How did English and Welsh medical practitioners enter the common-law courtroom as expert witnesses, and how can one assess their influence on crime-scene investigations and courtroom testimony? Witnesses offering specialist opinions were hardly novel in the eighteenth-century London courtroom, but their participation grew at such a pace that, by the early 1900s, they had become regular participants in police investigation and criminal trials. Even as their presence grew, their evolution was not a singular event: defense lawyers, judges, and juries were experiencing qualitative changes in their roles in the adjudication of crime just as prison surgeons, asylum superintendents, and hospital medical officers entered the witness box. It is the singular achievement of this important study that Katherine D. Watson has isolated critical moments in the growth of medicine's role while embedding the practitioners’ rise within the shifting dynamics of criminal prosecution in early modern England.
Enlisting a wide range of sources—trial proceedings, contemporary newspapers, medical school lecture notes (with examination questions!), and textbooks introducing aspiring medical students to the legal system—Katherine D. Watson casts the largest historical net yet into medicolegal practice not only in London, but also in eight counties of the Oxford Assize Circuit, Wales, and Cheshire. Further, she provides a comparative and comprehensive inventory of events and statutes affecting medicolegal practice from 1194 to 1938 as well as a glossary of medical practitioners active in the contemporary tribunals. In consequence, Medicine and Justice: Medico-Legal Practice in England and Wales, 1700–1914 offers the most compelling and exhaustive history of “the coming of the doctor” currently available, allowing readers to reconstruct the creation of an expanding role for medical practitioners in the criminal justice system.
Legal historians will doubtless be drawn to the author's two foundational questions: (1) What did medical practitioners contribute to the investigation of serious violent crime in the eighteenth and nineteenth centuries, and (2) What impact did they have on criminal adjudication?Footnote 1 The first question is unproblematically answered: quite a lot. Readers will learn of police surgeons increasingly attached to precincts and thus in a position to examine the crime scene, with the expectation that they would appear in court to report their observations … and subsequent opinions.Footnote 2 Crime-scene investigation offered first-hand acquaintance with the signs of violent assault, enabling medical practitioners to testify to the number of wounds, the relative lethality of particular injuries, and the ultimate cause of death. Because their skill was often sought to treat victims of violent crime on the scene, it was surgeons rather than physicians or apothecaries who figured most frequently as court witnesses.
Watson is careful to stress that the increased role for medical practitioners in court developed in parallel with the introduction of defense attorneys at the Old Bailey beginning in the 1730s.Footnote 3 An evolving defense bar succeeded in shining a bright light on the nature—and questionable reliability—of evidence, rendering medical opinion seemingly indispensable in cases of violent personal assault. Further, the emergence of beyond a reasonable doubt as the criterion for guilt-fastening resulted in a demand for testimony clarifying the provenance of wounds that had led to death. Watson is particularly effective at rooting the emergent role of the medical practitioners in the effort to proceed with crime detection as scientific investigation and the manner in which their testimony reflected the inferences they had drawn at the crime scene.Footnote 4
Beyond averring on the (probable) cause of death, however, medical testimony could be vital to the jury's determination of intention, the foundational element in ascribing blameworthiness to a physical act: what was it that the accused meant to do? Even in killings when the cause of death was obvious—stabbing, throat slashing, strangulation—culpability was not always settled by external bodily signs. Medical testimony that spoke to the degree of force employed or the number of wounds inflicted could leave the impression that the killing was more frenzied than purposeful, precipitated perhaps by maniacal rage that suggested derangement rather than premeditation. On the other hand, the profusion of wounds could suggest a sustained, purposeful attack, implying an intentional killing. Physical signs were therefore not dispositive: medical witnesses could provide critical insight, thereby allowing the court's attorneys to frame the victim's wounds as accidental, suicidal, or homicidal, yielding vastly different verdicts.Footnote 5
Infanticide and Poisoning
Perhaps no criminal trial required the services of the medical witness more than a case of infanticide, although ironically, no other crime more greatly revealed the limits of medical testimony. The one element that the state had to prove was that the infant at issue had been born alive; there could be no homicide without a person, and the infant was not a person unless completely separated from its mother and breathing on its own. On this crucial forensic point, however, the medical witness was often maddeningly equivocal: there simply was no definitive way to prove that an infant had been born alive. Introduced into English jurisprudence in 1729, the hydrostatic test was designed to see if the infant's lungs floated in water, supposedly providing evidence of a live birth. Such as it was, however, the test was plagued with false positives, not least because the infant might have breathed in the birth canal but arrived stillborn. Further, infants might die quite on their own, with no assistance from the mother. Although common-law courts did not then have at their disposal the diagnosis of sudden infant death syndrome, a medical witness asserting, “[i]t is possible that a child may die in two or three minutes without any visible cause,” would render medical opinion on the question of live birth something less than helpful.Footnote 6 Indeed, the “test” was often dismissed as “distrusted, out-dated, and ‘exploded,’” yet it was used into the twentieth century, often to the peril of the medical witness who found defense attorneys waiting to pounce.Footnote 7 Without on-scene witnesses to the birth, no one could claim with confidence that the infant had been born alive; without this, a true bill for infanticide could hardly stand, with or without medical testimony.
The other offense most likely to feature medical testimony was poisoning. Here, Watson builds upon her excellent earlier work surveying the advent of toxicology in matters forensic and criminal.Footnote 8 Poisoning trials were perhaps the best illustration of forensic, not “just” medical, opinion: toxicology engaged both chemistry and medicine, providing an institutionally based grounding for the assertion of professional knowledge. Given the importance of medical school and hospital experience in the proffering of expert opinion, Watson's comparison of London with rural medical sites illuminates the spatial, not only the temporal, consideration in formal settings as the provenance of professional opinion.Footnote 9 Rural courts lacked the universities and large metropolitan hospitals that served to acquaint practitioners with the latest in medical insight and practice that buttressed claims to expertise. Familiarity with an entire class of poisons enabled medical witnesses to distinguish themselves from lay witnesses, something that was difficult to do when the issue was mental derangement or another topic upon which lay people felt fully competent to opine.
Infanticide and toxicology garnered the lion's share of space in forensic medical texts, and trials for child murder and poisonings also provide a critical glimpse into the second theme the author has undertaken: assessing the sway of medical testimony on court proceedings. The effort to gauge influence, or reception in the author's words, is no straightforward affair; it is devilishly difficult to construct an operational definition of influence, or significance, or indeed, reception. Acquittal rates—easily available and readily computable—remain frustratingly opaque for historians of forensic medicine. How difficult is it to explain today's verdicts, when all the evidence is publicly displayed and dissected in open court? How does one isolate the influence of any one witness, expert or lay, on the jury's construction of what it was that the defendant meant to do?
The effort then, to gauge the credibility and authority of historic medical practitioners and the force of their scientific testimony is more challenging still: one would have to go beyond courtroom testimony to estimate the cultural influence that historic medical witnesses enjoyed in order to distinguish the medical expert's testimony from that of on-scene witnesses and, by so doing, imply that it carried singular significance. What knowledge base did medical testimony rest upon? Unlike the observations of neighbors and relatives, medical testimony might have been rooted in hospital experience and/or time spent in the academy; nonetheless, when and how did experience become knowledge? Then, as now, jurors imported community notions of right and wrong, guilt and innocence into the courtroom. When these enduring, widely shared community understandings met opinion-based testimony proffered by newly emergent specialists in medical or indeed forensic science, one is hard pressed to assert that the verdict necessarily reflected the influence of the expert.
Further, although “jury nullification” may be a new term, the concept is well familiar to historians of law. Jurors exercising independence from draconian criminal statutes were clearly in evidence in the profusion of eighteenth- and early nineteenth-century “partial verdicts” delivered to evade the “Bloody Code”; that is, hundreds of offenses that called for death sentences, many for stealing anything worth 30 s. or more.Footnote 10 The remarkable number of recorded verdicts for thefts valued at (precisely) 29 s. suggest that lay people had their own view of crime, punishment, and just desserts.Footnote 11 In similar regard, jurors apparently not always (or often?) listened to medical witnesses in nineteenth-century insanity trials: juries found defendants insane when medical witnesses pronounced them perfectly coherent, and concluded others to be sane when medical men on both sides of the aisle affirmed the presence of severe mental derangement. Finally, some defendants were so pitiable that jurors sidestepped an insanity verdict altogether and found accused mothers (simply) not guilty, even when insanity had been raised by the defense attorney and affirmed by medical witnesses.
This is in no way meant to suggest that specialist medical witnesses had minimal impact on lay jurors, but rather to underscore that gauging the influence of medical witnesses requires an extremely nuanced approach. As Watson writes, “most verdicts ultimately hinged on circumstantial evidence and factors that lay outside the scope of medicine.”Footnote 12 Sympathy for the victim may well have disposed the jury to interpret medical evidence “selectively,” leading one to wonder how weighty the evidence was in any particular trial. Medical men could face spirited cross-examination in court; medical textbooks tried to arm the practitioner with warnings about efforts to expose lacunae in medical knowledge, an experience only too keenly felt in infanticide trials. According to Watson, coroners and attorneys clearly believed in the evidentiary promise of medical expertise in pretrial and courtroom proceedings, especially in cases in which ambiguous signs of assault led to death. But the proclivity to enlist such expert assistance does not support the contention that the medical witnesses were persuasive witnesses. Warmly received by coroners and defense and prosecution attorneys the medical practitioner may have been, but whether he carried influence for jury deliberations will have to await some nuanced measure to assess the climate of the courtroom as medical observation became medical opinion.Footnote 13
The Enduring Influence of the Bench
For all the attention paid to the arrival of the defense attorney and the emergence of medical experts, the most penetrating influence exercised in court remained the bench. In summing up the evidence, commenting on medical and lay testimony, and instructing the jury on points of law, the judge's words were the last the jurors heard. Judicial influence has accordingly attracted the interest of historians of law, most particularly the use of “directed verdicts,” given due consideration by Watson. While a judge in 1839 advising the grand jury, “I do not conceive you will find much difficulty here, as it appears the child was born alive” could not have been more prescriptive, he was still not as directive as some Old Bailey judges who were known to intone: “Then you will acquit to be sure, Gentlemen.”Footnote 14
One suspects that judges, like juries, may well have sifted through medical testimony hoping to affirm a particular narrative of the crime and the defendant's role in it. At other times, judges were known to volubly disparage medical testimony that did not accord with their own sense of the defendant's role in the killing. They could take offense at the mere appearance of a medical practitioner, as was the case with a judge who asked whether a particular doctor had “not been here before as a Jew physician, to give an account of a prisoner as a madman, to get him off, upon the ground of insanity?”Footnote 15 Admittedly, it is hard to distinguish jurisdictional from ethnic pique at this particular doctor's second appearance in court.
Beyond taking issue with particular witnesses or testimony, judges could also offer an alternative narrative to the courtroom evidence, suggesting the defendant's innocence when previous testimony would seem to point to guilt. Clearly, judges remained sovereign in their own courtroom, even if growing scrutiny of evidence by defense lawyers—something the bench had initially reserved for its own courtroom role—and the articulation of an exacting standard of proof shifted the locus of power away from the bench exclusively to include an increasingly assertive defense bar. Assessing how warmly medical witnesses were received in court therefore awaits a sustained examination of judicial attitudes, not only to the circumscribed role they faced by the early twentieth century, but also to how police surgeons, asylum doctors, or hospital medical officers engaged the judge's professional sensibilities. As Watson writes, questions from the bench are rarely given in courtroom narratives and, without these, it is very difficult to reconstruct judicial attitudes toward opinion-based medical testimony.
The caution expressed in concluding that medical witnesses were demonstrably effective witnesses in no way minimizes the contribution that Katherine Watson has made to our understanding of who these witnesses were, how they were trained, and at whose behest they appeared in court. Indeed, readers will be intrigued by the full range of medicolegal specialists’ activities within the criminal justice system, from pretrial investigation, to assisting the work of the coroner, to delivering testimony viva voce in court.
The author has skillfully illuminated the emergence of a critical courtroom role, one that is best understood as developing in tandem with, not in opposition to, the “lawyerization” of the criminal courtroom. To this end, she has presented in sharp relief the challenge that expert witnesses posed to common-law tribunals in which witnesses were purportedly constrained to delivering facts: impressions made on the organs of sense. Inferences to be drawn from witness testimony and opinions voiced in court were to be the sole province of the jury, yet the increasing attention given to evidentiary rigor and to a heightened bar setting for guilt often required wounds and signs of battery to be commented upon by men learned and experienced in treating victims of violence. How and whether the jury conferred pride of place to the specialist witness is a point of fascination for historians of law and forensic medicine, as well as for contemporary students of the criminal trial.
