MEDICAL EXPERTS AND THE HOMICIDE. DR. HENRY SMITH WILLIAMS. Under existing conditions, expert testimony in criminal trials is to be regarded, according to the point of view, as a farce or a tragedy. The expert witness presents us the humiliating spec- tacle of the alleged scientist turned advocate, mountebank, and trickster. He appears as a professed partisan-for hire. He hides his true opinions behind equivocal or evasive answers -for a consideration. He expresses by implication views he does not really hold-that he may seem to earn his fee. In a word, he sacrifices his mistress Science at the shrine of Mammon. At all events, he is openly accused of all of this, and much more in kind. He is railed at, scoffed at, jeered. The most charitable of popular opinions as to his character seems to be that which regards him as an unmitigated joke. And meantime he is placed in such a position that it is impossible foi* him to defend himself against these allegations. He may be a true sci- entist, learned, honest, conscientious, but under existing methods he cannot prove that he is such. The populace will judge him by his company, and, as matters stand, some portions of his com- pany are pretty certain to be bad. Whatever his real character, the fate of poor Tray awaits him. The spirit of the law is said to be common sense. But its letter has certainly permitted a wide departure from this alleged standard. The attempt to add to the communal weal by utilizing the knowledge of experts has culminated in something not far removed from total failure. What should be a most serious function has passed into a joke; and by common consent the joke has gone far enough. So it chances that in many different directions the entire subject of expert testimony is under discus- sion. The desirability of changes in existing laws bearing on MEDICAL EXPERTS AND THE HOMICIDE. 161 the matter is admitted. The only question at issue concerns the nature of these changes. Such being the case, a common-sense discussion of the subject seems in order; and it is this that I mean to attempt. Viewed in its entirety (and including, so to speak, its obverse side), the subject seems to me to present three distinct questions for consideration, as follows : I. How shall the medical expert be secured ? II. How shall his services be utilized ? III. What shall be done with the insane law-breaker ? I shall consider each of these phases in some detail. To give tangibility to my suggestions, I shall refer specifically to the laws of the State of New York. But if these suggestions really have the warrant of common sense, their applicability will not be restricted by State boundaries. The general bearings of the subject are the same everywhere, and the needs of New ?tork are, details aside, the needs also of Maine, Iowa, or California. I. The famous rule for baking a fish begins by directing one to secure the fish. Our criminal laws are not so logical in the mat- ter of expert testimony. They assume the medical expert, but they do not define him. He must, of course, be "com- petent," but we are given no sufficient official test of his com- petency. To be sure, he is put through all manner of verbal paces before the jury in the matter of alleged qualifications. He has studied in Europe under this and that eminent teacher; he has read such and such books, and doubtless written a few others himself ; he is consulting physician to sundry hospitals and asy- lums, and so on ad nauseam. But while all this may be supposed to have a certain effect upon the jury, it by no means determines the actual status of the pretended expert, who may, despite all this verbiage, be commonly recognized by his professional brethren as a blatant impostor. Indeed, under existing methods it is an open secret that the alleged expert is not infrequently selected rather because of his imposing " presence " or his known capacity to keep his wits about him under the fire of cross examination, than because of his actual knowledge. Such being the case, common sense suggests the desirability of a change in existing methods. The law should at least make the effort to discriminate between the real and the pseudo-expert. vol. clxiv.-no. 483. 11 162 THE NORTH AMERICAN REVIEW. But how may this be done ? What standard should be adopted by which to put the matter to a rational test ? Before making specific suggestions it must be recalled that experts, as usually consulted in criminal cases, are of two classes. The one class comprises chemists and pathologists, who are asked to make chemical or microscopical examination of bodies or parts of bodies of persons dying under suspicious circumstances, with a view to determine the cause of death. The other class comprises alienists, who are asked to determine a question of fact as to the mental condition of an accused person. It is clear that quite different kinds of technical knowledge are required by the mem- bers of these two classes of experts. It is equally clear that mere average medical knowledge does not supply proper qualifications for either class. A physician may have the best professional training and the highest standing in his profession, and yet be utterly incapable of making a thorough microscopical or chemical examination, or of forming a really competent judg- ment as to the mental condition of an obscure case of alleged insanity. Clearly, then, a man should not be permitted to qualify as an expert simply because he has good professional standing as a physician. He must have such standing, but he must also have something more. Up to this point there is no difference of opinion among those competent to judge. But now come difficulties. Just what qualifications shall be considered sufficient, and by whom shall these be adjudged ? These questions have been variously an- swered. It has been suggested, for example, that the various State medical societies shall select from among their members some names to be presented to the Appellate Division of the Su- preme Court, who shall appoint experts from this list. The plan is not without its good features ; yet, on the whole, it can hardly commend itself to anyone who views the field widely. Member- ship in these medical organizations does not in itself imply special qualifications of the kind demanded, and there is an un- fortunate but quite undeniable tendency of our medical societies to fashion after political machine methods, so that it is by no means certain that selections from their midst would always be made with that freedom from prejudice which is required. In- deed, this objection may be urged against any appointive power whatever that is not placed under very circumspect restrictions. MEDICAL EXPERTS AND THE HOMICIDE. 163 Fortunately, however, it is possible to suggest a far more promising method of selection-a method not open to the charge of being a crude and radical departure from precedent. The mention of a single phrase will suffice to clear the atmosphere about this question wondrously. That phrase is Civil Service Re- form. Put the position of medical expert on some such basis as the medical positions in our State hospitals for the insane have been upon for»some years, and a host of difficulties disappears. No one can secure a position as physician in our State hospitals who has not shown certain qualifications as to education, general and special, and moral standing in the community; and in addi- tion passed an examination prepared especially to test his particu- lar qualifications for the peculiar work on which he desires to enter. The system has ■worked admirably, removing our hospital appointments from the domain of politics, and insuring competent men for the positions, instead of the political heelers who secure these places as political spoils in some other States. Suppose then, that in order to qualify for the position of medical expert the physician must make application to a prop- erly organized Civil Service Board, which shall first determine his eligibility to take the examination, and subsequently test his special knowledge by actual examination. Then and not other- wise, so far as I can judge, should we be provided with a list of experts who are really possessed of qualifications such as the law contemplates. The exact prerequisites to eligibility would, of course, be de- termined by the Civil Service Board, as also the exact method of examination. These need not, therefore, be dwelt on at length here. Common sense would suggest, however, that the prelim- inary qualifications should include (in addition to thorough spe- cial education), in the case of the chemist and pathologist, practical working experience in connection with some recognized laboratory; and in case of the alienist, actual experience as a res- ident physician in an asylum for the insane for a period of not less than three years. These restrictions alone would bar out from eligibility for examination even a large proportion of the pseudo-experts who have made expert testimony a jest and a reproach. As to the civil service examination itself, the second step necessary to qualification as an expert, it should, I think, be in 164 THE NORTH AMERICAN REVIEW. part at least verbal, enabling the examiners to judge of the judicial temperament of the applicant, as well- as of his special knowledge, one of these points being quite as important as the other, but only one being brought out in a written examination. But, as I said before, these are details for the Commission to determine. The province of legislation is to establish the Civil Service Commission, and my present purpose looks to legislation only. I am perfectly aware that these suggestions will not meet the approval of many alleged experts who have been accustomed to secure from $100 to $300 or perhaps more per day, sometimes for many days or even weeks together, for services based on fictitious pretensions, and who would at once be barred out from these oppor- tunities by such a law. But I doubt whether any truly unprej- udiced person, qualified to judge, will dispute that to put the medical expert on some such tangible basis as to qualifications as I have just proposed would be a long step in advance of present methods. Space will not permit me to defend the thesis at length; but I am convinced, after very full and extended con- sideration of the subject in all its phases, that common sense sanctions the plan proposed. Moreover, it is a plan clearly ca- pable of being acted on; whereas some of the schemes proposed (in- cluding one suggested last year by a committee of a State medical society) have been declared unconstitutional, and hence are fore- doomed to failure. II. But assuming now, for the sake of argument, that our prop- erly qualified expert has displaced the pseudo-expert, how are we to avail ourselves of his services ? Our expert is at hand ; what shall we do with him ? Shall we have him called to the witness stand to mystify the jury with his technical learning ? have him describe in detail the technique of all the scientific manoeuvres he has followed in dealing with the case ? ask him to answer cate- gorically a question an hour long which he himself has framed with such delicate shadings of tenuous meaning as to appear to say by implication what he does not wish to say clearly ? and shall we then sit by and listen with delight to the sword-play of technical words between him and the opposing counsel ? No, a thousand times no I If common sense is to be our arbiter, we shall do none of these things. MEDICAL EXPERTS AND THE HOMICIDE. 165 And why not ? Because with all due respect to existing laws, common sense does not recognize the medical expert as a witness in the ordinary sense, to be subjected to the methods which are used in dealing with the ordinary witness. The or- dinary witness is a usually prejudiced observer of some matter of fact in relation to the alleged crime. The fact that he is prej- udiced does not in any way bar him from appearing. He is placed before the jury to enlighten them as to the facts of his observa- tion. He is sworn to tell the truth, but he is very generally un- derstood to be a partisan of one side or the other, and his inten- tion to conceal part of his knowledge, or evade telling it if he can, is perfectly understood. Hence the examination and cross- examination, the badgering and brow-beating, the quarrelling and quibbling of counsel. But what relation has all this to the case of the medical ex- pert ? His position is essentially that of a judge or juror. He must be absolutely unprejudiced, else he is no true expert. He has presented to him for determination certain matters concerning a subject of which he has unusual knowledge. Having reached an opinion concerning them, he desires nothing but to present that opinion fully and freely and, so to speak, impersonally. In the case of the chemical expert, he may never have seen or heard the name of the alleged victim or the accused criminal, or anyone else having direct connection with the case. Often he nred not even know the bearings of his facts in their relation to the criminality or otherwise of any individual. The case as he sees it is an im- personal scientific problem. Having tested this problem to the best of his ability, and recorded his results, he has no further interest in it, as an expert. Is there any reason why this scientific expert should be asked to take the witness stand and turn the court-room into an ex- perimental laboratory ? Is there any reason why he should spend hours holding technical discussions there, in terms which the jury cannot possibly comprehend ? Is it probable that anything the lawyers can say will alter his opinion as to what chemical he found or did not find in the " exhibit"? In short, will any useful purpose whatever have been subserved that could not be secured by merely presenting the result of the finding, in the form of a sworn statement, delivered to the trial judge, and by him submitted to the jury ? 166 THE NORTH AMERICAN REVIEW. What, then, would common sense suggest as the modus oper- andi of utilizing the knowledge of the chemical or pathological expert in a specific case ? The question is not difficult. From the list of qualified experts, as provided to the court by the Civil Service Board, a suitable number (perhaps three) should be se- lected to act as a commission, and subject the " exhibits/' furnished usually by the coroner, to examination or analysis. Having reached a decision, a sworn statement is made by the commission to the proper authorities ; and expert knowledge has then, as a rule, done all it can toward promoting those communal interests which in legal phraseology are spoken of as the " ends of justice." The commission here referred to should be named by a judge, and the finding should be delivered to the judge, not directly to the district attorney. The cases in which an expert alienist may aid the law are somewhat different in character from those just considered. Here a particular individual stands accused of a crime, and the alien- ist must, of course, consider the individual; but his position in this regard is not different from that of judge and jury. As before, the experts shou'd serve in the capacity of a judicial com- mission, not as witnesses in the ordinary sense. Appointment should, of course, be made by the judge. The commission should be empowered to summon witnesses, using all legitimate means to get at the facts. Arrived at a decision, they should make a sworn statement to the court and be discharged. In an excep- tional case, the spokesman of either commission might be called to the witness stand, to be further questioned by the court, for its own enlightenment or that of the jury ; and questions submitted by the counsel might, at the judge's option, be asked by him ; but in no case should any direct question from either counsel be al- lowed, which might seem to indicate that the commission is act- ing for either side, oris anything other than an absolutely impar- tial body, called to aid in the determination of a matter of scientific fact. That the commission is called by the State and paid by the State, no more militates against its impartiality than do the same conditions militate against the impartiality of judge and petit jury. The commission, like judge and jury, is as much for as against the accused ; in short, it is altogether divorced from par- tisanship of any kind. MEDICAL EXPERTS AND THE HOMICIDE. 167 The plan here proposed is substantially that in use in Ger- many. In contrast with current American methods-by which ex- perts are put on the witness stand to play the part of Kilkenny cats -it may seem a very wide departure. Yet a very trifling alteration of the existing law would suffice to make it operative. In fact, surprising as it may seem to any one not familiar with our existing laws, it is nevertheless true that a change of no more than three words in a single section of our criminal code would accomplish all that is here suggested ; a fact which goes to show that our laws sometimes have closer affinity with common sense than they are credited with having. Chapter V., Section 658, of the Code reads as follows : " When a defendant pleads insanity, as prescribed in Section 336, the court in which the indictment is pending, instead of proceeding with the trial of the indictment may [shall] appoint a commission of not more than three disinterested persons [quali- fied experts] to examine him, and report to the court as to his sanity at the time of commission of the crime," etc. After speci- fying the method of procedure for the commission, the section provides that, " If the commission find the defendant insane, the trial or judgment must be suspended until he becomes sane," etc. Here, plainly enough, the substitution of the three words I have introduced in brackets for those I have italicised would effect all the changes suggested above as desirable in connection with the alleged insane criminal and the testimony of the alienist (the status of "qualified experts " having been previously defined). Then we should be spared the humiliating exhibitions by pseudo-experts to which we have so often been subjected, and at the same time we should escape the present absurd practice of asking the ordinary juror to determine a question of mental re- sponsibility, which, in the nature of the case, he cannot be com- petent to determine wisely. It is true that the opportunity would still be open, for the defence in a case in which the commission reported the accused sane, to introduce experts on the witness stand in contradiction of this finding. But the jury would usually have no difficulty in deciding between the unprejudiced verdict of the one set of official experts and the biased testimony of the alleged experts who appeared as partisans under pay of the defendant. 168 THE NORTH AMERICAN REVIEW. III. The phrase "insanity dodge" has passed into current speech, voicing a prevalent impression, as indicating that the plea of insan- ity is often made as a mere subterfuge in murder cases. Doubtless this does sometimes occur, but far less frequently than is imag- ined. It much more often happens that an insane homicide is convicted of murder than that a sane homicide is acquitted on the ground of insanity. Dr. Henry E. Allison, Medical Superin- tendent of the Matteawan State Hospital (New York's official asylum for insane criminals), informs me that there are at present confined in that institution more than seventeen per cent, of all the life convicts in the State ; and this takes no note of about ten per cent, more who were formerly there, but, having become harmless through dementia, have been pardoned and removed to other asylums. None of these, it will be understood, was recog- nized as insane until after conviction of the crime of murder, yet many of them were unquestionably insane at the time of convic- tion. The actual number of these insane life convicts confined at Matteawan at present is forty-one. But in addition to these murderers, there are forty more homicides who are classed as "court cases," having been sent to the asylum without trial, under the provision of the law which I quoted in the previous sec- tion, or another provision of similar import not necessary to be specified here. All these offenders are undoubtedly insane, else they would not be retained at Matteawan. More than that, nearly all of them are chronic and incurable cases. Thus it ap- pears-and the computation is certainly a startling one-that of the homicides confined for life in the State of New York, more than forty per cent, have been officially and correctly adjudged insane. When it is added that, in addition to all these actual homicides, there are at Matteawan sixty-seven cases charged with assault in the first degree, which is an attempted homicide (and not logically different from actual homicide, even though legally distinct) something like a correct idea may be formed of the relationship between insanity and homicide. In the light of these statistics, the question of the disposal of the insane homicide assumes striking importance. What shall we do with him ? Fortunately a clew is again furnished us here MEDICAL EXPERTS AND THE HOMICIDE. 169 by the provisions of the existing Code of Criminal Procedure, Sec- tion 659 of which reads as follows: "If the commission [ap- pointed to inquire into the mental condition of a person under indictment] find the defendant insane, the trial or judgment must be suspended, until he becomes sane ; and the court, if it deem his discharge dangerous to the public, must order that he be, in the meantime, committed by the sheriff to a lunatic asy- lum, and that upon his becoming sane he be re-delivered by the superintendent of the asylum to the sheriff/' Here the italics, of course, are mine. They are introduced to indicate points concerning which modification of the law is desirable. The phrase, "if it deem his discharge dangerous to the public," should simply be omitted: the fact that the insane person is under indictment has proved that he is "dangerous to the public," so that point need not be further considered (for the defence of insanity will seldom be advanced unless the criminal act de facto is admitted). Secondly, the phrase "a lunatic asylum" is not sufficiently distinctive : officially there is no such institution as that in the State of New York to-day, the afore- time "lunatic asylums" having become officially "hospitals for the insane." But that quibble aside, there is one particular " hospital" to which the insane delinquent should be sent, and one only ; that being, of course, a hospital especially provided for insane criminals, such as that at Matteawan, already referred to. Here he must remain until he "becomes sane," which means, in the case of the homicide, usually as long as he lives : for with rare exceptions the insane person who commits a homi- cide is the victim of chronic delusional insanity, of an incurable type. Some provision must, however, be made for the few residual cases in which recovery may take place ; and it has been suggested to me by Dr. Allison himself that the superintendent of the asylum should not be asked to take the sole responsibility of de- termining the condition of such cases. It is always well that re- sponsibility of this grade should be divided, for the good of all concerned. To this end, a clause might be appended to the revised section to the effect that whenever a " court case" of the kind under discussion shall appear to the superintendent to have recovered his sanity, the court shall be notified, and shall ap- point a commission, from the list of eligible experts, to confer 170 THE NORTH AMERICAN REVIEW. with the superintendent, and examine the patient, and render to the court a final decision in the matter. With these slight emendations, which deal with technicali- ties rather than with essentials, the Criminal Code would make satisfactory provision for the vast majority of insane offenders against the law. A strong feature of this plan, not hitherto re- ferred to, is that it provides for the possible contingency of a case in which an accused person shams insanity successfully, de- ceiving the expert commission. In such a case the dissembler will, of course, under the law as proposed, be sent to the asylum for criminals, where his true condition is sure to be revealed presently, and as the indictment against him is still pending, he can without further ado be returned to the court, and "dealt with according to law," it being within the province of the court, if it so elect, when pronouncing sentence, to take into consideration the prisoner's conduct in shamming insanity. The case of the dissembler, therefore, presents no difficulties. A case in which the commission could not reach a unanimous agreement might be treated in the same way. There remains to be considered, however, the highly excep- tional yet possible case of the offender who has been adjudged sane and responsible by the preliminary commission of experts, yet subsequently, when brought to trial, has been acquitted by the jury on the ground of insanity. Such a condition of things would be impossible if the verdict of the commission were made final; but it is said that this would be a violation of the " con- stitutional rights" of the accused. If such be really the case (and here of course common sense must bow to authority), then there is no practicable way of guarding against a possible miscarriage of justice. A slight change of the present law would make it obligatory to send the person thus acquitted to the hospital for insane criminals, but if he were not really insane he could not be retained there ; and as ex hypothesi he has already been declared sane by the expert commission (who surely are far more likely to be right than the jury) his early discharge from the asylum would in many cases follow as a matter of course. The suggestion has, indeed, been made that under such circum- stances a sentence of determinate length should be pronounced (a minimum of ten years and a maximum of twenty has been mentioned where homicide is the offence). But aside from the MEDICAL EXPERTS AND THE HOMICIDE. 171 fact that such a provision must be of doubtful constitutionality, I have high authority, in addition to my own opinion, for assert- ing that it would be illogical and calculated rather to defeat than to promote the ends it aims at. It would be illogical, because it would ostensibly immure an innocent (i. e., acquitted) person on account of his mental abnormality solely, yet would keep him confined at least ten years even were he to completely recover long before the expiration of that time. It would some- times defeat the end it aimed at, because in some cases the jury might be right, the accused person being actually a homicidal lunatic, and remaining such at the close of the maximum period of sentence; at which time, nevertheless, it would be obligatory to release him. More than one homicide at the Matteawan Hos- pital has been in confinement over twenty years, yet is still a dangerous lunatic; indeed, as already stated, most insane homi- cides are incurable, and are likely to continue dangerous as long as they live. All things considered, then, it seems impossible to avoid the consequences of an occasional mistaken verdict-unless, indeed, that Utopian day shall come when we are wise enough to pro- nounce indeterminate sentence on all violators of the law, regard- less of their mental condition. But we are at least justified in hoping, I believe, that the instances would be very exceptional and rare in which, on the one hand, a commission of experts would fail to recognize actual insanity; or, on the other hand, in which a jury would be seized with an uncontrollable impulse to set its judgment against that of the commission as to this technical point. The very exceptional instances in which the latter did occur must be set down as illustrations of imperfections inherent in the jury system ; they cannot properly be charged against the method of utilizing expert knowledge above proposed. IV. In conclusion, let me briefly recapitulate the essence of the foregoing suggestions. In attempting to determine how we shall get our medical expert, I have urged that the real expert should be sifted from the pseudo-expert by the processes of searching civil service regulations. As to the proper function of the ex- pert, once he is secured, I have urged that he should act as an advisory commissioner or referee, not as a witness under fire before 172 THE NORTH AMERICAN REVIEW. the jury. In the third place, I have urged that the insane delin- quent should be confined in an asylum especially provided for in- sane criminals, for a period determinate only upon his complete restoration to mental health. I have shown that in the State of New York a very trifling change of the existing Criminal Code (in substance, the making mandatory of provisions that now are optional) would effect these ends, and in the great majority of cases tend to promote the communal interests. The laws of most other States are not very different and could with equal ease be adapted to the pro- posed forms of procedure. I have made my suggestions specific because I wish them to be entirely practical. That the plan I have outlined is not ideal I am fully aware. Had I chosen, I could easily have made it much more nearly so, in a single sentence, by saying : Let every vio- lator of the laws be visited with an indeterminate sentence, regard- less of the mental condition of the individual. But I am far too little of a visionary not to recognize the utter inutility of such a suggestion as this at the present stage of our social evolution. We shall come to it some day, of course-some day when the old puritanical " eye for eye " dogma, which still so largely informs the law, has been outgrown. That may happen fifty or* a hun- dred years from now. But meantime, waiving all such twentieth- century doctrines, I offer the above suggestions to persons inter- ested in medical jurisprudence everywhere, and particularly to legislators, as common-sense suggestions, capable of being made practicable at once-ideals for the future, practicality for the present. Half a loaf is better than no bread. Henry Smith Williams.