judicial without previously warning the proper law authorities, or without a warrant; for instances have occurred where, owing to the want of proper support, obstructions were thrown in the way which might have proved fatal to the value of the investigation; and, besides, the premature disclosure of the results of the inspection might frustrate other important steps of the precognition.
The medical men so engaged will, as a rule, find it to their interest to exclude all visitors, whether lay or professional, from the room during the dissection. The regulations issued by the Crown Office, Edinburgh, direct that no one should be allowed to be present at the examination out of mere curiosity, and recommend that any one not engaged in the inspection, but who is in attendance to give information, or for any other purpose, and who may afterwards become a witness, should remain in an adjoining room. The medical inspection often furnishes good tests of the value of other evidence in the case; therefore, it is desirable that the general witnesses should not have an opportunity of knowing what is observed in the dissection of the body. The notes of a case should be made at the time of inspection or immediately afterwards. In the case of post-mortem examinations it is better that while one inspector conducts the practical details of the examination, the other should take notes of its successive steps, indicating all the points inquired into, with the observations made, the appearances presented, negative as well as positive, stating simple facts alone, without either generalisations or opinions. These notes should be looked over by both inspectors before the body is sewn up, so that omissions in the notes, or in the inspection itself, may be then supplied.
Citation of Witnesses—Subpœna
In England, except upon a subpœna, a medical man is not bound to attend as a witness at a trial, and then it should be served a reasonable time before the trial, in order that he may make proper arrangements for the carrying on of his business during his absence. In civil cases his reasonable expenses should be tendered to him at the time the subpœna is served, or within a reasonable time of the trial; and he may refuse to give evidence unless his charges are paid, provided his objection be stated before he has been sworn. A witness may be summoned from any part of the United Kingdom.
The question has been raised, whether a scientific witness was bound to attend when subpœnaed. The law on the point is enveloped in some obscurity; the better course is therefore to attend.
No tender of fees is necessary in criminal cases, “except in the case of witnesses living in one distinct part of the United Kingdom being required to attend subpœnas directing their attendance in another, who are not liable to punishment for disobedience of the process, unless at the time of service a reasonable and sufficient sum of money, to defray their expenses in coming, attending, and returning, have been tendered to them.” When summoned to two cases, the one civil, the other criminal, the witness must attend the criminal; or when both cases are the same, the one to which he first received the subpœna—notifying, however, to the counsel engaged on the other case his unavoidable absence, and giving the reasons which prevent his attendance.
In Scotland, witnesses are summoned by a writ or citation, which must be delivered at the residence of the witness a reasonable time before the trial. Delivery to a member of the family, or a servant not within the house, will not do. If access cannot be gained, the copy is fastened to the most patent door of the house. If the witness do not appear, and it be clearly shown that he was duly cited, a warrant for his apprehension may be issued, and he becomes liable to be incarcerated till he finds “caution” for his due attendance at the trial. His non-attendance may also, unless good excuse be forthcoming, render him liable to a fine, or unlaw, of a hundred merks Scots—about £5.
Form of Subpœna in England.—Where a medical witness has given evidence in a case in which the accused person has been committed for trial to a superior Court, he is summoned to give evidence at such Court in the following terms:
L.S.