Mariano F. Medrano.

The American jurist and law magazine, Volume 21 online

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tion?

We will not say of the other construction of the statute,
that it involves the idea of its being intended to protect
perjury — though such might fairly be said to be its effect in
a case like the present — but will only express our approba-
tion of the learned judge's suggestion, that the formality of
registration was designed as a provision for the preservation
of the testimony, and a guaranty of its authenticity when-
ever it should be called for.

Perhaps another consideration may be urged with some
force against the necessity of a legal usefulness in the depo-
sition in order to make it the subject of perjury. Let it be
supposed that a deposition like the present has been duly
recorded, and then circumstances render it valueless as
evidence; for instance, the deponent is still « alive, and



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292 Perjury. [Jan.

within reach of the process of the court, and otherwise
competent as a witness in propria persona. The deposition
in such case, we presume, would, for the time being, per-
haps absohitely be rendered nugatory. Yet might not the
deponent be indicted for swearing falsely upon that depo-
sition 1

We believe we have said enough to dispose of the case
where false testimony does not amount to perjury for want
of a due administration of the oath. Perhaps, in so doing,
we have also disposed of lord Ellenborough's decision,
above mentioned, relative to the abatement of the suit by
death of parties. If the testimony in that instance had
been given before the suit abated, all other essentials of
perjury concurring, we could not but have considered it
exactly at variance with the views above lurged. The £ftct,
however, that the suit was already legally defunct wh^i
the false testimony was given, which was expressly found
in the case reported, takes away all applicability to the
present question ; or at least brings it so far within the
remarks already made, that we deem farther comment un-
necessary. On the whole, then*, we conclude that availa-
bility does not in general enter into the consideration
whether false testimony in a given instance may amount to
perjury, and that in the particular instance before us, the
Massachusetts statute does not require a departure^ from the
rule.

The reasoning which we have thus far used does not
stand wholly unsupported by juridical authority, though
the law of perjury at best presents a meagre development
Mr. Roscoe, in his '^Criminal Evidence," page 674, ob-
serves that '^ the object with which the oath is taken, n^ed
not be carried into effect ; for the perjury is complete at the
moment when the oath is tak«n, whatever be the subsequent
proceedings. Thus, where the defendant was indicted for
perjury in an affidavit, which could not from cecrtain defects



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1841.] Perjury. 293

in the jurat be received in the court for which it was
sworn, Littledale, J., was -of opinion that, nevertheless per-
jury might be assigned upon it.^ So it was ruled by lord
Tenterdeu, that a party filing a bill for an injunction, and
making affidavit of matters material to it, is indictable for
perjury committed in that affidavit, though no motion is
ever made for an injunction."* And in the New York re-
ports we find two cases quite as much in point as those just
quoted. In Dayton v, Rockwell,' it was held that perjury
might be committed in making an affidavit, which was
legally defective for the purpose for which it was made.
In that instance, the party in question, in order to obtain a
justice's warrant, had made affidavit that he had a good
cause of action against his debtor, without adding that the
debtor was about to leave the country; and though the
warrant would be invalid for that defect, yet it was decided
that the party might none the less be guilty of perjury, if
he swore falsely, qucUenuSy in order to obtain it. So, in
Pratt r. Price,* an affidavit made to obtain a wlrit of certio*
rarij in a case where it could not be granted in consequence
of the prohibition of an express statute, was Nevertheless
held to be the subject of perjury.

Thus, upon authority, as well as principle, we should
arrive at a different decision from that pronounced in the
case before us. We do not assent that the want of record
to the defendant's deposition absolved him from the penal-
ties of perjury for false testimony therein contained. As
matter of proof, we believe the Massachusetts statute in
requiring the recording of depositions " in perpetuam,^^ and
the decisions of the supreme court in rejecting them as evi-
dence for civil purposes unless so recorded, were not de-
signed to have the effect to exclude them as proof in a

> Hailej's caae, R. and Moody, N. P. C. 94.

* White's cue, Moody and Malkin, 271.

« 11 Wemd. 140. « 11 Wend. 127.



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294 Medical Evidence. [Jan.

criminal proceeding, like the present ; and, finally, that the
profert in the indictment in question did not require the
production of the deposition as of record. o. b.



ART. Ill— MEDICAL EVIDENCE.

It is a matter of common remark, that medical men, even
when possessing considerable reputation, make but a sorry
figure on the witness-stand, and the fact is regarded, on
account of its frequency, as reflecting some discredit on the
profession itself. We are not inclined to deny the correct-
ness of the charge, but we regret that the fact has seldom
excited any other emotion than one of surprise or contempt,
and that but little desire has been evinced to ascertain the
causes of so singular a phenomenon. The inquiry, if can-
didly pursued, would have shown that the evil is charge-
able, in a great measure, to causes very different from that
to which it is commonly attributed; and people would have
seen, like the poet in Moliere, who found to his astonish-
ment, that he had been writing prose all his life, that they
have been surprised at what could not have been otherwise,
in the very nature of things. The medical profession has
been greatly wronged by the imputation of ignorance and
presumption that has been freely cast upon it, in consequence
of the lamentable exhibitions of some of its members ; and
it is time it were generally understood, that the blame in
this matter is more justly chargeable to the laws and opinions
of the community, than to any culpable deficiency in the
profession itself. Society has it in its power to mould the
professions, almost as it chooses ; and it may be laid down
as a general principle, that their characters, whatever they
may be, are attributable, not more to those of the individuals
that compose them, than to the state of society in which



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1841.] Medical Evidence. 295

they exist All other than their necessary defects may be
more or less remedied by the action of the community, so
that if they are permitted to remain after having been fairly
exposed, the professions cannot be justly responsible for the
evils they occasion. Before blaming or ridiculing medical
witnesses for '^breaking down" so frequently, we should
be sure that any other class of men would have done better
under similar circumstances. We are anxious that the delin-
quency in question should be traced to its true source, for
the double purpose of doing justice to the medical profession,
and of suggesting a remedy for the evil in question.

We certainly would not deny that the proverbial embar-
rassment of medical men on the witness-stand, is sometimes
the result of culpable ignorance that deserves no indulgence
whatever. Men who have long since abandoned the study
of their profession while they continue in the practice of it,
and act upon the idea that a science which is constantly
improving had arrived at perfection during their pupilage,
have not unfrequently undertaken to enlight^ courts and
juries, in a way that would eflfectually prevent a student
from obtaining a diploma from any respectable school in
the country. The counter testimony of others of genuine
attainments, and the scathing process of a cross-examina-
tion, only induce them to persist in blazoning their folly
and in striving to obtain a triumph by force of positive and
clamorous assertions. It too frequently happens on such
occasions, especially in the country, that feelings of per-
sonal animosity usurp the place of a conscientious regard
for truth, and the witness-stand becomes the scene of pro-
fessional collisions in which ignorance generally triumphs.
We have known, in a case of poisoning by arsenic, the tes-
timony of a modest young man, though a very skilful prac-
tical chemist, utterly discredited with the jury by the bold
and swaggering assertions of an old practitioner who knew
nothing of chemistry, and for years, probably, had not read



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2% Medical Evidence. [ JaxL

a paragraph in any scientific work whatever. But whether
such exhibitions can be justly considered as disgraceful to
the medical profession or not, lawyers certainly have no
right to complain of them, so long as they are guilty of de-
liberately endeavoring to make professional ignorance and
the popular prejudice in favor of age and fancied experience,
available to the success of their cause. If professional igno-
rance and audacity rear their unblushing front in the wit-
ness-stand, we have a right to ask, who places them there?
who confidently reckons upon them, as the principal ele-
ment of success?

While we have no disposition to excuse gross or culpable •
ignorance, we claim some indulgence for the intelligent phy-
sician, on account of the disadvantages under which his
testimony is given. The duties of the medical practitioner
are far from being favorable to the promotion of the intel-
lectual habits which are essential to that precision and accu-
racy in his opinions, which alone will enable them to bear
the test of a searching examination. With his mind well
fortified with principles and enlarged by philosophical views
of nature's laws in the sphere to which he has devoted him-
self, he begins his career, determined to find an explanation
of every phenomenon, and to have a reason for every mea-
sure. He reverently bows to the supremacy of true philoso-
phy and turns himself away from the seductive worship of
empiricism. He advances but a little way in his course,
however, when he finds that the light which seemed to
beam 'over his whole path, frequently disappears, and leaves
him to grope his way in darkness. At the very bedside of
his patient, the ample instructions of the schools become a
dead letter ; he finds himself obliged to resort to his own
resources, and obtain the requisite conclusions in the best
manner he can. He is not only obliged to arrive at his con-
clusions as he best can, but the circumstances of the case
often admit of but little deliberation, and he is necessarily



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1841.] Medical Evidence. 2ffT

giiided, more by the force of general impressions, than by
deductions cautiously and rigidly drawn. Such conclusions
are sufficient for his purpose, and he may have a strong
conviction of their correctness, while it might be difficult for
him to give a reason for his belief that would satisfy others,
or bear examination. This, however, in the ordinary routine
of practice, is seldom required, and he remains unconscious
of his deficiency, till he finds, in the quality of a witness,
that opinions which he has been acting upon all his life, are
suddenly annihilated, like the baseless fabric of a vision, by
the assaults of relentless counsel. While court and jury
are eagerly expecting the why and because of what he says,
he can give them nothing but individual, unsupported con^
victions which, anywhere else indeed, it would never have
entered their heads to doubt. And if, in the course of his
life, he has ever borne in mind the hint of a veteran practi-
tioner to a young enthusiast, — ^^Juvenis, tua doctrina non
pramiitit opes : plebs amat remedia^^^ — and been chary of
expressing his opinions, until he has almost lost the power
of doing it, who can blame him ? Is it his fault that he
has been obliged to confine himself to brief and oracular
responses, which, though they fail to enlighten the inquirer,
effectually silence and satisfy him ? Ought it to be expect-
ed, that the moment he enters a court, he should drop the
habit of his whole life, and succeed for the first time in
pouring light and conviction into minds that nevet ^ould
suffer the attempt before ?

This difllculty which is experienced by the physician in
supporting his opinions by appropriate illustrations, factff
and arguments, is greatly increased by the circumstances
under which his evidence is given. He is often called upon
without any opportunity for preparation, or his preparation,
if he have made any, is of little avail to him, from the fact
of his being unable to anticipate the precise points on which
his evidence may be required. Amid the fatigues and anx*^



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298 Medical Evidence. [Jan.

ieties of an extensive practice, it has been impossible to
render himself familiar with any other than those parts of
his profession that are of daily and hourly application. Can
it be surprizing, then, that he should manifest some embar-
rassment, or even "break down" on the witness-stand,
when required, on the spur of the moment, to deliver opin-
ions decisive of his professional reputation on topics of the
most difficult nature, which might once, perhaps, have been
familiar to his mind, but which he has been forced to neg-
lect for others of greater practical importance? What law-
yer would make a better figure, if unexpectedly obliged to
give his opinions on difficult points of law ; or rather, what
lawyer would not refuse altogether to give such testimony
without sufficient opportunity for examination and reflec-
tion. If medical men had a proper regard for their own
rights, they would take a similar course. Courts can oblige
them to testify merely to facts that have come under their
own observation. They cannot compel them to express
opinions, as experts, and if the latter voluntarily consent to
perform this duty, they may demand ample time and means
for investigation. In no other way can they avoid jeopard-
izing their own reputation, and comprising the honor of
their profession.

This course is rendered particularly necessary by the pecu-
liar nature of the inquiries that often arise in the judicial
discussion of medico-legal questions. In ordinary study
and practice, the views of the physician are confined to the
actual, not the possible. It is enough for him to know what
is and what has been ; and by the indications which such
knowledge furnishes, lie is guided in accomplishing the great
object of his profession, — the cure of disease. It is foreign
to his purpose to speculate on contingencies that may never
happen, and therefore in obedience to a rule of good philoso-
phy, he regards it as useless, and confines his attention to
actual, unquestionable phenomena. In the case of medico-



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1841.] Medical Evidence. 299

legal evidence, however, it is all very different. The physi-
cian is required to testify, not only concerning facts that
have come under his cognizance, but also to deduce general
results from supposititious facts, — to contemplate a contin-
gency which neither he nor any one else ever contemplated
before. He may have seen, for instance, a great variety of
wounds, observed their constitutional effects, and marked
their issue, without being able to return a decisive answer
to the question, whether a certain wound would have been
followed, as it was, by death, without the previous or sub-
sequent occurrence of a certain disease. The reason is, that
in the absence of any direct experience on the point, he can
obtain at best but an appro;Kimation to the truth, by a careful
consideration of analogies, and for that, probably no oppor-
tunity is allowed him. The medical witness is justified in
expressing himself promptly and positively, only on simple
and common points. In regard to the possible, the probable,
the conditional, the uncertain, his opinions should be the
result of calm and deliberate consideration. When, for in-
stance, the case is that of a person who is knocked down^
becomes insensible, and soon after dies, there are many and
various facts to be borne in mind ; their relations to one
another, and the mutual influence of their various combi-
nations are to be carefully examined, before even an approx-
imation to the truth can be obtained ; all this demands the
most cautious and deliberate investigation, aided by all the
light that can be derived from special experiment and cases
of a similar nature. On the trial of Burke and Hare at
Edinburgh for the murder of the woman Campbell, Dr.
Christison was asked, if certain bruised marks and extrava-
sations of blood under the skin, which were observed in dif-
ferent parts of her body, were indications of injuries received
before death. It was a question which even this distin-
guished medical jurist would not have ventured to answer,
had it not been anticipated, and made the occasion of a



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300 Medical Evidence. [Jan.

series of experiments which afforded a satisfactory result'
When a physician, with no other data than what the evi-
dence in court has just furnished him, always ventures to
express a positive opinion, we must say it indicates the con-
fidence of presumptuous vanity, rather than that which
springs from profound attainments and a humble reverence
for the truth. And yet in a large proportion of cases, the
only alternative, left for the medical witness who does not
know or does not insist upon his rights, is either to evince
this kind of confidence, or inevitably excite the ridicule and
contempt of court and bar, by utterly and ignominiously
" breaking down."

It should be remarked in this connection, that the medical
witness, though addressing himself to men of education and
intelligence, still suffers from the popular misconceptions
respecting the extent of medical science. He is presumed
to be familiar with every subject of a medical nature, ready
to answer questions and lay down opinions, as if ex cathedra,
on all points alike. He knows something of what others
know nothing, and in the true spirit of ignorance, his know-
ledge is magnified beyond all possible limits. It does not
seem to be understood, that the results of medical science
have none of that exactness and certainty which attend
those of mathematical and physical science. The cautious,
limited, and general statements of the medical witness are
too often viewed as indicative of ignorance, and far less
satisfactory than dogmatic assertions and high-sounding
pretensions.

The manner too in which evidence is elicited is of itself
sufficient to account for almost all the embarrassment of the
witness. Accustomed as he has been, to the quiet and
secluded routine of his duties, where no great activity of
mind has been exerted ; where his word is seldom ques-

' Edin. Med. dt Surg. Joum. zzzi, 236.



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1841.] Medical Evidence. 301

tioned, and his faculties never sharpened by collision with
the faculties of others, he finds himself placed in a very
different scene, on which he is entirely unprepared to act his
part. Thinking only of speaking the truth, the whole truth,
and nothing but the tnith, calmly and dispassionately, as
on any other scientific subject, he soon perceives that he is
in the hands of able and ingenious counsel, whose object is
not so much to ascertain the truth, as to serve the interest
of their client. He perceives that every expression is
watched, and tortured, if possible, into something very dif-
ferent from its intended meaning, and that every endeavor
that professional cunning can suggest, is used to entangle
him in his speech. He resolves to be cautious and to weigh
well his words, till, finding that his caution is construed
into ignorance, or bad faith, he is thrown off his guard,
artfully beguiled into some track remote from the object in
qi^stiou, betrayed into some inconsistency of statement, and
suddenly overwhelmed with confusion and dismay. When
the advocate has thus finally succeeded in worrying his
victim into some fatal admission which otherwise would
never have escaped him, then are the eyes of legal gentle-
men upturned in perfect astonishment, '* that so intelligent
and respectable a class of men as the medical profession,
should make so poor a figure in the witness-box," and they
come to the sage conclusion, that they *' have a great distrust
of this kind of evidence."

Of the various causes, however, which concur to disqual-
ify the physician from distinguishing himself on the witness-
stand, the principal one remains to be considered, — ^it4s the
little attention that is paid to tlie study of medical jurispru-
dence as an independent branch of the science. The nature
of the phenomena embraced in medico-legal questions, and
the line of inquiry which it is necessary to pursue, in order
to arrive at satisfactory solutions, are sufBciently peculiar
to distinguish this branch of medicine from every other.



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302 Medical Evidence. [Jan.

True, a large proportion of these questions are questions of
anatomy, pathology, obstetrics, &c., yet the facts and prin-
ciples of these branches receive from the medical jurist, an
application very different from that which the purposes of
the surgeon,* physician, and accoucheur require. A man
may be an excellent anatomist, and capable of performing
every operation in surgery, without being able to say
whether a wound inflicted with a certain instrument, in a
certain direction, and with a certain degree of force, could
or would not involve this or that organ. He may be well-
grounded in the principles of pathology, and still be at a
loss to say how far a certain symptom may be controlled
by the will, or one disease be masked by another. He may
be a skilful accoucheur without finding it necessary to the
success of his practice, to be well acquainted with all the
signs of delivery. He may have made extensive researches
into pathological anatomy, without knowing what changes
are presented by the organs after death from starvation, or
whether certain changes that are revealed by examination
many days or weeks after death are the result of disease,
of poison, or the incipient stages of decomposition. In order
to understand these questions, it is obvious that something
more is requisite, than the kind and degree of knowledge
that may ensure success in the practice of any department
of the healing art.

Medical jurisprudence also involves many inquiries that
have little or no connection with the studies that qualify one
for the ordinary duties of the medical profession, and unless
his attention is specially directed to them, he may remain
almost unconscious of their existence, till some occasion
offers when he finds his reputation is sadly comprised by his
ignorance. He may graduate with much credit, and justify
the promise of his youth by the attainments of his riper
years, without being able to expose the devices of an im-
postor simulating insanity, or to detect a minute portion of
poison in the stomach after death.



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1841.] Medical Evidence. 303

Sueh being the practical importance of medical jurispru-
dence, it might at first be presumed, that it would hold a
prominent place in any course of medical education. It
should be considered, however, that in relative importance,
it is inferior to other branches of medicine, for while it is
the daily duty of the practitioner to prescribe for the sick,
he may pass his life without being called to give his testi-
mony in a court of justice. Hence it is that instruction in
medical jurisprudence has been greatly neglected in all our
schools ; being entirely omitted in some, and confined to a
few desultory lectures in others. Probably not a question
is asked concerning it at the final examination of the stu-
dent, and he goes away with the impression that it is of
very little consequence whether he knows anything about it
or not. Thirty years ago, so ignorant were even well-edu-
cated men in England of the nature and objects of this
science, that for aiding to establish a chair for its regular
teaching in the university of Edinburgh, the ministry were
charged with being guilty of the most ridiculous folly, and



Online LibraryMariano F. MedranoThe American jurist and law magazine, Volume 21 → online text (page 26 of 45)