"As I have told you, speaking generally, this sort of evasion under cross-examination is a peculiarity common to nearly all experts, so that in singling out Professor Orton as an example, I do so with no intention of attacking his honesty of purpose. He was simply defending himself, and upholding the side which pays him for his advocacy. But I choose this testimony because if we analyze it I think we will find more, much more than appears at a glance; and I can at the same time show you how all expert testimony should be received. I will exemplify the amount of caution to be displayed in accepting what a skilled witness tells. I will show you principally, that what the expert testifies under cross-examination is more likely to be true, than what he tells the friendly lawyer on his own side.
"Now, when I asked Professor Orton whether Bright's disease would act as a cause to facilitate the accumulation of morphine in the system, he answered, 'I have never seen such a case.' That, gentlemen, is the set of words which I beg of you to analyze. Why did the Professor use just this language? For, mark you, it is a well-studied answer. Let us suppose that this eminent toxicologist had made an exhaustive series of experiments, which had proved, beyond all cavil, that the commonly accepted idea among physicians is wrong, and that Bright's disease will not effect an accumulation of morphine. How gladly would he have said 'No' to my question! How positively would he have asserted that Bright's disease would not have the effect which we claim! Therefore, that he does not use any such dogmatic denial shows logically and conclusively that he has no such knowledge. He does not know, beyond all doubt, that Bright's disease will not modify the action of this poison. But we can see more in this answer. Suppose that, lacking absolute knowledge, he had still a firm conviction. He would then most probably have said, 'It is my opinion that Bright's disease does not modify the drug's action.' But, gentlemen, he had not even a conviction of this kind. On the contrary, he must either have known, or else have leaned towards the belief that such an accumulation is possible, otherwise he would not have said just what he did say: 'I have not seen such a case.' 'I have not seen such a case'! Why, the very words suggest that such a case has existed. More—that the Professor had heard of such cases, and believed in them. Perhaps he hoped that this evasive answer would be accepted as final. In that case, gentlemen, it might have served, in your minds, as well as a negative reply. But, gentlemen, a lawyer's mind is necessarily trained to the quick appreciation of situations like this. As soon as he had said that he had never seen such a case, I was prompted by intuition to ask if he had not heard of them. Then the fat was in the fire, and we had an admission, however reluctantly given, that he had heard of them, and from competent authority. But the very attempt on the part of this witness to parry the question, and evade a full and truthful reply, carries a conviction with it, that he recognized immediately the importance of our claim, and the possibility that it is a true explanation of the sad death of this young wife. He saw at once that all the damning evidences of the presence of poison, are explainable by this simple hypothesis, that Bright's disease might cause otherwise proper doses of morphine to accumulate until a lethal dose be present, and then act to destroy life. He therefore attempted to belittle the hypothesis. He could not refute it; he scarcely dared to deny it as a possibility, and therefore he essayed evasion.
"Thus we may deduce more from the reluctant admission of an expert, than from their glibly-told tales which have been rehearsed in the office of the District Attorney. So that, after all, expert testimony is valuable—most valuable—if we but consider it with caution, and analyze it, until bereft of bias and prejudice, the grain of truth stands out, as truth ever will, conspicuous midst the mass of extraneous matter surrounding it, much of which is introduced for the express purpose of befogging your minds, and leading you away from the facts.
"Thus, gentlemen, upon closer examination we find that just as their circumstantial evidence was faulty, so the prosecution's experts prove a boomerang. For it is upon their evidence that we mainly rely for acquittal. Dr. McDougal, the Coroner's physician, examined the kidneys at the autopsy, and freely expressed the opinion that Bright's disease had been present. Of course he denied that this disease had caused death, but there we have the opinion of an advocate. Next we have Professor Orton, who, as I have shown, practically testifies that Bright's disease may cause morphine to accumulate in the system until a poisonous dose has resulted. Is not that enough, gentlemen, to satisfy you that, if this girl died of morphine, she died a natural death, and was not murdered? At least, does it not raise a doubt in your minds, which must be credited to Dr. Medjora, and which would deter you from sending him to the hangman? I am so positive that it must, that I will close this appeal, without calling your attention to the evidence, which has been abundant, and which indicates that death was not the result of poisoning at all, but of diphtheria, as indeed was certified in the burial permit. I could go over all the evidence in greater detail, but I am so strongly impressed with the innocence of our client, and so firmly confident that you are as capable as I am of reaching a proper conclusion in considering the evidence, that I will not take up more of your time, but leave our cause now in your care, satisfied that, regardless of the able rhetorical ability of the gentleman on the other side, you will be guided by Providence, and your own hearts, to aid the cause of justice and release Dr. Medjora from his present trying situation. And as you deal justly with him now, so may you receive your reward in the life hereafter."
CHAPTER XI.
TERMINATION OF THE GREAT CASE.
The District Attorney himself arose to speak for the commonwealth. "May it please your Honor and gentlemen of the jury," he began, "you have just heard an able argument in behalf of the prisoner. Counsel has told you truly, that in this free Republic, which has become the refuge and asylum for the oppressed of all nations, the liberty of one man is as sacred as the rights of the whole people. He has also used the well-worn argument that the prisoner should have your sympathy, because of the weakness of his position. By this is meant, that the State; having wealth, can engage prosecuting officers of ability, whilst the prisoner, thrown upon his private resources, may be compelled to intrust his cause to the care of inferior counsel. But, gentlemen, you must see at a glance that our learned opponent has weakened his own argument by the unusual display of ability which he has exhibited in this case. Surely in his hands the cause of the prisoner is eminently safe! The commonwealth, with all its resources, cannot summon greater legal ability to its aid. Therefore you may relieve your minds of any idea of pity for the prisoner, and omitting all thought of him personally, decide this case entirely on the evidence.
"But if you find it difficult to disregard the fact that here is a man, whose liberty or life is at stake, then I bid you remember, that whilst it is true that his rights are equal to those of the State, they are no greater. The commonwealth must have equal place, in your judgment, with the prisoner.
"As the prosecuting attorney I stand in a somewhat peculiar position. In ordinary lawsuits, opposing counsel are retained by the various sides, and are arrayed against each other solely. Under such circumstances the able arguments of Mr. Bliss would hold sway. I am alluding now to his attack upon expert witnesses. Let us suppose that a suit is brought to overthrow a will, the plaintiff arguing that the signature has been forged. Experts in chirography are called by both sides. It is manifest, as Mr. Bliss has said, that the opinions of experts will be sought by the contending counsel, and at the trial we would have those favoring the theory, forgery, testifying to that effect, whilst the others would support the genuineness of the signature. Undoubtedly, also, had either of these gentlemen expressed a different opinion prior to the trial, he would have been found upon the opposite side. Or, in plainer words, the men are hired to testify, because, previous to the trial, they hold an opinion favorable to the side which pays them. Thus, as has been shown to you at some length, eminent jurists now accord but cautious credence to expert testimony, because of the bias which must attend paid advocacy. But, gentlemen of the jury, as logical as all this is, when applied to a civil suit, it becomes but the most specious reasoning when introduced into a criminal case, such as this.
"We are often led astray by arguments, which contain analogies which are but apparently analogous. In this case there is a flaw at the very root of the argument, and therefore the very flower and fruit of the whole beautiful array of words must wilt and fail.