Page:American Journal of Sociology Volume 4.djvu/653

 CRIMINAL ANTHROPOLOGY AND JURISPRUDENCE 633

accused, without interference by attorneys, and that no member should make an examination, except in the presence of the other members. No action has resulted from this recommendation. Similar movements have been made by medical associations in other states, but with no better success.

The recent case of the People vs. Fleming serves as an excellent illustration of the present difficulties attending expert testimony, and, in commenting upon the case, the Medico-Legal Journal says : "Rarely, if ever, have the defects of expert testimony been presented so unmistakably as in this case. A fair estimate of the cost to the defense and the prosecution separately for the expert evidence intro- duced is Si2,ooo. These eminent and high-priced scientists contra- dicted each other directly and explicitly, as they always do. These witnesses are not witnesses at all, as they are not called to establish truths, but to support theories, the acceptance of which makes for con- viction or acquittal. They are chosen with that end in view and with an eye to nothing save the skill with which they can protect themselves and their contentions in cross-examinations. They are not neces- sarily dishonest, and some of them are men of high character. But they become under the existing system simply a part of the array of counsel of either side. Every one of them would consider it a dis- loyalty to omit a scintilla of evidence tending in the least to combat or even confuse the contention for the maintenance of which he is retained. This is a sorry hand-maidenship of science to justice. It disgraces both."

In France, in homicide cases, a medical expert is appointed to serve from the time the crime is committed, and is a close observer from that stage until the end of the trial. It is in the discretion of the judge whether other experts shall be admitted. In New York and a few of the other states it is provided that, where the plea is guilty and insanity is alleged, the accused can be adjudged insane and committed with- out standing trial, but this only operates where the plea of guilty is entered.

It is a rule of practice, and in some states it is provided by statute, that a prosecuting attorney can accept the evidence of an accomplice, and in return grant him immunity from the punishment for his parti- cipation in the crime. This is a survival of the early common-law rule of approvement, where one indicted for a capital offense might confess the fact in order to obtain pardon, and was termed an accuser. The person accused was tried, and, if convicted, a pardon was granted