MEDICAL EXPERT TESTIMONY. 607 



the representative of these preliminary courts in the prosecution of the 

 accused, and he has already prejudged the case. 



It would seem that the State has — in these man'i'est advantages — 

 all the ex parte aid to which it is entitled, or which the ends of justice 

 demand ; but if we now add the testimony of an expert, perhaps not 

 subject to a cross-examination, who has received his appointment from 

 the State or court, and the opinions of the expert chance to be adverse 

 to the accused, the latter enters upon his defense with the additional 

 disadvantage of his case being probably prejudged by the court as 

 well. Thus heavily handicapped, his chance of making a successful 

 defense must be very small indeed. 



This method of securing expert testimony seems to me also con- 

 trary to the spirit and genius of our institutions, but in harmony with 

 the institutions of the greater part of Europe, where the tendency of 

 governments to concentrate power in themselves, and in the courts, as 

 instruments of the governments, is known and admitted. 



In our system of jurisprudence and, I may say, in the Anglo-Ameri- 

 can system, the personal rights of the citizen are as carefully guarded 

 as those of the State, In the present case the State has certainly its 

 equal share of protection, and by the proposed change it would have 

 more than its just share. 



I make no reference to the other means provided by the State for 

 the determination of questions of insanity, such as commissioners in 

 lunacy, etc., because they are in no way connected with the matter 

 now under consideration, namely, the proper method of securing testi- 

 mony in courts of law. 



During my temporary residence in Paris, in 1844, it was a matter 

 of common remark, among medical men and medical students, that 

 Orfila, the celebrated chemist, and the official adviser of the crown in 

 certain matters of expert testimony, had committed a great blunder in 

 a recent case of supposed poisoning by arsenic, and that the error had 

 been detected and exposed by a member of the Academy of Medicine, 

 but that the disclosure of the error came too late to remedy the in- 

 justice and harm it had done. He was charged with having been the 

 instrument of like injustice to others, and was frequently spoken of as 

 the " king's executioner." 



I do not relate this as reliable history, but only as my recollection 

 of the common gossip of the day ; but, whether the accusations were 

 true or not, they were plainly such as might reasonably be made and 

 justified under a system of jurisprudence in which the professional ex- 

 pert is an appointee of the crown, and is regarded in the light of an 

 official adviser. 



In some cases which have come to my knowledge the public has 

 seemed to form its opinion as to the nature and value of the expert 

 testimony solely from the verdict rendered by the jury. In the case 

 of The People against Cole, tried at Albany in 1868, Judge Hogeboom 



