Victorian CSI

  Contents

  Title page

  Introduction

  Part I Personal Identity, Age and Sex

  Part II Persons Found Dead

  Chapter I Real and Apparent Death, Sudden Death, Survivorship

  Chapter II Drowning, Hanging, Strangulation, Suffocation

  Chapter III Wounds and Mechanical Injuries

  Chapter IV Death by Fire, Spontaneous Combustion, Death by Lightning, By Cold, By Starvation

  Part III Toxicology 204

  Chapter I Definition of a Poison, Action and Classification of Poisons

  Chapter II Evidence of Poisoning

  Chapter III Methods of Procedure in Cases of Poisoning

  Copyright

  PRINCIPLES

  OF

  FORENSIC MEDICINE.

  INTRODUCTION.

  THE State avails itself of the knowledge, experience, and skill of the medical man for three distinct purposes:—1. For the care of soldiers and sailors, prisoners, paupers, lunatics, and others for whose safety it makes itself responsible; 2. As officers of health and analysts; and 3. As skilled witnesses in courts of law.

  The duties of the medical man in the first of these capacities are such as devolve upon him in the ordinary practice of his profession; but he is expected to prevent as well as to cure disease, and to add to professional skill administrative ability.

  As medical officers of health, however, and as witnesses in courts of law, medical men have duties to perform for which the ordinary practice of their profession affords no adequate preparation; medical education, till of late years, no proper training; and medical literature no sufficient guidance.

  The distinctness, importance, and difficulty of these duties led at length to the establishment of a distinct science, taught in separate courses of lectures, treated in separate works, and engaging the attention of men more or less separated and set apart for the practice of the corresponding art.

  This new science either embraced all the duties the medical man may be required to perform on behalf of the State, in which case it received the name of Political or State Medicine; or it was divided into two sciences, the one known as Hygiene or Public Health, the other as Forensic Medicine, Juridical Medicine, Legal Medicine, or Medical Jurisprudence.

  As regards the second of these, the term Forensic Medicine expresses with sufficient clearness the application of medical knowledge to legal purposes, and consequently it is used in the title of this work. The term medico-legal is also in common use, as in the phrases “medico-legal knowledge,” “medico-legal experience,” “medico-legal skill.”

  It is to be regretted that this division of State Medicine has not made the same progress in this country as that of Hygiene or Public Health, a fact doubtless due to the difficulty of obtaining practical experience by those who are teachers of the subject.

  In reference to the first of these sciences, Hygiene or Public Health, it is no part of our present duty to deal, but be it noted that in this department of State Medicine a registrable qualification is now obtainable only after compliance with a strict curriculum of study, and the possession of such qualification is necessary for all the more important Public Health appointments.

  The history of Forensic Medicine is that of most other sciences. Necessity or convenience gives birth to an art practised by persons more or less skilful, without guidance from general principles; but its importance, and the responsibility attached to the practice of it, soon create a demand for instruction, oral and written, which gradually assumes a systematic form. Thus it was that the Science of Medicine sprang from an empirical art of healing. In like manner, the Science of Forensic Medicine took its rise in the necessity of bringing medical knowledge to bear on legal inquiries relating to injuries or loss of life; the medical witness being at first without guidance in the performance of his duty, and so continuing till a growing sense of the important bearing of his work on the interests of society, and on his own reputation, created a demand for instruction that could not fail of being supplied. Cases were accordingly collected, arranged, and commented on, illustrative facts sought after, special experiments devised and performed, till at length the medical witness received in books and lectures the same distinct instruction as the physician or surgeon at the bedside had already derived from written or oral teaching in the theory and practice of medicine, or of surgery.

  But the importance of medical testimony received an earlier recognition from Continental Governments than from the public or the medical profession; for the first State recognition (1507) anticipated by nearly a century the first medico-legal treatise (1597); and the first appointment of medical men to perform medico-legal duties followed soon after, in France, in 1603.*

  The history of Forensic Medicine in England is of more recent date. It begins with the publication, in 1788, of Dr. Samuel Farr’s “Elements of Medical Jurisprudence,” and the subject was first taught in lectures at Edinburgh, in 1801, by Dr. Duncan. sen., the first professorship being conferred by Government on his son in the University of that city in 1803. In England the first professorship was created in King’s College, London, Sir Thomas Watson being appointed to the chair in 1831. The new science soon justified the distinction thus conferred upon it, and made good its claims to more general recognition. It is now taught in all our medical schools, and recognised by the examining bodies; its principles are being constantly applied in our courts of law; and England continues to contribute her fair share of observation and research towards its extension and improvement.

  The application of the principles of the science—in other words, the practice of it as an art—devolves, for the most part, on the medical practitioner. But those specially versed in the entire subject, or in important parts of it (such as Toxicology), or eminent in certain branches of practice (such as midwifery and the treatment of the insane), are occasionally summoned to give evidence.

  There are many reasons why the medical man should approach this class of duties with apprehension. He is conscious of the importance that attaches to his evidence; he is wanting in the confidence which a more frequent appearance as a witness would impart; he is painfully alive to the unstable foundation on which many medical opinions rest; he knows that it is not easy in practice to observe the rules of evidence with which in theory he may have made himself acquainted; and, above all, he shrinks from the publicity attendant on legal proceedings, the unreasonable licence allowed to counsel, and the disparaging comments of the Bench itself.

  Sympathising in these reasonable apprehensions, some writers of eminence, and most authors on Forensic Medicine, have tried to prepare the medical witness for his duties by setting forth in more or less detail the precautions he should observe both prior to and during his attendance in court; and by special directions for conducting medico-legal inquiries under the heads of “Post-mortem inspection,” “General evidence of poisoning,” “Unsoundness of mind,” etc.; the general precautions to be observed in the witness-box being made the subject of distinct treatment under the title Medical Evidence.

  Before treating of the duties of the medical witness, it may be well to show the number of cases that occur year by year in England and Wales of a class to give rise to medico-legal inquiries. The following figures are extracted from the Annual Report of the Registrar-General for the year 1892:—

  The following special causes of death were recorded in the year 1892:—

  In the same year (1892), the deaths by accident or negligence were distributed between the sexes as follows:—Poison, men 340, women 174; Gunshot, men 95, women 7; Cuts and stabs, men 20, women 9; Drowning, men 2231, women 406; otherwise, men 1222, women 535.

  The suicides were distributed as follows:—Poison, men 177, women 124; Gunsho
t, men 257, women 4; Cuts and stabs, men 393, women 108; Drowning, men 343, women 241; Hanging, men 532, women 139; otherwise, men 87, women 18.

  In the year 1892 the premature, sudden, and violent deaths gave rise to 32,254 inquests, and as the qualified practitioners in England and Wales fall far short of this number, it follows that, if medical evidence were called for at every inquest, and the duty of attending at inquests were distributed equally, each member of the profession would attend at least one inquest every year.

  The committals for trial arising out of these 32,254 inquests amounted to 180, of which 76 were for murder and 104 for manslaughter. In 2545 instances the death was returned as suicidal.

  The number of cases requiring medical evidence in our higher courts of law may be judged of approximately from the printed returns of commitments for trial for offences against the person. In the year 1891–2 these amounted to 1859, and comprised—

  If we add to the occasions for medical evidence arising out of these crimes, the civil cases in which skilled medical evidence is required, and proceedings in respect of lunatics, the occasions on which medical men are summoned to courts of law, either in the service of the State or on behalf of individuals, will appear very considerable—certainly numerous enough, and important enough in themselves, to justify all the attempts which have been made to construct a science of Forensic Medicine, to teach it systematically in books and lectures, and to draw up a code of instructions for the guidance of the medical witness in the performance of his duties.

  MEDICAL EVIDENCE.

  The medical man may, like any other person, be summoned as a witness merely to state facts which have come within his knowledge, in which case he will occupy the position of an ordinary or common witness; or he may be called to express an opinion upon facts observed by him as a medical man at the request of friends or others, or upon the views held by other skilled observers in reference to such facts; in each of these cases he becomes a skilled or expert witness.

  In performing these duties there are certain precautions which the witness ought to observe, and certain legal requirements of which he should not be ignorant.

  1. He should “use his best endeavours that his mind be clear and collected, unawed by fear, and uninfluenced by favour or enmity.” (Percival.) He will not find it easy to maintain this impartial frame of mind when the crime alleged is one of unusual enormity; when popular feeling runs high for or against the accused; or, in times of public agitation, when his evidence tends to discredit some popular movement or deep-rooted prejudice. Nor, when he is engaged as a skilled witness, or expert, for the prosecution or for the defence, must he deem himself free from the risk of partiality, even though, after hearing all the facts which should influence his opinion, he feels that he can conscientiously give his evidence in support of the side for which he is retained.

  2. The medical witness requires to be specially cautioned against expressing an opinion on the general merits of the case under inquiry, thus offending against an admitted principle of English law, that “when scientific men are called as witnesses, they are not entitled to give their opinion as to the merits of the case, but only as to the facts proved on the trial.

  3. A special caution is also required against indulging a feeling of misplaced humanity, or an equally misplaced condemnation of the law on the score of undue severity. Both these feelings too often found expression in former treatises on the lung-tests and in early trials for infanticide. But the witness should understand that he is not responsible for the consequences to which his opinions may lead, provided always that they are the result of cautious inquiry and due reflection. Percival accordingly treats “the dread of innocent blood being brought upon us by explicit and honest testimony,” as “one of those superstitions which the nurse has taught, and which a liberal education ought to purge from the mind.”

  The witness approaching his duties with a mind thus free from bias, requires some instruction as to the mode in which his evidence should be given.

  1. Bearing in mind the distinction just laid down between a common and a skilled witness, he should be cautious not to obtrude his opinions when facts only are required of him, nor dogmatically to assert as facts things which are merely matters of opinion. He should answer the questions put to him, whether by counsel, court, or jury, clearly and concisely, and if these do not elicit the whole truth, it is quite competent for him to offer to the court such explanation as he may think necessary.

  2. His statements should be made, and his opinions expressed, in the plainest and simplest language; and he should avoid as much as possible all technical terms, and all figurative and metaphorical expressions—e.g., a blood clot is a better witness-box expression than an apoplectic extravasation, and a bruise is a phrase better understood than a contusion.

  3. The medical witness ought also to abstain from quoting authorities in support of his opinions; for though the rule of exclusion has not always been rigidly acted on, the common usage of our courts of law is certainly to disallow these appeals. Nor is this exclusion open to any serious objection, for the witness is supposed to make himself master of the views of the most eminent writers on the subject matter of his evidence, and to use them as aids and guides to his own special inquiries.

  But though the witness may not cite authorities, he may be asked whether A. or B. is an esteemed authority with his profession, and whether he (the witness) coincides with some opinion expressed in his works. If the witness answers in the affirmative, he becomes the exponent of the opinion to which he thus gives his assent. The medical witness should carefully avoid all flippancy of manner and exaggerations in language, and give his evidence in a concise, plain, and clear manner.

  The foregoing observations relate chiefly to the mode in which the witness should give his evidence. The precautions to be observed in order that his evidence may be admissible still remain to be considered, under the following heads:—

  1. Notes.—When observing any facts which, at a future time, may become the subject-matter for legal inquiry, the medical man should not trust to his memory, but commit them to writing, either on the spot, or as soon as possible after the transaction to which they relate. If (as in performing a post-mortem examination) it is necessary to resort to dictation, the notes of the amanuensis should be immediately examined and corrected.

  The witness may use these notes in court to refresh his memory, but not to supply its place. If they were not made till some time after the events to which they refer, or if, having been made at the proper time, they have been entirely forgotten, they will not be admissible.

  2. Confessions.—A culprit may make a confession of guilt to his medical attendant. This, to be admissible in a court of law, must be free and voluntary, uninfluenced by threat, promise, or bribe. No sort of inducement should be held out to make it, no leading questions should be put, and no comments made; but the medical man should reduce the statement to writing as soon as possible, read it over to the person confessing, obtain his signature to it, and countersign it himself.

  At the same time the greatest care should be taken to ascertain the bodily health and mental state of the party making the confession. The necessity of this caution has been amply proved by cases in which, during febrile attacks, or after prolonged exposure and hardship, as well as in cases of delusional insanity, confessions have been made of murders and other heinous crimes which had never been committed. In times now happily passed away, innocent persons, under like conditions of body and mind, made confession of impossible crimes, such as witchcraft.

  3. Death-bed or Dying Declarations.—These are admitted as evidence in cases of homicide, where the death of the deceased is the subject of the charge, and the circumstances of the fatal injury the subject of the declaration. It is assumed that the declarant having lost all hope of recovery, is induced to speak the truth by considerations as powerful as an oath administered in a court of justice. It is not necessary, however, that he should express his convict
ion. It may be inferred from the nature of the injury, or from other circumstances of the case. But if any hope whatever be entertained, or may be inferred to exist, whether it be spontaneous or on the suggestion of others, death-bed declarations cannot be received in evidence.* The case of Reg. v. Mitchell, March 22, 1892 (Mr. Justice Cave, Nottingham Assizes), is interesting as showing how strict the law is in reference to the admission of dying declarations. The prisoner was indicted for the murder of a woman by procuring a miscarriage by the use of instruments or other means, death resulting therefrom. It was held that upon an indictment for murder or manslaughter, a statement giving the substance of questions put to, and answers given by, the deceased person is not admissible in evidence as a dying declaration; such a declaration to be admissible must be in the actual words of the deceased, and if questions be put, both the questions and answers must be given, in order to show how much was suggested by the questioner and how much answered by the deceased. In this case the deceased was told by the medical attendant there was little or no hope for her, and when asked if she understood her position, replied that she did. It was held, there was no proof of a settled or hopeless expectation of immediate death sufficient to make a subsequent declaration admissible as a dying declaration, and although the deceased said she understood what the doctor said, there was nothing to show that she agreed with him.

  But the person, or persons, inculpated by the declarant’s statement are not precluded from giving evidence as to his state of mind and behaviour in his last moments. They may be allowed to show that the deceased was influenced by vindictive motives, or was not of a character to be “impressed by a religious sense of his approaching dissolution.”

  As dying declarations are but confessions of the most solemn kind, the same rules of procedure apply to them as to confessions. The medical man should put no leading questions, but only such as are necessary to clear up ambiguity. He should commit the declaration to writing, read it to the dying man, and obtain his assent, and, if possible, his signature to it. But if this cannot be done, he should make a memorandum of the declaration at once. while it and the words used are fresh in his memory. To this document the witness will be allowed to refer, to refresh his memory, when he comes to give evidence. Another essential part of his duty is to ascertain the exact state of the declarant’s mind, whether he is calm and collected, or otherwise, and whether he is under the influence of any strong bias or undue feeling of resentment.