MEDICAL JURISPRUDENCE.

MEDICAL EVIDENCE.

CHAPTER 1.

THE PRACTICE OF MEDICAL JURISPRUDENCE.—MEDICAL AND MEDICO-LEGAL DUTIES.-DYING DECLARATIONS.-INSPECTION OF BODIES IN DEATH FROM WOUNDS OR POISONING.-USE OF NOTES.-MEDICO-LEGAL REPORTS.

MEDICAL JURISPRUDENCE or, as it is sometimes called, FORENSIC, LEGAL, OF STATE MEDICINE―may be defined to be that science which teaches the application of every branch of medical knowledge to the purposes of the law; hence its limits are, on the one hand, the requirements of the law, and on the other, the whole range of medicine. Anatomy, physiology, medicine, surgery, chemistry, physics, and botany lend their aid as necessity arises; and in some cases all these branches of science are required to enable a court of law to arrive at a proper conclusion on a contested question affecting life or property. The purpose of this work is to bring as far as possible within a small compass those subjects that especially demand inquiry, and which more particularly concern the duties of the educated physician and surgeon. The definition above given necessarily implies that a medical jurist should have a theoretical and practical knowledge of all branches of the profession, a large range of experience, and the rare power of adapting his knowledge and experience to emergencies. He should be able to elucidate any difficult medico-legal question that may arise, and be prepared at all times to make a cautious selection of such medical facts, and a proper application of such medical principles, as may be necessary to enable a judge to place the subject in an intelligible light before a jury, and to enable a jury to arrive at a just conclusion.

The variety of subjects of which a medical jurist is required to have a knowledge, may well alarm a student and lead him to suppose that, as he cannot make himself perfectly acquainted with all, he may well forego the labour of preparing himself in any. But this would

B

2

DUTIES OF PHYSICIANS AND

be taking an erroneous view of his position. This description of the qualifications necessary to constitute a normal witness in a court of law must not deter him from entering on the study. It is assuredly beyond the mental power of any individual that he should be at the same time profoundly versed in all the principles of medicine and jurisprudence, and that he should be able to answer all possible questions, and encounter and remove all medical difficulties that may occur during the trial of a civil or criminal case. All that the law expects from a medical man is a fair average knowledge, not merely of his profession, but of that which falls more peculiarly under the province of a medical witness. There can be no doubt that the more perfectly a man has made himself master of his profession, the better will he be fitted to follow the principles and apply himself to the practice of medical jurisprudence; but he must divest himself of the notion that these principles can be spontaneously acquired, or that they are necessarily derived from the study of those isolated branches of medicine upon which medical jurisprudence is based. The materials for the medical jurist undoubtedly exist in these collateral sciences: but they require to be assorted, selected, and moulded into shape, before they can be applied to any useful or practical purpose.

The duties of a medical jurist are distinct from those of a mere physician or surgeon; the latter looks only to the treatment of disease or accident, and the saving of life; but the object of the former, in a large proportion of cases, is, whether in reference to the living or dead, to aid the law in fixing on the perpetrator of a crime, or to rescue an innocent person from a falsely imputed crime. Thus he may be required to determine whether, in a particular case, the cause of death was natural or violent; and for this purpose it will be necessary for him to make an entirely new application of his professional knowledge. He has now the difficult task of making a selection from those parts of the medical sciences which bear upon the legal proof of crime.

Some members of the profession have been inclined to look upon medico-legal practice as an unnecessary addition to their ordinary duties; but there are few that have been long engaged in practice, who have not found themselves occasionally placed in situations of difficulty from the accidental occurrence of cases demanding medicolegal investigation. A medical man is summoned to attend a person labouring under the effects of poison criminally administered; but at the time he may have no knowledge, or even suspicion, that poison is the cause of the symptoms. In spite of the best treatment, death ensues: here the functions of the medical man end, and those of a medical witness begin. It is impossible that he can now avoid giving evidence, or shift the responsibility on another-the law will insist on his appearance, first in the court of the Coroner, next before the Magistrates, and afterwards at the Assizes. It will here be assumed that, as a registered member of the profession, he is fully competent to answer every question put to him by judge and counsel relative to the general effects of poisons; the quantity required to destroy life; and the time within which a poison may prove fatal. It may be objected

SURGEONS IN ACTING AS WITNESSES.

3

to his evidence, that the deceased had died from the effects of disease, and not from poison; in which case the cross-examination will lead to a searching inquiry into all those diseases which resemble the effects of poison in their symptoms and post-mortem appearances, as well as the means of making an unfailing distinction between them, and the fallacies to which the chemical processes for the detection of poison are liable.

On another occasion a medical man may be called to render assistance to one stabbed in a quarrel, speedily dying from the wound. The office of the surgeon here ceases, while that of the medical jurist commences. He must now be prepared to answer numerous questions, all bearing upon the legal proof of crime, all necessary in law, although apparently superfinous in surgery. Thus he may be asked to state the precise characters of a wound inflicted upon the body of a man soon after death; and by what means a particular wound was inflicted? Was it homicidal or accidental? The amount of blood lost? Whether the person could have moved or performed any act after receiving the wound? Are certain spots found upon his clothes, or upon a knife belonging to him, due to effused blood or to other causes? Whether any, and what statements were made by the dying man, and what were the precise circumstances under which they were made? It need hardly be observed that questions of this nature are rarely noticed, except in a cursory manner, by chemists and surgeons; and a medical man is not likely to acquire the means of answering them by intuition. On the other hand, regarding ourselves as living in a civilized state, in which the detection and punishment of crimes against life and property are indispensable to the security of all, it is impossible to overrate their importance. Unless a witness is able to return answers to these questions when a public necessity occurs, a guilty man may escape punishment, or an innocent man may be condemned. A witness may thus most seriously injure his own reputation, for it is certain that his qualifications as physician, surgeon, or general practitioner, however great, will not shield him from general reprobation.

Thus, then, it is obvious that the duties of a medical jurist are of a highly responsible nature and of great importance to society, while the cases which call them into exercise are of purely accidental occurrence. A medical practitioner who thinks himself secure in the most retired corner of the kingdom, is liable to find himself suddenly summoned as a witness on a trial, to answer questions which perhaps during a long period of practice he had been led to regard as unimportant. Under the circumstances it is scarcely possible that he can avoid exposing his deficiencies, and the final question will be, Have you ever attended to or thought of these subjects before? A negative answer to this question, while it commonly brings with it public censure, will in most instances lead to the acquittal of the accused in spite of strong presumptions of guilt.

The truth of this picture will be felt and acknowledged by those who have been a few years engaged in practice. The records of our courts of law contain many unfortunate exposures, which might have

4

MEDICAL CONTRASTED WITH

been easily avoided had the witnesses only availed themselves of the opportunities afforded to them while students of acquiring a knowledge of the subject; but they had unreflectingly acted on the principle, that medical jurisprudence was a dry, dull, and useless study, and that the practice of it was remote and speculative. This feeling is, however, fast disappearing. Those who have been compelled by circumstances to give their attention to it, have, in subsequent cases, taken care to prepare themselves for the ordeal through which every medical witness must pass.

Some medical men who have treated legal medicine with indifference have ventured to act as witnesses, thinking that the subjects on which they were likely to be examined were so little known to judge and counsel, that even hazardous or rash statements would escape observation: such witnesses, however, have often found to their cost that they were labouring under a delusion. Various circumstances have led to the acquisition of much medico-legal knowledge by lawyers, especially in relation to questions connected with wounds, childmurder, and poisoning; and they are not slow in detecting and exposing a mere pretender who attempts to shelter himself by vague or evasive statements and technical language. Another fact must be borne in mind-there are few counsel engaged in any civil or criminal case of importance who do not take care to fortify themselves, under medical advice, with a full knowledge of the views of standard medical writers on the subject in dispute; and with these works before them, and with their proverbial acuteness, he must indeed be a clever witness who can succeed in passing off an erroneous or evasive answer to a medico-legal question.

It is a frequent charge against members of the medical profession that they are the worst witnesses on matters of fact and opinion. This is an unmerited censure. Those who are ready to make this charge overlook the number, complexity and difficulty of the questions which are put to medical men compared with those put to other witnesses. They also forget that medical men are much more frequently summoned as witnesses than the members of the two other learned professions. Their evidence obtains much greater publicity, and is necessarily exposed to a wider circle of criticism. The fact is, that good and bad witnesses are to be met with in every profession, and under equal conditions there is no reason to suppose that one would furnish a greater number of incompetent witnesses than another. It is certainly the fault of medical men that they are not always prepared for the questions which are likely to arise in a case on which they know they will be required to give evidence. This want of preparation frequently applies to facts as well as to opinions. Thus, in reference to a case on which a charge of murder or manslaughter may be ultimately founded, a medical man who is called in, omits to observe many circumstances, because at the time they appear to him to have little importance, although at the subsequent trial he may find, to his dismay, that they actually become the turning points of innocence or guilt. Medical observation as a result of professional habits is, on

MEDICO-LEGAL OBSERVATION.

5

The

these occasions, in general confined to only one set of circumstancesthe recognition and treatment of accident or disease; but medico-legal observation should take a much wider range than this, and should be directed to all the surrounding facts and incidents of a case. essential difference in the two kinds of practice is, that circumstances which are of no interest in a medical or surgical point of view, are often of the greatest value and importance in legal medicine. It is obvious that if they are not observed by a medical witness when he is first summoned to the injured person, whether dying or dead, it will be out of his power to meet many of the questions which must arise in the progress of the case. The non-observance of these facts is a serious evil, and often carries with it, although unjustly, an imputation of professional ignorance.

The first duty, therefore, of a medical jurist is to cultivate a faculty of minute observation of medical and moral circumstances. This, combined with a general knowledge of what the law requires as evidence, will enable him to meet satisfactorily the scientific questions that may be necessary for the elucidation of a case. The exercise of this faculty is by no means inconsistent with the performance of his duties as a surgeon. A learned judge on one occasion remarked that a medical man, when he sees a dead body, should notice everything.' Undoubtedly he should observe everything which could throw a light upon the production of wounds or other injuries found upon it. It should not be left to policemen to say whether there were any marks of blood on the dress or on the hands of the deceased, or on the furniture in the room. The dress of the deceased, as well as the body, should be always closely examined on the spot by the medical man. It may stimulate the attention of a medical practitioner in reference to these inquiries if he is informed that one art of counsel defending persons charged with murder or manslaughter, consists in endeavouring to discover what he omitted to do. Although sometimes the omission may be really of no medical importance whatever, yet it is usually placed before the jury in such a strong light that the accused obtains the benefit of a doubt. The omission may be attributed to professional ignorance, or, what is worse, to bias-a determination to find proofs of guilt--when the facts might be innocently explained by a want of experience on the part of the witness in dealing with cases of this nature.

If we except medical experts, who are selected according to their experience in different branches of the profession, medical men have no option respecting medico-legal practice; for the cases which give rise to medico-legal questions are always more or less connected with the practice of medicine and surgery. Thus before any inquiry is instituted by a magistrate or coroner, and before any suspicious circumstances have come to light, a medical man may be summoned to a person dying from the effects of a wound, or from the secret administration of poison. The dying person may make to him a declaration or statement as to the circumstances under which the wound was inflicted or the poison administered: he may also mention