DEPARTMENT OF HYPOTHETICAL PSYCHIATRY |
| DIRECTOR Dr. Haroun Manglapus |
ABOUT
On the whole, therefore, we are inclined to believe that, with all its imperfections, the present method of getting the opinions of experts, must continue to be used. The evils of which our author complains would be lessened, we apprehend, if the expert were cordially welcorned as an effective helper in the cause of justice, instead of being regarded with the sort of feeling to which the late Lord Campbell gave utterance, in the famous Bainbrigge will case, when he said to the medical witnesses, " You may go home to your patients, and I wish you may be more usefully employed there than you have been here." Such a display of judicial rudeness is hardly conceivable in this country, even in those remote settlements where jury men have to be hunted down, and counsel enforce their arguments by throwing inkstands at each other's heads, but it is a fair inference from our author's statements, to go no further, that the feeling itself is not rare on the American bench. There is but one effectual remedy for the evils in question. Let the court and counsel be themselves correct in the matter, recognizing and respecting the rightful function of the expert, and then they will be far less disposed to find fault with him.
On one point respecting experts, we are glad to agree with our author. He considers the old method of eliciting the opinions of the expert by letting him speak upon the actual evidence, as far preferable to any of those which have been adopted since, although uniformity of practice is highly important. These "modern refinements," as he calls them, have been attended, in his judgment, with no " practical results," and he believes that " the hypothetical mode of putting scientific inquiries to the experts does not essentially differ from the straight-forward, common sense mode of putting the question." He remarks incidentally, however, that the present writer, in another place, has given more weight to these "judicial refinements" than they are fairly entitled to. This is very true, certainly, but inasmuch as they who make them, decide the question of their weight, for all practical purposes, it is left for others to take up the matter as they find it. He says himself they lead to a lack of uniformity, and that, surely, is no light result, as no one can deny who has witnessed these refinements in actual practice. More than once we have seen a whole day consumed in ineffectual attempts to put the question to the experts in a manner that would satisfy both court and counsel, the strife being ended, at last, by the peremptory order of court, to which exceptions were taken by counsel on one side or the other. A " judicial refinement," which thus delays an important trial, not exceptionally, but habitually in a greater or less degree, cannot be justly regarded as one of little weight, We do not mean to discuss the merits of the general question, because it could do no good. The old rule is abandoned. That may be considered as settled, however unsettled may be its substitutes. After the inconvenience and absurdity of the latter have sufficiently wearied and disgusted the bench and the bar, but, not till then, the old rule may be reestablished.