As Physicians, Surgeons, and others conversant in medicine and chemistry, are constantly called upon to give testimony in Courts of Justice, it is necessary for us to enter upon this subject of the law of evidence, so far as it immediately affects the medical witness; it is proper that he should understand when he is bound to appear, and on what terms, and it may be useful for him to be prepared, by some previous knowledge of the usual course of examination, for the difficulties and objections which may arise in the progress of it. A scientific witness, fully acquainted with the subject in dispute, and by his particular knowledge well qualified to inform the Court on the most important points, is too frequently rendered miserable in himself, and absolutely ineffective to the ends of justice, by the diffidence which a man of real acquirement generally feels, when impressed at once with the novelty of his situation, a sense of the importance of the duty which he is about to perform, and a consciousness that the truths which he is about to utter, may be obscured, suppressed, or perverted, by technicalities for which he is unprepared with any defence; we do not mean to arraign the present forms of examination in general, when we assert that some abuse in practice too frequently places the witness in as painful a situation, as if he were himself a criminal.

Some knowledge of the law of evidence is the best security against this inconvenience; we propose therefore to lay down a few general rules on the points most likely to occur, and to refer our readers for more particular information to those works which expressly or incidentally treat on this subject.^[230]

It is necessary in the first place to consider how the attendance of witnesses is to be compelled by process, under what terms they must appear, their liabilities if they fail to appear, and their duties when in Court.

The writ of Subpoena ad testificandum, is the ordinary process of the Courts for compelling the attendance of witnesses; by this the intended witness is required to appear at the trial at a fixed time and place, to testify what he knows in the cause, under the penalty of £100 to be forfeited to the king.

Four witnesses may be included in one subpoena, but a ticket containing the substance of the writ (which is to be shewn at the same time) is as effectual service as the writ itself, (5 Mod. 355). The service must be upon the witness in person, (Cro. Eliz. 130) and within reasonable time, before the trial, respect being always had to the residence and circumstances of the party.

In Civil suits, the reasonable expense of the witness in going to, staying at, and returning from the place of trial, must be tendered at the time of serving the subpoena: (5 Eliz. c. 10, f. 12): if this is not done, the Court will not grant an attachment against the witness (Fuller v. Prentice, 1 H Bl. Rep. 49) not even if he be present in Court, and refuse to be sworn; (Bowles v. Johnson, 1 Bl. Rep. 36). But where a witness lives within the weekly Bills of Mortality, it is usual to leave only one shilling with the subpoena: this limitation is not created by the statute of Elizabeth, nor have we been able to trace its origin.

The Judge will not compel a witness to be sworn till his reasonable expenses are paid him. (ubi supra.)

If a witness fail to attend on subpoena, without sufficient excuse, he is liable to be proceeded against in one of three ways. 1. By attachment for a contempt of the process of the Court, from which even a Peer is not exempt. 2. By a special action on the case for damages at common law. 3. By an action on the Statute of Elizabeth for the penalty of ten pounds (5 Mod. 355), and for the further recompense recoverable under the Statute; but this must be by the party aggrieved, and where the further damage has been assessed by the Court, out of which the process issued. Formerly no remuneration was given to witnesses attending the trial of criminal causes, yet they were bound to appear unconditionally, for “Criminal prosecutions are of public concern, and a witness summoned to appear on a criminal trial has a public duty to perform; and he ought not to be at liberty to make a bargain for his appearance, as he may in the case of a civil suit, where only private interests are involved.” (Phill. on Evid.). But as such attendance must frequently have been productive of considerable hardship, especially to poor persons, the Statute 22 Geo. 2. c. 3. s. 3. enacts, that when any poor person shall appear on recognizance to give evidence in cases of larceny or felony, the Court may order the Treasurer of the County to pay such person, such sum as to the Court may seem reasonable: as this Statute extended only to poor persons who appeared on recognizance, and not to such as appeared on subpoena, it was afterwards deemed reasonable by the Legislature, that every person so appearing on recognizance, or subpoena, should be allowed his reasonable expenses, and also in case of poverty, a satisfaction for his trouble and loss of time. (Phill. on Evid.). The Statute 18 Geo. 3. c. 19. s. 8. therefore enacts, that “Where any person shall appear on recognizance or subpoena to give evidence as to any grand or petit larceny or other felony, whether any bill or indictment be preferred or not to the Grand Jury, it shall be in the power of the Court (provided the person shall, in the opinion of the Court, have bon fide attended in obedience to such recognizance or subpoena,) to order the Treasurer of the County or Division, in which the offence shall have been committed, to pay him such sum as to the Court shall seem reasonable, not exceeding the expenses, which it shall appear to the Court the said person was bon fide put unto by reason of the said recognizance and subpoena, making a reasonable allowance, in case he shall appear to be in poor circumstances, for trouble and loss of time.” These Statutes apply only to cases of felony; on prosecutions therefore for misdemeanors, and in other cases not specially provided for by Act of Parliament, the Court is not authorized to order a compensation to witnesses for their attendance; (7 T. R. 377: see also Burn’s Justice, tit. County Rate). As these Acts, and the 45th Geo. 3. c. 92. which compels the attendance of witnesses in any part of the United Kingdoms, their expenses being first tendered, do not meet many possible and probable cases of extreme hardship, it is to be wished that some further enactments may be made on this subject: it has indeed been doubted whether the obligation on witnesses in criminal causes is as peremptory as we have stated, (1 Chitty on Criminal Law, p. 612), but the weight of authority appears to be on the other side. Mr. Serjeant Hawkins, 2 P. C. p. 620, observes that “to persons of opulence and public spirit this obligation cannot be either hard or injurious; but indigent witnesses grow weary of attendance, and frequently bore their own charges to their great hindrance and loss;” and Sir Mathew Hale (2 P. C. 282) complains of the want of power in Judges to allow witnesses their charges, as a great defect in this part of judicial administration.

Our present object is to show that whatever hardship may exist in this point in general, it presses with peculiar severity on medical practitioners,^[231] to whom time is most valuable, and the nature of whose profession requires that they should be continually within reasonable distance of their ordinary place of residence; to them therefore the tender of mere traveling expenses becomes a very insufficient compensation: the same policy which exempts them from attendance on other public duties may suggest the propriety of allowing them some adequate indemnity when their assistance becomes indispensable, and this not only for their private and immediate advantage, but ultimately for the public benefit; for if properly remunerated for their attendance, practitioners of a superior class would not be unwilling to devote some portion of their time to the assistance of public justice; whereas under the existing system it is notorious, that all who can, will avoid the burthen; and the duty therefore devolves on those who are least competent to its execution: this evil is particularly apparent on Coroner’s Inquests, where the opinion of a shop-boy has often been allowed to determine a question in limine, which properly investigated, might have required the first science to obtain a satisfactory result.

As attendance is more burthensome on a professional man than on others, so also it is more frequently called for; men in general can only be summoned as witnesses when they have, or are reasonably supposed to have, cognisance of the particular facts in question; and he may therefore deem himself peculiarly unfortunate or imprudent, who is often present at such scenes as give rise to criminal investigation; but the medical practitioner, in addition to his liability of being called in for his assistance, and so becoming acquainted with facts, may also be summoned on matters of opinion; those therefore who stand highest in public estimation as men of science and research, will be most frequently burthened with the execution of painful and unprofitable duties; we do not believe that they will shrink from the performance of them when necessary, but we may express a hope that they may be rendered as little burthensome as their nature will allow.

Great difficulties must always arise in the examination of a medical or chemical witness, where the examining party is uninformed or at least very partially acquainted with the science in question; for it is next to impossible for Counsel so to frame their examination of a scientific witness, as to elicit the whole truth unless they are, by previously acquired knowledge, acquainted with the bearings of each answer upon the case which they are maintaining; and though there are a few instances of persons of such superior talent, that they can collect from the mere information of their briefs, so much knowledge as will enable them to perform this duty, with credit to themselves and satisfaction to their clients and the public; yet such instances are rare, and even those most gifted will admit that there is a most material difference between examining a witness on matters of fact of which all persons who have applied themselves to the laws and nature of evidence may be competent judges, and the examination of abstract opinions, and speculations of philosophy or physics, where the examiner can as little follow the reasoning of a witness as if he spoke some foreign and unknown language. For it is impossible within the compass of any ordinary viva voce examination to elicit all the points on which explanation may be necessary, or to remove all the doubts which may give occasion to future controversy; hence questions of this kind are seldom determined at the first hearing, but are repeatedly brought before the Courts in the form of new trials; the cases of Severn, King & Co. against several Fire Insurances Offices, which in part suggested the undertaking of the present work, may serve as an elucidation of this point. The causes were conducted by professional men of the first eminence, the Judge who presided well known for his love of science, and from having attained more knowledge in several branches of natural philosophy, than can usually be acquired by those whose time is engrossed by severer studies; the witnesses were among the best Chemists of the day, yet the question (simple as it might at first appear) whether oil or sugar at certain temperatures, and under certain circumstances, should be considered the more inflammable substance, occupied three days on the first and six days on the second trial. Notwithstanding which, a third trial took place involving the same question, and controversial pamphlets were published on both sides on the nature and supposed contradictions of the evidence.

It has been supposed that medical practitioners may avail themselves of the privilege enjoyed by legal advisers,^[232] and that they are not bound to divulge the secrets of their patients, reposed in them in the course of professional confidence;^[233] undoubtedly this confidence ought not to be violated on any ordinary occasion, but when the ends of justice absolutely require the disclosure, there is no doubt that the medical witness is not only bound, but compellable to give evidence; ever bearing in mind that the examination should not be carried further than may be relevant to the point in question; of this the Court will judge, and protect the witness accordingly. In the celebrated trial of the Duchess of Kingston, before the House of Peers, (11 Harg. St. Tri. 243) this point of medical liability was raised by Mr. CÆsar Hawkins, and determined by Lord Mansfield in the following words: “I suppose Mr. Hawkins means to demur to the question upon the ground, that it came to his knowledge some way from his being employed as a surgeon for one or both parties; and I take for granted, if Mr. Hawkins understands that it is your Lordships opinion that he has no privilege on that account to excuse himself from giving the answer, that then, under the authority of your Lordships judgment, he will submit to answer it: therefore to save your Lordships the trouble of an adjournment, if no Lord differs in opinion, but thinks that a Surgeon has no privilege to avoid giving evidence in a Court of Justice, but bound by the law of the land to do it; if any of your Lordships think he has such a privilege it will be a matter to be debated elsewhere, but if all your Lordships acquiesce, Mr. Hawkins will understand that it is your judgment and opinion, that a Surgeon has no privilege, where it is a material question, in a civil or criminal cause, to know whether parties were married, or whether a child was born, to say that his introduction to the parties was in the course of his profession, and in that way he came to the knowledge of it. I take it for granted, that if Mr. Hawkins understands that, it is a satisfaction to him, and a clear justification to all the world. If a Surgeon was voluntarily to reveal these secrets, to be sure he would be guilty of a breach of honour, and of great indiscretion; but, to give that information in a Court of Justice, which by the law of the land he is bound to do, will never be imputed to him as any indiscretion whatever.” The examination consequently proceeded.

The observations of Mr. Haslam, in his work on Medical Jurisprudence as it relates to Insanity, (London 1817) are so pertinent to our present subject that we shall give them in his own words: “The important duty which the medical practitioner has to perform, when he delivers his testimony before a Court of Justice, should be closely defined, conscientiously felt, and thoroughly understood,—his opinion ought to be conveyed in a perspicuous manner; he should be solemnly impressed that he speaks upon oath, the most sacred pledge before God between man and man—and that the life of a human being depends upon the clearness and truth of his deposition: he is not to palm on the Court the trash of medical hypothesis as the apology for crime; neither should the lunatic receive his cure at the gallows by the infirmity of his evidence; but above all, his opinion should be so thoroughly understood by himself, so founded by experience and fortified by reason, that it may resist the blandishments of eloquence and the subtil underminings of cross examination. The Physician should not come into Court merely to give his opinion—he should be able to explain it, and able to afford the reasons which influenced his decision—without such elucidation opinion becomes a bare dictum.”

“It is to be regretted that on many occasions, where several medical practitioners have deposed, there has been a direct opposition of opinion:—this difference has sometimes prevailed respecting insanity, but more frequently in cases of poison. It is not intended to account for this contrariety of evidence; much will depend on the sagacity of the Counsel to institute the proper enquiries, and still more will be incumbent on the medical evidence, in order to explain and establish his testimony.

“The lawyer’s object is the interest of his employer, and for the fulfilment of his duty he is frequently compelled to resort to a severity of investigation which perplexes the theories, but more frequently kindles the irritable feelings of the medical practitioner. This distrust on the part of the lawyer, however unpalatable, is fully justified, most witnesses going into Court with the preconcerted intention of proving to a certain extent:—and those most conversant in the history of human testimony, have been extremely scrupulous of admitting it as uniform truth until it has been carefully sifted. Guarded with these precautions, and armed with professional experience, the medical practitioner may approach the tribunal of justice with confidence and advantage to the cause of Truth. However dexterous he may shew himself in fencing with the advocate, he should be aware that his evidence ought to impress the judge and be convincing to the jury.” Their belief must be “the test by which his scientific opinion is to be established. That which may be deemed by the medical evidence clear and unequivocal, may not hit the sense of the gentlemen of the long robe, nor carry conviction to the jury.”

There is a natural propensity in human nature, from which the most honorable minds are not free, to view all questions through the medium of some preconceived opinion; in law and politics it is every day evident, in physic and in science it is too often apparent. Hence our law has wisely contrived its modes of viv voce examination, in which the judge, the jury, and the counsel, on both sides, are equally empowered to sift the truth, and thus counteract the leaning which any witness may be supposed to have towards the party producing him: a foreign writer of celebrity objects to this method, and prefers the mode adopted generally on the continent of requiring written reports or depositions; we leave our readers to conclude how liable such documents are, especially with a people of lively imagination, to become controversial pamphlets, straining on either side for victory, and not for truth.

As to the mode in which a medical witness should deliver his evidence, very different advice appears to have been given by different authorities; while some impatient of delay, and dreading the arts of examination, recommend their pupils or readers to open at once all the stores of their reasoning and information; others, fearing the effect which cross-examination may have on nervous or embarrassed witnesses, advise that no more shall be disclosed than categorically meets the question of the counsel; and to this we incline, with this difference, that, as we should deem too costive a retention of the truth as blamable as the flow of garrulity with which we have sometimes seen a court overwhelmed, we recommend the witness to steer a middle course, first answering patiently, distinctly, and tersely, the questions put by the Counsel on both sides, the Court and the jury; and if none of these elicit the whole truth, and any material point remains to be disclosed, the presiding judge will always admit and gratefully receive the additions or explanations which may be necessary to the ends of justice.

The witness is next to consider, what is and what is not evidence: we cannot follow this subject in all its bearings, nor indeed is it here necessary, a few points must however be remembered; and first of notes; these if taken upon the spot or immediately after a transaction, may be used by the witness to refresh his memory; and as to dates, numbers, or quantities, it is generally expedient to have them; the notes should be original, not copies; if there be any point in them which the witness does not recollect except that he finds it there, such point is not evidence, for the notes are only to assist recollection not to convey information.

The witness must relate only that which he himself has seen or observed; that which he has heard from others is not evidence as coming from him; except indeed where some expressions or declarations of the parties concerned have become a part of the res gesta. but the declarations of a dying man are evidence when related by a third person on oath, though the party making them was not sworn, for the law presumes that the solemnity of the occasion may dispense with the form, and that a man, trembling on the brink of eternity, will never risk salvation by falsehood. To give this weight to a declaration, it is necessary that the party should believe himself to be dying; Mr. Justice Bailey, is reported to have said, that the party must be satisfied that recovery was impossible: we think the reporter must have been mistaken; for such a rule would exclude all such declarations; hope is the latest faculty of the human mind. “I am better,” has not unfrequently been the last articulation of expiring nature.

How far and in what cases opinion is evidence, is next to be considered; in ordinary matters where, from a statement of facts, the jury, in the exercise of sound and ordinary understanding, are capable of arriving at a just conclusion, the opinion of a witness is neither requisite or admissible; but in matters of science it is otherwise, provided that he backs his opinion by such reason as may be satisfactory to the understanding of his hearers; and this is the principal qualification of a medical witness, that he make himself intelligible to ordinary comprehensions.

No man is bound to give any evidence by which he may render himself liable to any criminal prosecution. At the Old Bailey Sessions, in June, 1821, Mr. George Patmore was tried for the murder of John Scott, in a duel. Mr. Pettigrew, (a surgeon,) was the first witness called.

Mr. Justice Bailey.—Mr. Pettigrew, I think it necessary to give you this caution, if you think the evidence, which you are about to give likely to expose you to a criminal prosecution, you are not bound to give it.

Mr. Pettigrew. My Lord, I am not competent to form any opinion of my legal guilt; I have not taken the part of principal or second. The part which I have taken was merely to exercise my professional duty; in that I do not think there is any moral guilt.

Mr. Justice Bailey. If you went (knowing a duel was to take place) for the purpose of giving surgical assistance, I apprehend that you are liable to a criminal prosecution.

Mr. Pettigrew. Then, my Lord, I must decline answering any questions.

Mr. Justice Bailey. I recollect having seen a surgeon of eminence tried in this court, on a similar occasion.

Neither Mr. Pettigrew, nor his assistant, were examined.

Dr. Darling, who had attended the deceased after he had received his wound, deposed that he heard Mr. Scott on his death bed say——

Mr. Justice Bailey. Did Mr. Scott at that time think himself in danger: did he give up all hopes of recovery?

Dr. Darling. No. To the last he entertained hopes of recovery.

Mr. Justice Bailey. The declaration made by a dying man cannot be received as evidence, unless the party at the time of making it were satisfied that recovery was impossible.

We have before noticed the limitation with which we believe this supposed rule must be taken.

With the exception of dying declarations, all evidence in criminal matters, must be upon oath, therefore the affirmation of a quaker cannot be received on a coroners inquest.^[234] In the too celebrated case of the Oldham Inquest on the body of John Lees, Mr. Earnshaw, a quaker surgeon,^[235] who had attended the deceased, though much urged refused to be sworn, and his testimony was consequently rejected; a paper was subsequently delivered to the jury, containing the matter of his observation; this was very properly resented by the Coroner, as an illegal attempt to influence the jury, who by their oaths were bound to admit no information which wanted that legal sanction. While we were writing this article we were surprised to find that a Coroner for the County of Surry had permitted the letter of a Physician to be read to the jury, as evidence that a person deceased was of unsound mind; and on this evidence, (for we can scarcely suppose that the servants deposition to rheumatic headaches, was allowed to weigh,) a verdict of insanity was returned: we shall have subsequent occasion to comment on this mala miserecordia.