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expect may be present, may very easily be deceived; but where 
another doctor is watching in the interests of a prisoner, any such 
fault of observation is probably corrected at once. A poor man 
cannot afford such a protection, he is completely at the mercy of 
the doctors employed by the police, who may be conscientiously 
doing their best to report faithfully the result of a fost-mortem 
examination, and yet may be mistaken in spite of the greatest care. 
For example —Dr. Thomas Smethurst was tried August 15, 1859, 
for poisoning Isabella Banks; found guilty, and sentenced to 
death. The case gave rise to much discussion, and Smethurst 
was reprieved and then pardoned. The Home Secretary wrote to 
the Lord Chief Baron: ‘The necessity which I have felt for 
advising Her Majesty to grant a free pardon in this case has not 
arisen from any defect in the constitution or proceedings of our 
criminal tribunals. It has arisen from the imperfection of medical 
science, and from the fallibility of judgment in an obscure malady, 
even of skilful and experienced medical practitioners.”* 
It should be a rule that no fost-mortem examination should be 
made in a case of gravity unless a prisoner has an independent 
medical man to watch over his interests at all examinations of the 
body, parts of the body, clothing, stains, weapons, or furniture, or 
any object or thing destined to form a part of the circumstantial 
evidence to be brought against him. 
The force of circumstantial evidence depends entirely upon 
whether all fallacies have been eliminated, and this applies very 
strongly to medical evidence. There may be mal-observation, in 
which the error does not lie in the fact that something is unseen, 
but that something is seen wrong. Whilst the greatest of all causes 
of mal-observation is a preconceived opinion, 
The next point where a poor man is at a disadvantage is at his 
trial; here the solicitor engages counsel, to whom a small fee is 
paid, and a somewhat hasty line of defence is drawn up, no brief 
even having been prepared. The defence, owing to want of means, 
is wanting in all essential particulars, and scientific witnesses have 
not been engaged. When a prisoner is undefended, his position is 
* Stephen’s History of Criminal Law, 
