The Plea of Insanity, 



303 



late writer well says, " Either the court must distinguish between rival 

 schools, in which case it determines in advance the renditions of science 

 as to which the experts are to testify ; or it must decline so to decide, 

 ia which case there is no ground of discrimination of any kind be- 

 tween professed experts. This virtually breaks down the distinction 

 between experts and non-experts." 



It is a matter of common experience that persons wholly unquali- 

 fied are admitted to testify as experts ; and such witnesses often speak 

 with an assurance rarely seen in men of profound scientific attain- 

 ments; thus verifying the saying that " fools rush in where angels 

 fear to tread." 



Besides this inevitable embarrassment under the present system of 

 procedure, there are abuses which more than merely justify criticism. 



The unseemly spectacle is often witnessed of medical experts arrayed 

 against each other in a cause, and not only giving wholly contradict- 

 ory testimony upon the same question, but manifesting all the par- 

 tisan zeal, and frequently more bitterness of antagonism, than is ex- 

 hibited by the opposing counsel. This results, in part at least, from 

 the volunteer position of experts, which is sometimes termed the An- 

 glo-American practice. Each party selects witnesses holding views to 

 suit his purpose, or he retains them as he does his counsel, to take 

 care of and advance his interests. They are generally well paid for 

 their services, sometimes larger fees, even, than counsel in the cause. 

 Thus, interest and the zeal of a paid retainer are added to professional 

 pride and jealousy, the sure outcome being a painful, not to say 

 disgraceful, scene in court. It is scarcely in human nature, under 

 such circumstances, for a witness to resist the temptation of becoming 

 a partisan, and manifesting feeling wholly unbecoming the position. 

 It is scarcely too much to say, — there is no theory of insanity, how- 

 ever wild and absurd, and no perversion of facts and science, however 

 monstrous, that have not been subsidized in criminal jurisprudence, 

 under the guise of expert testimony. No witness, and especially no 

 professional witness, should be subjected to such a strain. Applied 

 here, as wheresoever, in all the relations and activities of life, there is 

 great significance in the prayer, Lead us not into temptation.^^ It is 

 apparent at a glance that under the present procedure, with its attend- 

 ant abuses, there will be great difficulty, often, in ascertaining the 

 truth. Who shall decide when doctors disagree ? " 



One remedy proposed for some of the evils incident to the Anglo- 

 American practice, is the adoption of the German system. Under this 

 system, medical experts are appointed by the State. They are selected 

 from men scientifically trained, who have successfully passed an ex- 

 amination in the specialty of medical jurisprudence, in the manner 



