The Law and Medical Men

by R. Vashon Rogers

In Iowa and Wisconsin such books have been allowed to be read, the Court in one case remarking, “The opinion of an author, as contained in his works, we regard as better evidence than the mere statement of those opinions by a witness, who testifies as to his recollection of them from former reading. Is not the latter secondary to the former? On the whole, we think it the safest rule to admit standard medical books as evidence of their opinions upon questions of medical skill or practice involved in the treatment.” In Wisconsin, however, the court seems now to have overruled its earlier decisions, and to have sided with the majority ([247]).

In Illinois, a witness may, to test his knowledge, be cross-examined as to his reading of particular authors upon the subject, and as to whether reputable writers do not entertain certain views upon the subject. Paragraphs from standard authors, treating of the disease in question, may be read to the witness, and he may be asked if he agrees therewith, as one of the means of testing his knowledge; but care should be taken by the court to confine such cross-examination within reasonable limits, and to see that the quotations read are fairly selected so as to present the author’s views. Mr. Rogers questions the wisdom of this decision ([248]). The witness, however, cannot read from a scientific work in his examination in chief, though he be an expert and agree with the views expressed by the author ([249]). Nor can a passage from a book be got before a jury as evidence in an indirect manner, when it cannot be read to them. So it was decided where a medical man was asked if he was acquainted with a certain book; he replied, that he had heard of it, but had not read it. He was then asked |101| whether it was considered good authority, and he said it was. He was then asked to read a certain paragraph; this he did, and was re-called. Counsel then read from the book the same paragraph and asked if such a case as that stated was reported. Held to be error ([250]). And in Ontario it has been held improper to ask medical witnesses, on cross-examination, what books they consider best upon the subject in question, and then to read such books to the jury; but they may be asked whether such books have influenced their opinion ([251]).

Although, as a rule, scientific books cannot be read to a jury as evidence, they may be read to discredit the testimony of experts, who claim to be familiar with them and refer to them as authority. Where one borrows credit for his accuracy, by referring to books treating of the subject, and by implying that he echoes the standard authorities, the book may be resorted to, to disprove the statement of the witness, and to enable the jury to see that the book does not contain what he says it does, and thus to disparage the witness, and hinder the jury from being imposed upon by a false light ([252]). It has been held again and again that scientific books cannot be read by counsel to the jury as a part of their argument. Shaw, C.J., of Massachusetts, says, “Facts or opinions cannot be laid before the jury, except by the testimony under oath of persons skilled in such matters.” Again, “where books are thus offered (i. e., to be read in argument), they are, in effect, used as evidence, and the substantial objection is, that they are statements wanting the sanction of an oath; and the statement thus proposed is made by one not present, and not liable to cross-examination. If the same author were cross-examined, and |102| called to state the grounds of his opinions, he might, himself, alter or modify it, and it would be tested by a comparison with the opinions of others. Medical authors, like writers in other departments of science, have their various and conflicting theories, and often defend and sustain them with ingenuity. But as the whole range of medical literature is not open to persons of common experience, a passage may be found in one book favorable to a particular opinion, when, perhaps, the same opinion may have been vigorously contested, and, perhaps, triumphantly overthrown, by other medical authors, but authors whose works would not be likely to be known to counsel or client, or to Court or jury. Besides, medical science has its own nomenclature, its technical terms and words of art, and also common words used in a peculiar manner, distinct from the received meaning in the general use of the language. From these and other causes, persons not versed in medical literature, though having a good knowledge of the general use of the English language, would be in danger, without an interpreter, of misapprehending the true meaning of the author. Whereas a medical witness could not only give the fact of his opinion, and the grounds on which it is formed, with the sanction of his oath, but would also state and explain it in language intelligible to men of common experience. If it be said that no books should be read, except works of good and established authority, the difficulty at once arises as to the question, what constitutes “good authority?” ([253]).

In an English case, counsel, in addressing the jury, attempted to quote from a work on surgery; Alderson, B., would not allow him, saying, “You surely cannot contend that you may give the book in evidence, and if not, what right have you to quote from it in your address, and do that indirectly which you would not be permitted to do in |103| the ordinary course?” In Massachusetts, North Carolina, Michigan, California and New York, similar decisions have been given ([254]); and in giving the dissenting opinion in State and Hoyt ([255]), Loomis, J., said, “Books may be crazy as well as men, and all sorts of theories relative to responsibility for crime are advocated in books. Courts do not take judicial notice of standard medical or scientific works, and the standard works of to-day may not long continue such, owing to new discoveries and advancing knowledge.” In this case the question was as to reading medical books on insanity on trials where the question of insanity arose; the book was Ray’s “Medical Jurisprudence of Insanity.” In a still later case ([256]), it was held to have been error for the attorney, on the argument, to read to the jury extracts from Browne’s “Medical Jurisprudence of Insanity.” The Court said, that it is peculiarly important that a defendant charged with a crime should be confronted by the expert witnesses against him, and that they should be cross-examined in his presence. But when the opinions of a writer are permitted to go to the jury, the writer is not sworn or cross-examined. If held admissible the question (of insanity) may be tried, not by the testimony, but upon excerpts from works presenting partial views of variant and perhaps contradictory theories ([257]).

In Connecticut, however, in a murder case the Court (Loomis, J., and Park, C.J., out of the five Judges dissenting,) held, that standard medical works on insanity might be read to the jury by the counsel for the accused, when |104| discussing the question of his insanity. It was said that “in this jurisdiction (that of Connecticut) for a long series of years counsel have been permitted to read to the jury, as a part of their argument upon this part of their case, extracts from such treatises as by the testimony of experts have been accepted by the profession as authority upon that subject, such treatises as have helped to form the opinion expressed by the expert. The practice by repetition has hardened into a rule” ([258]). In Indiana, it was held that if the extracts were merely argumentative and contained no opinions that could be regarded as properly matters of evidence, they might be admitted, subject to the instructions of the Court as to the law of the case and under the warning that they were not evidence. In Texas and in Delaware, similar decisions have been given ([259]). And in Ohio, where, at the trial of a cause, counsel was forbidden to read to the jury Youatt’s work on Veterinary Surgery, the Court, on appeal, said, “It is not to be denied, but that a pertinent quotation or extract from a work on science or art, as well as from a classical, historical, or other publication, may, by way of argument or illustration, be not only admissible, but sometimes highly proper, and it would seem to make no difference whether it was repeated by counsel from recollection or read from a book. It would be an abuse of this privilege, however, to make it the pretence of getting improper matter before the jury as evidence in the cause.” As it did not appear that the proposed quotation was relevant or came within the appropriate and legitimate scope of the argument, or that the party was injured by its exclusion, the Court would not reverse on this ground ([260]). Where the reading is allowed, it seems to be considered “a valuable privilege, yet so susceptible of abuse, that the |105| extent and manner of its exercise must be entrusted in a great measure to the sound discretion of the Court;”—“not a practice ever sanctioned directly or indirectly by the Court, nor one which has generally been considered by the Judges as of binding force in law, but rather as subject to the discretion which, it is true, has been usually exercised in favor of the accused in capital trials” ([261]).

Where the exclusion rule obtains, counsel in addressing the jury has no right to quote the opinions of medical men as given in their works; if they do, it is the duty of the Court to instruct the jury that such books are not in evidence but theories simply of medical men ([262]). But there is no question that, under all circumstances, books of science may be read in argument to the Court.

Medical men are often called to give evidence as to dying declarations where there is a charge of homicide, and where the cause of the death of the declarant is the subject of the declaration. They should remember that the declaration will not be admissible unless the deceased was conscious of approaching death and made it under a sense of his impending doom; any hope of recovery, however slight, renders the declaration inadmissible; and the question turns rather upon the expectation of death at the time of making the declaration than upon the interval between it and the death ([263]).

An entry made by a medical man, in the course of his profession, is admissible in evidence after his death, if it be against his interest; and such an entry will be received as evidence of collateral and independent matter, etc. When |106| the question was as to the age of a child, the book of the accoucheur who attended the mother was produced; it contained an entry as follows, “W. Fowden, Jun.’s, wife; Filius circa hor. 3 post merid. nat. etc. W. Fowden, 1768, April 22. Filius natus wife, £1 6s. 1d.; Pd. 25 Oct. 1768.” The word “Paid” was against the pecuniary interest of the accoucheur, so the entry was admitted to prove the date of the birth ([264]).

In England the rule is thus laid down as to excluding experts from the room during the examination of witnesses; “medical or other professional witnesses, who are summoned to give scientific opinions upon the circumstances of the case as established by other testimony, will be permitted to remain in court until this particular class of evidence commences, but then, like ordinary witnesses, they will have to withdraw, and to come in one by one, so as to undergo a separate examination.” A similar rule prevails in Scotland and in the United States ([265]).

It would seem that the court has power to limit the number of experts in any case ([266]).