A Modern Wizard

by Rodrigues Ottolengui

"'It does not follow that because a person is wounded and dies, the death is caused by the wound; and the burden in such cases is on the prosecution to show beyond reasonable doubt that the wound in question produced death. It may happen also, where poison has been administered, that death resulted from natural causes. The presence of poison may be ascertained from symptoms during life, the post mortem appearances, the moral circumstances, and the discovery of the existence of poison in the body, in the matter ejected from the stomach, or in food or drink of which the sufferer has partaken. But to this should be added proof that the poison thus received into the system was the cause of death.'

"I think that passage most clearly indicates to you the task which the prosecution have undertaken. Upon what do they rely for the accomplishment of their purpose? Two things mainly. Circumstantial evidence, and expert testimony. And now, if I may hope for your close attention, I will say a few words upon both of these classes of evidence, in general.

"Circumstantial evidence, I need hardly tell you, is most delusive in its character. Analyzed, what do we find it to be? It has been truly argued that there is, and can be, no cause without an effect. In considering circumstantial evidence, the mind of the investigator is presented with the relation of a number of facts, or effects, and he is asked to deduce that they are all attributable to a stated cause. For example, a peddler is known to have started out upon a lonely road, and to have in his pack certain wares, a given amount of money in specified coins and bills, wearing a watch and chain, and he is subsequently found murdered, by the wayside. Later, a tramp is arrested upon whose person is found the exact missing money, and many of the articles which were known to have been in the pack. He is charged with the crime, and the evidence against him is circumstantial. His possession of these articles is an effect, which is said to be attributable to a cause, to wit, the killing of the peddler. But strong as such evidence may appear, as I have said, it is delusive. For just as the prosecution ask you to believe that a number of effects are traceable to a single cause, the crime charged, so also it is possible that all of the effects may have resulted from various causes. Thus in the case cited, the tramp may have been a thief, and may have stolen the articles from the peddler after some other person had killed him. And if it could be shown that the watch and chain were missing, and yet were not found upon the tramp, that would be as good evidence in his favor, as the other facts are against him. So that in circumstantial evidence the chain must be complete. If a single link be missing, or have a flaw, the argument is inconclusive, and a doubt is created, the benefit of which must invariably be given in favor of the accused.

"If this be true where there is a single link that has a flaw, what are we to say when we find that the entire chain is composed of links which are faulty? You are asked to decide that from this fact, and that fact, and the other fact, the accused is guilty of a crime! Suppose that we show that from either the first, or the second, or the third fact, we can trace back to other causes as producing the result? Why, then, the prosecution's case is rendered so fragile that the gentlest breath of a zephyr must blow each separate link to a different quarter of the globe. Now, that is what I shall endeavor to demonstrate; that, from the chief facts claimed by the prosecution, you may deduce innocence rather than guilt.

"First, we have the accuser, Dr. Meredith. He aids the prosecution's claim of poison by relating the symptoms of poisoning, which he says he observed before death. Now, even granting that this is a true statement of facts, observed by an unprejudiced mind,—of which, gentlemen, you can readily judge, when you recall the abundant testimony as to an existing animosity,—but, even granting its absolute truth, what does it show? Simply that morphine had been administered, in a dose large enough to have produced ante-mortem evidences of its presence. But what of that? Does it show that the drug was administered by any particular person? By Dr. Medjora, as the prosecution have claimed? If so then I am ignorant, and ill informed as to all the rules of logic. It shows that morphine was present, and it shows no more, and no less. Now that fact we freely admit. The Doctor himself told you how the drug was taken, and there has been nothing whatever offered, that even tends to disprove his assertion. Thus, as his testimony is all that we have upon the subject, and as it has been unimpeached, you are bound to accept it as the only evidence available. I may also remind you at this point, that in this country, where the God-given liberty of one man is as much cherished as that of the whole people, a man is to be considered innocent until after he has been adjudged guilty. He therefore goes upon the witness stand, as unsullied as any other witness, and his evidence is entitled to the same credence. I may also interject a momentary remark as to the difference between juridical and common judgment. You may see a man commit a crime and if accepted upon the jury which tries him, although you know that he is guilty, you are bound to bring him in innocent, unless the evidence introduced against him proves his guilt, entirely aside from your own prejudices or prejudgment. You must give a juridical opinion only. So that if you have imbibed any prejudices against Dr. Medjora,—which is scarcely probable, for he must have impressed you as favorably as he has every one else who has seen him in court,—but if so, you are to set that all aside, and accept his unimpeached evidence upon this point, relative to the administration of the morphine, as the only available evidence upon which to base an opinion. And if you do adopt that, and decide, as you necessarily would, that self-administered morphine cannot implicate Dr. Medjora in this crime, why the case is ended at once, and need scarcely go any further.

"However, merely as a matter of form, I will take up one or two more points. The second link in this circumstantial chain is that evidences of morphine were found at the autopsy. But, gentlemen, what of that? You and I know how it entered the system, and of course we expect that eminent specialists, such as the gentlemen who performed the autopsy, must necessarily recognize the recent presence of the drug. It forms no particle of proof whatever against Dr. Medjora. That we see clearly enough, when we eliminate the bare facts from the fog of misinterpretation. But I may casually remind you of another fact, which these same eminent specialists told us about. They found that the kidneys were atrophied, an evidence of disease, and later we learned that if the kidneys are diseased morphine is retained in the system, until a poisonous dose may accumulate. So we see that even if the deceased was poisoned to death, it was only by the retention of many doses, due to a diseased condition, and in no way attributable to criminal interference.

"The next link is the actual presence of the drug, as testified by the expert chemists. They tell us that they found morphine. Why of course they did. It was in the system; we knew that it was there; and we are not at all shocked by the discovery.

"But I need not take up any other of these forged links, for, as you plainly see, the principal ones are so very faulty that as they are the mainstay of the bonds that bind our client, we break them asunder with scarcely an effort.

"Now, I will say a few words relative to expert testimony, and I beg of you to understand throughout, that however I may attack this sort of evidence as a class, I speak in general terms only, and in no way cast any imputations against the scientific gentlemen who have appeared upon the stand, except as they come within the limitations of their class, as I am about to explain to you.

"When expert testimony was first introduced it was received with marked respect. The expert witness was counted as a professor in his specialty, and his word was almost final. Experience, however, has materially altered all this. The field from which the expert may be cited has been vastly broadened, whilst at the same time his testimony is accepted with much more caution, and less credence. The causes which have operated towards this state of things are manifold, but I need not explain them here. Wherever there is any sort of specialty, from the blacking of boots, to the highest scientific pursuits, we now have experts who go upon the stand, and dogmatically inform us that their opinions are the true and only accepted finality upon the subject presented. But we have found, that however positive one, or two, or three experts may be in asseverating what they claim to be a fact, an equal number, of equally scientific, equally experienced, and equally trustworthy experts, may be found whose testimony will be equally as positive, though diametrically opposed. Indeed, so true is this, that I may quote the wise words of that eminent jurist Lord Campbell, who says: 'Skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence.' These are strong words, but what does Lord Campbell mean? That an eminent scientist would go upon the witness stand, and perjure himself merely because he has been engaged to substantiate a given proposition? Not at all. Of all experts, I may be permitted to say perhaps, that the most eminent are those connected with the professions, for we must rank the professions higher than the arts, just as the arts are above the trades. We have three great professions, to wit, the Ministry, Medicine, and Law. If we could have before us the most prominent Minister, the most celebrated Physician, and the most eminent Lawyer, we would probably have three men standing equally high in public esteem. Then let us suppose that this most eminent lawyer were engaged as counsel in some great suit. Suppose that some intricate technicality of law should arise, upon which the presiding judge should ask for argument and precedents. Suppose, then, that associate counsel should place this most eminent lawyer upon the stand as an expert witness? Remembering that he had been paid for advocating the cause in behalf of which he was testifying, how much weight would his evidence have? I think you will agree that it would be very slight indeed! Yet is it not the same with the expert physician? Is not the skilled medical witness hired, and paid for his advocacy, just as that eminent lawyer was? Then why should we discard the evidence of the one, and accept the other? Neither of these gentlemen commits perjury. What they tell, is honestly told. But—and, gentlemen of the jury, I now come to the vital point of this argument—the expert does not give us an unbiased opinion. The reason is plain. As experts can be found with varying opinions, so those are sought whose opinions agree with the position which they are called to sustain. To be more definite, the experts called by the prosecution in this case, were called, because it was known in advance what they would testify, and because said testimony would be favorable to the hypothesis of the prosecution. Though, I may say parenthetically, in this case it has proven otherwise. But, stated on general principles, that is the fact. The prosecution chooses experts, whose views can be relied upon to support the charge against the prisoner. And I must candidly confess that the defence is actuated similarly. Surmising in advance what the opposing experts would tell us, we went about amongst equally eminent men, and found no difficulty in selecting those who could with equal positiveness, with equal authority, and with equal experience and knowledge, support our hypothesis. Had we found a gentleman who entertained views similar to those of the prosecution's witnesses, do you suppose, for one moment, that we would have engaged such a man to aid us? Of course not! Then are the lawyers for the prosecution any more human than we? Do you suppose that they would call an expert, if they knew that his honest opinions would controvert their claims? Certainly not. Were they not loath to call Dr. Fisher? Thus, gentlemen, have we discovered, by analytical reasoning, the cause of the bias existing in the mind of an honest man. His opinion is sought in advance. If favorable he is engaged. When engaged he becomes a hired advocate, as much as the lawyer. Moreover, unlike the witness of facts, his testimony is tinged by a personal interest. He knows that celebrated experts will oppose his views. His reputation is on trial, as it were. If the verdict is for his side, it is a sort of juridical upholding of his position. He is therefore arrayed against his antagonists, as much as the lawyers of the opposing sides. In short, having once expressed an opinion, he will go to any extreme almost, to prove that he is right. The questions asked by the counsel for his side, the majority of which he prepares or dictates himself, are glibly and positively answered. But when the cross-examination begins, what do we see? An interesting spectacle from a psychological standpoint. We see a man, honest in his intentions, standing between two almost equal forces; the love of himself and of his own opinions, on the one side, and upon the other the love of scientific truth which is inherent in all truly professional men. When a question is asked, to which he can reply without injury to his pronounced opinion, how eagerly he answers. But when a query is propounded, which his knowledge shows him in a moment, indicates a reply which his quick intelligence sees will be against his side, what does he do? We find that he fences with the question. As anxious not to state what he knows to be false, as he is not to injure his side of the case, he parries. He tells you in hesitating tones, 'It may be so, in rare cases,' 'Other men have seen and reported such instances, but I have not met them,' 'It might be possible under extraordinary circumstances, but not in this case,' and so on, and so on, reluctant to express himself so that he may be cited afterwards. You have witnessed this very kind of evasion in this case, so that you readily grasp my meaning. When I asked Professor Orton, whether the action of morphine is modified by disease, his answer was, 'It might be'; and when I asked him whether, from continual dosage, it could accumulate in the system, he said, 'The records contain reports of such cases.' When I asked him if morphine would not be so retained where Bright's disease were present, he tried evasion again by saying, 'I have never seen such a case,' after which he admitted that he had read of them in good authorities.