(Automatic transcript - may present inaccuracies)

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>> Will you please come to order? We'll have the reading of the minutes by the secretary, minutes of the last meeting. Please, Dr. Wilke.

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Are there any additions or corrections to the minutes? If not they will--considered to be approved this way.

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The most important part of our meeting this evening deals with the relationship of medical profession to the court procedures. This has been the subject of an unusual amount of discussion and actual criticism in the past several years. It was considered important enough a very few years ago to be the topic of papers written by two of our most eminent juries. We are to have a symposium tonight dealing with certain aspects of this relationship and will be presented in two parts. The first, the role of the physician as an expert witness in civil actions, and second, the role of the physician as an expert witness in criminal actions. We are very fortunate to be able to have four of the most experienced authorities present to present this matter to us this evening. Not only will it be very interesting but I am sure that we'll derive a great deal of benefit from it. Now, the first speaker speaking on the role of the physician as an expert witness in civil actions, Dr. Justice Burnett Bouteme, Appellate Division New York State Supreme Court in the First Department. Justice Bouteme has been one of the most active persons in the study of our medical experts panel whose services are called for by the Supreme Court Justice in personal liability cases. My pleasure then to present Dr. or Justice Burnett Bouteme.

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>> Thank you, Dr. Sullivan, distinguished guests and who share the symposium with me and ladies and gentlemen. In 1928, one of our noblest and most urbane men of laws spoke in this very hall. At that time, Judge Cardozo said, "The more I think it over, the more I feel the closeness of the tie that joins our gills together." In this spirit of kinship, our professions have jointly launched and recently concluded a notable experiment, the medical expert testimony project. Now I don't propose to dwell tonight on the splendid results achieved by this project under the leadership of Presiding Justice David W. Peck of the Appellate Division. Not among the least for the demonstration that the two professions can collaborate harmoniously and effectively in coping with a common problem. The project was born out of the acute dissatisfaction and informed the members of both professions experienced with a caliber of medical expert testimony in the courts. The quality of such expert testimony simply had to be improved. For example, those intolerable that one expert would swear that a line on an X-ray picture depicted a fracture of the skull while another swore it was merely the normal suture line. And the quality has been improved greatly through magnificent joint efforts. I would like to follow hard on the heels of this project by isolating and holding up for scrutiny, a practice that I believe they base as the presentation of expert medical testimony. It is an abuse that has been curved considerably by the functioning of the medical panels. But I doubt that it can be eliminated effectually without some additional measures. Since the medical expert testifies mostly in actions for personal injuries arising out of accidents, I shall discuss his role in relation to that type of case only. Now, the trial of a lawsuit is essentially a search for the truth. And the physician as an expert witness should play a most important role in aiding and even guiding judge and jury in this search. Through centuries of experience, we men of law, have evolved a sort of ground rules designed to bring out the facts during a trial as fairly and thoroughly as is possible. And we've also formulated principles of law that our design to work what the man in the street would call justice. These principles of law, however, must be applied t facts, facts as found in the courtroom which are not necessarily nor always the true facts. Now, it's difficult enough to decide upon the truth when weighing the testimony of ordinary witnesses. The defendant who is driving his automobile at the time of the accident testified that the plaintiff was jay walking. The plaintiff testifies he was standing on the sidewalk minding his own business when the defendant's car mounted the curb. Difficult as it is to have traced such testimony, jurors rarely need expert help. They can draw on their own everyday experience and knowledge in sifting the evidence. But the medical expert brings to court his specialized knowledge of a subject about which judge and jury know little or nothing. If the jurors decide that the defendant's at fault, and they usually do, they must then asses damages. They must determine the nature and the extent of the plaintiff's injuries and their probable duration. This boils down to diagnosis and prognosis, the acknowledged province of the medical profession. A greater responsibility therefore rest upon the physician and upon the ordinary witness. Does this touching dependence of judge and jury bring out the best qualities in the medical experts? Like Albert Schweitzer, do they try to bring truth and light into the juridical jungle? Alas, no. Three types of experts may be called to testify in a personal injury case. One is the family physician or the general practitioner who treated the plaintiff. The second may be a specialist called in for treatment or surgery, and the third may be a medical expert who never treated the plaintiff at all. I have little quarrel with the courtroom conduct of the treating physicians. Every once in a while, a general practitioner who has just bought himself a brand new x-ray machine, they read into his pictures, fractures that an x-ray specialist could never discover. But I'm inclined to credit him with good faith. After all, most civil trials take on the coloration of private fights. Partisanship is infectious and doctors are human, but generally speaking the worse that can be said of treating physicians, family doctor and specialists alike is that they will not give their patients the [inaudible] of it in a close and debatable medical question. My talk will center on the third type of experts who can boast of a heavy and sustained incidents of exacerbation and puffing. I shall call these experts so called the testifying experts rather than medical experts. The testifying expert is hired by the lawyer, not by the patient. He usually examines the plaintiff for the first and only time, a few days before the trial. When testifying, he has just the right degree of diffidence about the lawsuits, just the right air of candor and the flattering technique of taking the jury into his confidence and reducing the recondite science of medicine to a very simple affair. The testifying expert has developed the courtroom manner as some doctors have developed the bedside manner. He will often make flat assertions where his more learned and conscientious adversary will express reservations. Many testifying experts with appalling consistency will find injuries difficult for a conservative physician to rule out such as post-concussion syndromes, low back injuries, herniated discs and so forth. And the real expert on versed and rules of evidence is unable to explain his reservations without running afoul of the rules of evidence. He gives cramped opinions in a framework of weird and unintelligible roles that is weird and unintelligible to him. When thus frustrated, he becomes flustered and takes refuge in the style he employs when lecturing medical students. This style is over the head of the jurors who are charmed by the testifying experts and regard the real experts as evasive. Only a small band of medical mercenaries tailor their testimony to fit the needs of the lawsuit. And they constitute an infinitesimal through action of the great body of honorable and dedicated physicians practicing in this country. And similarly, only a handful of lawyers hire these experts and plot with them to pervert justice. There can be little cause for wonder that this small fringe of lawyers retains the small fringe of physicians, of testifying experts, so the exclusion of the treating physicians. Why should the lawyer struggle with the treating physician to make sure his conclusions coincide with the needs of his case. Or why take a chance on the courtroom awkwardness or a possible offensiveness of the treating physicians? It's so easy to retain a testifying expert who will fly with the greatest of ease from a fancy fee to a foregone conclusion. The defendants usually represented by insurance companies cannot of course present the treating physicians as their witnesses. Some defendants' representatives, in a realistic endeavor to learn the actual nature and extent of the injuries, retained capable and conscientious physicians to examine the plaintiffs and if needs be, to testify. Others, I regret to say, find it expedient to use expert testifiers for the same reasons that motivate plaintiffs. The trial judges appreciate how effectively the testifying experts have nudged the treating physician's right out of the courtroom. The judges see the same witnesses ascend the stand time and again, give their dubious hospital connections and then launch importantly into their same stock recycles. Unfortunately, the jurors who say for only two weeks are not aware of how frequently the scholarly looking experts testified. These professional testifiers bring discredit upon both our professions to a degree far out of proportion to their limited numbers, the courtroom in which medical testimony is presented as a showcase for both professions. Irresponsible medical testimony, whether in an accident case, or will of contest, or malpractice case, or any other form of litigation carries reverberations far beyond the litigation perish.

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The professions are now properly alert to the desirability of taking affirmative measures to promote good public relations. Isn't it just as sensible to drain and cleanse the source of bad public relations? And what is the result of this capture of the courtroom by the testifying experts? There is the degradation of both our professions. There is the increased cost of court processes for which the taxpayer puts the bill. Without assurance of dishonest medical testimony, many cases now in the Supreme Court would never have been brought there. False medical testimony imposes a more direct berth on the public by reason of bloated settlements and judgments when both sides sit down to discuss settlements of a case either before or after suit is instituted. Do you imagine they talk in terms of the intrinsic worth of the case based on actual injuries? No. They discuss settlements in terms of the defendant's exposure to a verdict at the hands of a jury that is likely to believe the exaggerated claims of a--[inaudible] to believe the exaggerated claims of a--[inaudible] to believe the exaggerated claims of a testifying expert. Settlement values are fixed on litigation experience, and litigation experience reflects puffed claims values. So the insurance premiums the public pays are considerably higher because of the perjury contents that distorts claims experience. Although I am medically illiterate, I must ask why a treating physician, whether specialist or general practitioner, is confident enough to treat the plaintiff but not to testify on his behalf. Am I to understand that a doctor may be good enough to treat or operate on a plaintiff? Perhaps when his very life hangs in the balance, whether he's not good enough to testify about the injuries he treated. It just doesn't make sense to me, unless, as I suspect, the treating expert is not prepared to go as far in the courtroom as thus the testifying expert. This conclusion is fortified by the findings of the medical expert testimony project which I mentioned a few moments ago. This project was conceived by Presiding Justice Peck and the justices of the Supreme Court as a technique to help improve the caliber of medical testimony, through the invaluable cooperation of Dr. Howard Reeds [assumed spelling] Craig, acting as the medical liaison officer for the New York Academy of Medicine and the New York County Medical Society. Those organizations set up--

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--15 different panels of experts, covering all of the usual and even some of the unusual traumatic injuries. In a case of irreconcilable conflict and medical opinion, a judge now has afforded the opportunity of appointing an outstanding mutual expert to examine the plaintiff reports and if necessary, testify. The Association of the Bar of the City of New York and the New York County Lawyers' Association rendered invaluable assistance in the establishment and the conduct of this experiment. The project has proven dramatically effective in those cases in which an impartial expert has been appointed. And it has also exercised generally a wholesome and most important effect on the medical aspects of the great volume of personal injury cases. However, since it is a remedy employed on a selective basis, it affects directly and conclusively only a limited number of cases. And so, additional measures are required properly to control the testifying experts. Dr. Irving Wright [assumed spelling], at the request of a medical panel committee, made an analysis of 100 of the cases referred to panel experts. He remarked, "On the failure of the treating physicians to take conservative and accepted measures in the treatment of their patients, for example there were an inordinately large number of cases involving diagnoses of concussion or fracture of the skull in which no examination of the spinal fluid was made." These and other inexcusable omissions were very disturbing to the medical members of the committee. I suggest that many of these indicated measures were not taken by the treating physicians because they simply never had any reason to suspect the injuries which were later attributed to their patients by the lawyers and the lawyers' medical experts. The choice that you must make lies between the incompetency of the many or the knavery of the few. And I incline to the latter view. There will always be some cases in which a non-treating expert must be called. The treating physician may have died. He may have made an erroneous diagnosis honestly requiring correction, or the injuries may be so serious and so sharply disputed that supporting testimony is desirable. I am not speaking of such instances but of the generality of cases. And I designedly do not recommend any specific program to curve this expert testimony evil. The important thing is to blueprint the cause and secure joint action by both professions, nor will I suggest any drastic disciplinary action for what has already happened. These sporadic, punitive expeditions soon spend their force and leave the causes undisturbed. Well, if we once defined our mutual problems, we can solve them by cooperative efforts. The testifying experts present just one challenge. There will be other problems. In the spirit best exemplified by our recent cooperation, these problems can also be met. I repeat what I said at the outset. The role of the physician in court is to help in the search for truth. This ideal role can be made the rule rather than the exception only with the cooperation of the decent members of both professions will constitute the overwhelming majority of their memberships. The professions will have to act affirmatively through their responsible organizations. The honorable physician will have to overcome his aversion to the courts and no longer discouraged or shun requests that he testify. In another context, Alexander Pope posed the question very neatly over 200 years ago when he said, "Who shall decide when doctors disagree?"

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>> Thank you very, Judge Bouteme. The second speaker on the same part of this subject, the role of physician as an expert witness, that is Mr. William Martin who has been for many years counsel of Medical Society of the State of New York and has had great experience in personal liability cases. I'm happy to introduce Mr. Martin.

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>> I must confess that I'm a substitute here. We were--I was trying to case up my plans that Mr. Harry Gail [assumed spelling] was engaged in and I think that his vacation schedule conflicted with his--by a commitment to come here and speak and I think he was the one that suggested to me at that time that I take his place. And I--speaking on the role of a medical witness in court and the role of the situation of a doctor under stress, the trial that we were engaged in at the time presented an interesting example. One of the lawyers was trying to explain away the importance of his client in the case and he said, "My client was just an assistant, pure and simple." Well, there were some low laughs in the court room and Mr. Gail turned to me and he said, "That reminds me of the orthopedist that I had on the stand and finally my opponent was so irate in his cross examination and he said, 'You're just an orthopedist, pure and simple.' He said, 'Well I'm fairly pure, but you see, I certainly am not simple.'" And not--in a few minutes, I just want to make some comments on the effectiveness of medical testimony and the ways in which a doctor can improve his own lot when he goes on the witness stand. And what I once said at the beginning is that if you want to learn about that subject in far better context, then I can possibly give it to you. You can go back as far as a book that a predecessor of mine, Lloyd Paul Stryker, is counsel for the medical society and very learned trial judge wrote to all courts and doctors, and any doctor who is in doubt about how he should conduct himself on the witness stand could read a chapter in there on the work of testifying. And he sets down a number of rules, and these rules are first tell the truth, second, come prepared, third, do not be afraid, fourth, be natural, fifth, be modest, sixth, be frank, seventh, be attentive to questions, eighth, do not volunteer, ninth, do not attempt to be an advocate, tenth, do not lose your temper, eleventh, be courteous, and twelfth, keep your voice up. Now, that is just chapter headings or paragraph headings and the context is very excellent. I met a very experienced trial lawyer, Mr. Helpern wrote in a publication I believe that Mr. [inaudible] said something to do with sponsoring, call the practical lawyer. A recent article on medical proof, I believe he delivered a speech before another bar association and it was reprinted in this magazine but it's an excellent detail discussion of the preparation that a doctor should put himself through before testifying on the stand. And then in the American Medical Associations Journal, very recent issue, there was a medical symposium and there's an article on advice to the medical witness by a California lawyer, Mr. Gilbert. All three of those articles are excellent. And for a doctor who is for the first time confronted with testifying on the stand, I would suggest that he take a few minutes out and read one of those articles. On the subject of being clear and quickly getting across to the jury, just what you treated the patient for. You sometimes learn that the hard way that you must see that the witness explains what he was treating the patient for. Sometimes you'll presume that they know and they do not really know. It reminds me of the case we tried some years ago where the only issue in the case seemed to be that the doctor put a heat lamp on the patient and burned the patient or didn't he? He violently and vehemently denied that he put--that the patient was burned. She said she was burned and she had no permanent injury but she claimed an injury that lasted to some weeks and gave her a lot of trouble. The issue was so narrow that we never bothered to ask the woman what she was being treated for and then the doctor what he was treating her for. And a judge who--now very learned Appellate Division judge had it worked out very nicely. It was a warm, lovely spring day and he thought that it continued to be such the next day so he closed the proof on a Thursday afternoon. He was going to charge the jury Friday morning and get away early. Well, the jury was still out at 5:30 and he called both counsels and said, "Do you mind if I call in--send a note and ask the jury what's bothering them, it's a simple little case, and why they have made up their mind." So we both agreed who could disagree. And the jury sent out a note and the judge said, "I've been on the bench many years. This is the dumbest I ever read." They said. "Dear Judge, we find both parties to this action guilty of an abortion, we don't know what to do. What do you suggest?" Now right from the beginning of the doctor's testimony, he should confine himself when qualifying himself to the exact precise truth. It's funny thing. A lot of people assume that in this great big town of ours, you can [inaudible] a little about yourself and nobody will catch up with you. Well, it's just a big-small town and they catch up just as fast here as they do anywhere else. I recall a doctor who testified that he served an internship and a residency at one of the fine hospitals in this city. That was the truth. But then he really came across. Ten minutes before the recess, again on a Thursday, we always seem to get in trouble on Thursdays. He said that he got his obstetrical training at this hospital. Well, quite by accident that night, the lawyer was talking to another doctor who had served at that hospital. And the next day, he came in with the catalog at the hospital and called attention to the fact that they had a drive on to build an obstetrical unit.

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And they had no obstetric facilities at that hospital in the whole long history of the hospital. Well, he really had obstetrical training at a clinic that they sent people to in another part of the city, but that was a very weak explanation of what he really meant in the first place. Now, in these articles that I speak about, you will learn that when you are on the stand, you will be confronted with textbooks written by authorities and there's a rather [inaudible] rule of law that you can get a lot of--you get into a lot of trouble in relation. Now the rule is that if you do not recognize that book, it's an authority. They can't quote you from the book and ask you whether you agree or disagree. Now, one afternoon we had a doctor in cross-examination and he was being embarrassed no end by the content of several textbooks. But overnight, some little birdie told him that if he didn't recognize anymore books, she couldn't quote from him. So the next day he was presented with the 5th edition of Christopher on surgery and he said he didn't recognize the book. It's the--It's an authority. Well, this involved acts of--related acclaimed acts of medical practice, 10,000 feet up in the Andes. This man had come back to this country and so did cooperation. And I said, "Well, this book isn't really a book written by the man whose name is on the cover. It's a series of articles by various authorities and that's all put together with editorial notes and comment by this man who's name is on the cover. Now I said, "Do you recognize the man who wrote the article on osteomyelitis?" He said, "No, I don't." I said, "Well, do you see that he is the professor at Union Hospital in Baltimore?" Well, he had to admit that. "And do you know that that's the teaching part of the University of Maryland?" And well, he thought maybe that was so. Well, I said, "Do you think that they'd be held any low standards there than they would be or you'd hold people in the Andes in the higher standards, up in an emergency mining camp? And wouldn't the University of Maryland [inaudible] subjected to his argument have been sustained. It's always good to have somebody else along with you. My associate was talking on my coat and he said, "Ask him what the name of the yellow colored book he brought with him once this morning." So I asked him and he said, "Well, I don't know, where is that exhibit down here we brought?" That was the 5th edition of Christopher on surgery. Asked him where he got it. He picked it up at the hospital that morning. Why? Well a lawyer asked me to bring an authority to court. You had so many books and he want an authority. So I said, "Well, do you agree with the 5th edition as an authority and the 4th isn't?" And he said, "Yes." The judge called me up and he said, "I'd drop it if I was you. I don't see that you can make much more of a point than you've made already." Now, you can appear ridiculous. The juries aren't that ignorant that when these books which I was combating on the cost of medical textbooks coming here, usually it weigh in at about--I'd weigh them by price about 16 to $18 dollars a piece in all the--other than standard authorities. And you can't print them yourself. You can get them out that big and you're going to pay a perfectly ridiculous--and there's a moral there, don't let any lawyer ever put you as a doctor in a [inaudible] unethical position. If you can't maintain your integrity and testify honestly and decently, do not testify at all. If they won't take your testimony as it comes, that's too bad. It'll have to do without it. Or you owe him, there's the obligation of telling him what you will testify to. Of course the salutary effect of this impartial testimony project has undoubtedly approved the standard of medical testimony produced by adversaries. Now, it's--a lot of trouble in testifying comes before you ever get to court. I mean after all, there are records perpetuated that you made some time in the past and they have a way of coming back and haunting you. And that's your thought about your case as you put it on a record starts from the day you first put pet on paper. Sometimes these little white lies that it told to help a person collect in an accident and health policy of something of the kind have a way of coming back to haunt you. And usually the paper is presented to you after you're really out on the limb, after a couple of hours of testimony. So be true to yourself and just that true to the patient. Do not ever put down anything in writing that you can't factor the limit. Above all, before you testify, take a few minutes out to read your own records and to read the hospital record. And read the hospital records not only for the admission that you had the patient in before, particularly this rule applies before you start--as you start treating the patient. But any records that you can get a hold of of previous admissions. And when you're on the witness stand, it creates a very bad impression, unless you have a good deal better than a passing knowledge of what's in those records. And do not let anybody distract you. If those records are first available when you get to court, do not let the lawyer or anybody else interrupt you until you step aside with those records. And so far as you can concentrate on them and understand them and read your own notes and read the other notes and then testify to just what's there. Do not guess but testify to just what's there. Now, on cross examination of a doctor, one of our very dear ex Supreme Court judges, was a very wise man, heard me one day rant and rave at a very distinguished psychiatrist for four or five hours and I thought I was making a point or two and he's--[inaudible] what he said to me, "You know, Bill" he said, "I heard a lawyer ask that doctor just one question and I thought it was the best cross-examination I ever heard and it wasn't any one of the questions you asked." I said, "How does that hold out?" My vanity was a little hurt. He said, "Well, you know how much time he spends on his First World War record where he starts at the local draft board and he goes all the way through the district draft board that he was psychiatrist adviser to and then the city draft board and before it was over the national board that passed on these cases. I said, "Yes". He said, "Well, this lawyer didn't know any theoretical or textbook psychiatry. He was a pretty good amateur psychologist in his own right." He said, he stepped up and asked him just one question, he said, "That guy, they want to detain you, but would you answer just one question for me before you leave the stand?" He said, "Why certainly." He said, "You don't claim you won the First World War do you?" And then he sat down. Now, that proves the point that if you are not really yourself or some calculated improvement on yourself, pomposity and arrogance will get you nowhere and will hurt you no end. The worst answer that I ever heard that a doctor make on the stand and I--on or off the record I can say I've heard some pretty bad ones--was made by a doctor who was doing very well until he was asked if he had ever met this patient socially before he started to treat him. He drew himself up very upright and said, "Of course not." And you could just see the shocked look on the juries face that this man had so little charity that with his badly injured patient he was so anxious to point out that they did not move on the same social cycle. I think the greatest thing a lawyer can do for a doctor that he thinks is arrogant and who's also prominent is to talk to him about how he got to be so prominent and some of his more humble days and how he conducted himself during that period of his life and try to reorient him so that when he goes on the stand before 12 [inaudible] jurors, he doesn't talk like he does to some of his junior associates on the stand. They not only are but have to be terrified of him but the jury does not, and they have a way of evaluating people based upon the way they conduct themselves on the stand. We have found that they will forgive mistakes and they will sympathize with a person who generally is trying to do his best. But if he tends to be perfect and he will not admit that he could on the same circumstances be wrong, they're very unsympathetic. We had a case recently where three questions of fact. There are sharp questions of fact between the plaintiff and the defendant. And the defendant insisted on going back on the stand after he thought the thing overnight and stating that he had been wrong on one of those three points, a very debatable thing to do, but it made a great impression on the jury. Now, I am a prime believer in this impartial testimony project that Judge Peck and Judge Bouteme and Dr. Craig and Al Conley [assumed spelling] and Beth Webster [assumed spelling] and others have put so much love and care into. I feel that it's got to be applied to more and more situations. I feel it's a great level. I don't see one objection anybody can have to pulling out of a hat one of a properly selected group of experts. As a matter of fact, we were talking at dinner, it's a great improvement on sort of a catches--catch cannon of the attempt in the past to do the same sort of thing. Very often, a puzzled judge who was utterly confounded by the black and white nature of testimony presented by the two different sides would say, "Would you mind if I would call some doctor of my acquaintance or some doctor that I will--making free, I was making free about some men and not especially and try to bring them into court. "Well, you're a little more resistant to that because you may have a feeling that that judge already has strong feelings about the cases that's gone in and you do not know whether you want a man of his selection or not. But when you know that he wants guidance and that he--that guidance must come to him as it does to both of you out of a pool of impartial experts picked by the Academy of Medicine, then it's something else again. I don't see how any fair minded person can object it. And to stress just one point about the beginning of this project, some of us who were doubters kept wondering what the consequence would be of the jury knowing, but that person was the impartial expert. Well, it hasn't worked out with any right difficulties at all. They do know we've cross-examined the case and you have to make a point with him on cross-examination as you would with one of the doctors picked by the adversary. And it is also true that we lawyers do a distinct disservice in so far as we try to substitute for the doctors who actually saw the patient. It's all right to put them on, sometimes supplemented by expert testimony, when it's very suspicious when they're not put on at all. And the whole case is discussed by people who had no personal hand on the treatment of the patient, whatsoever. In so far as we, lawyers, all the doctors contribute to that system, we are doing a distinct disservice to the community. Now, as I say, any doctor is an almost impregnable witness. If he stays to what he knows to be so, if he doesn't get off on the limb and try to be in authority about things he doesn't know about, better than he doesn't suddenly read up about a lot of exotic or bizarre features of the situation and then get tripped up with the knowledge just quite in an hour or so. Better to admit his own limitations, juries understand that, and better to just be himself. And at the--as himself, he will be an effective witness and I would challenge any lawyer except accidentally you are with the aid of factors. It shouldn't really prevail as always the one exception that broke the rule. I would challenge any lawyer, no matter what his ability, to overcome that natural advantage that a man who is in testifying to what he knows to be so based upon his professional training, he has a tremendous head start on the lawyer. And if the lawyer attempts to ridicule him or abuse him, the natural reaction on the part of the jury is to sympathize with the doctor. So, the lawyer always has the problem. If the doctor is fair, he's going to be aided by the judge who's not going to let him get trapped into any sidelines of detracting his testimony if he adheres to what he knows about. Of course, there's always the natural tendency of a judge to be a little gleeful when he watches the lawyer go to work on some doctor who is very profound, who's a professional expert and was in really as a part of the team of adversary is representing the litigant to try to nail down a situation that at least a good deal of exaggeration is involved in. There are many people in this room who both as lawyers and doctors could get me a much better lecture than I could give on this subject. But I do hope that those doctors who have never feared, who are faced with the problem, will remember the one thing I say, that is do a little studying of the problem of testifying before you go into court. And I do hope, I'm an enthusiast about this impartial testimony project and I do hope that all of the doctors and all of the lawyers contribute to this wonderful new project which I'm sure is going to be after the foundation to pass out of the picture is going to be a permanent part of our court system.

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[ Applause ]

>> Thank you very much, Mr. Martin. We now pass to the second part of the program which is the role of the physician as an expert witness in criminal actions. First speaker is Dr. Milton Helpern, Chief Medical Examiner of the City of New York and considered one of the country's most outstanding pathologists in the field of criminology. My pleasure to introduce Dr. Milton Helpern.

[ Applause ]

>> President, distinguished members of the panel, members of the academy, and guests. I'm here at a very peculiar assignment, I suppose. It's the fact that as a medical examiner and medical examiners like physician who more than any other physician gets into the criminal courts to testify in one capacity or another. As you know, when you start to do the autopsies in the medical examiners' office, in a very short time, you're called up to a period in the magistrate's court or to the grand jury. You may not know anything about a grand jury but you suddenly find yourself testifying before this very [inaudible] body. Or if the case goes further, you're in the court of special sessions in some cases and the more commonly in the court of general sessions in New York County or in the other boroughs in the county courts, or if you happen to do a case that originates in some jurisdiction outside of New York City, you usually testify in one of the superior courts or Supreme Courts. And very soon, one finds himself testifying in cases of homicide, whether he wants to or not. And one quickly becomes aware of the fact that it's wise to learn what this procedure is all about. For many years, I have taught the legal medicine at the medical school. That duty evolved upon me in a very peculiar way. I found that it was--I was invited to do it. And without knowing too much about the subject, the best way to learn is to try to start to teach. And I think that was perhaps one of the best things that ever happened to me in connection with this work. But the students are all very curious. The first day in the course, they all want to know how to testify, how do you testify? Well, I think if there's been too much emphasis on telling the doctor how to testify, in other words, that subject ought never to come up. Testifying should be a perfectly natural consequence of what you do. If you observe the admonitions of the court, if you remember what the oath says that you swear to tell the truth and then the testifying is really a matter simplicity, and if you are able to expound in any other situation, there's no reason why you shouldn't be able to explain something in the court of law, provided you appreciate what is being asked of you. I think a great deal of difficulty arises out of the fact that perhaps the courts do not instruct the medical witness as to what a question really means. In other words, learning quickly say at the end of a hypothetical question, a long series of facts are asked to be assumed and then the doctor is asked, have you an opinion, and then with reasonable certainty is rushed through very quickly, or in the criminal courts, they would certainly beyond the reasonable doubt. The doctor very often doesn't hear that part of the question that he's testifying with reasonable certainty or in the criminal courts with certainty beyond the reasonable doubt. Does he have an opinion on that basis? And not hearing that, he is very apt to express and opinion which is a pure guess, pure speculation. It's all the things we might go out of the courtroom and say, "Well, there's one chance in a million or one chance in a thousand." And then when you talk about reasonable certainty, and certainty beyond, he doesn't quite understand what you mean, and yet in cross-examination, he's very much annoyed and very [inaudible] because the opposing attorney asks him about other possibilities. And he realizes that he has to admit all of these other possibilities. Well, to me it's very inconsistent. If there are so many possibilities, then certainly the answer is not given with reasonable certainty. And yet I find that very often those answers are permitted to stand without that point being brought out. I don't think this happens too often in the criminal cases but the--in many of the cases before the--in the civil courts, the doctors really do express opinions which are not too scientific. It's true that one can't be absolute in that opinion but certainly, a lot of the questions have enough facts to enable the doctor to say sometimes that he can't answer the question. If the facts are insufficient, then the question can't be answered with reasonable certainty. And I find that many medical witnesses, those who I've talked to are completely unaware of the fact that they're answering a question with that qualification. With regard to the testimony of the position in criminal cases, what pertains to testifying in a homicide case also applies to testifying in the case of rape, in the case of other types of sexual assault, in the case of felonious assault where the victim is simply injured. The question of the psychiatric status or the mental status of the defendant and so on, I'm sure that Dr. Zilboorg will discuss and I'm not going to touch on that at all. But I would like to emphasize or mention some of the points that I have been impressed with in having testified a great many cases in the--in a great many cases in the criminal courts. In New York City, I think, we have a very--or rather we have a unique situation. It's very rare for a defense lawyer to oppose the testimony of the medical examiner at a trial with an expert for the defendant. Occasionally, it occurs where an abortionist is on trial and where the evidence is almost entirely medical. In cases of that sort, the defendant will have a medical expert to contradict or to present an opinion contrary to that which is expressed by the medical examiner who has been in charge of the case. It seems as if the medical examiner is always testifying for the prosecution, and sometimes that is asked. Well, doctor, don't you always testify for the district attorney? Well, of course, it's very obvious that one doesn't always testify for the district attorney, but because for every case in which an indictment has been brought by the grand jury, there are a great many suspicious deaths which the medical examiner autopsies with the idea that they may be cases of criminal violence--deaths from criminal violence, where the autopsy reveals that the individual died from natural causes or from a combination of disease and injury, and where the case may not even go beyond the magistrate's court, and where the action is dismissed because the case is a clear cut one of natural death. Or where if the family and the other persons who are interested in the case are of the opinion that despite the medical examiner's conclusion that violence had occurred, the case will go into the district attorney, into the grand jury, and the grand jury will then listen to the evidence. And in most cases, dismiss the case and no indictment will be brought. One sometimes loses sight of the fact that in many cases when the--

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--when the medical examiners testify, and they testify as much for the defendant and in the interest of justice to prevent an indictment which is not warranted and a testimony which may result or to avoid testimony which may result in the conviction of an innocent person. Now that situation doesn't prevail in many other jurisdictions. I think that whenever a murder case occurs outside of New York City and outside of some of counties around New York City, where we have a medical examiner system, if you follow the newspaper accounts, you know there is going to be a battle of experts. If you stop to think of what that cost the community in the prolongation of the trial in the cost of all these medical experts whom in--who are in many--who are paid for in many instances by the community and not by the family, it becomes a sort of a circus to read of the opposing opinions. And there's a case not too far away from New York as the airplane fires, where that is going on at the present time where a conviction was finally obtained after many weeks of trial and we are now--another expert has been hired after all this time to try to prove that something happened in a somewhat different way. I think we are very fortunate that that doesn't occur in our city. I think that it's a very nice thing that the medical examiners enjoy the confidence of the public. And I think that most defense lawyers, while they may cross examine the medical examiner with regard to the medical testimony as to the findings and the autopsy, the cross-examination usually involves certain points and never any questioning of the findings. Now, that doesn't mean that the medical examiner is a law unto himself and must not be questioned. But I think it does indicate that the people in the department are conscientious and certainly lean over backwards to determine whether there is some finding in the autopsy that might indicate that the death was not the result of homicide or violence. I recall a case number of years ago in which the purser on one of the steamships had been rather brutally beaten by two cowboys that were here with the rodeo show. The body was found outside the hotel room where these two cowboys were staying. And at first glance, it certainly looked as if this man had died of a homicidal assault. And if you just simply judge the body on its external appearances, there were quite a few black and blue marks on the face. But yet, when the autopsy was done, it revealed that this deceased had a very high concentration of alcohol in the brain, as high as you ever find, at so called four plus level. And also, this man had a subarachnoid hemorrhage at the base of the brain without any contusion of the brain. There was no fracture of the skull. There were some scalp hemorrhages, but nothing which would clearly indicate that the hemorrhage occurred entirely as the result of the trauma. While it was possible for that hemorrhage to have been traumatic in origin, in other words, one couldn't deny that possibility, one could not go into the grand jury and say that this man's findings were entirely the result of the assault, and I testified and in my opinion this man had died from a combination of injuries about the face from a subarachnoid hemorrhage. I left out the consideration the aggravating effect of the alcohol in his system, but I had to admit that as far as the subarachnoid hemorrhage was concerned, I could not resolve the question or--as to whether or not that was definitely traumatic. I said it could have been traumatic, but realizing that one has to give an answer with certainly beyond a reasonable doubt, I was not in the position to say that that hemorrhage was any different from what one finds in people who are alcoholic and who have a spontaneous subarachnoid hemorrhage. It may have been traumatic, but certainly the indications were not clear enough to satisfy me for the purpose of testimony before a criminal--in a criminal court. And the judge was quite concerned about the case and finally admitted that that was the correct attitude to have. The grand jury did not indict for homicide, they did indict for assault, and the said penalty was handed out on that basis. Now, I do know that in other jurisdictions, the fact that the pathologist who is entrusted with this type of work frequently gets carried away by the enthusiasm of the circumstances. In jurisdictions where the medical examiner, all the physician entrusted with the autopsies and cases of this sought, where the medical examiner is under the jurisdiction or in the department, the same department as the prosecutor or more or less where his position depends upon the prosecutor--

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--or where he is part of the police department, that there is a sort of subconscious tendency on the part of the man to please the department for which he is working. And in a number of cases, partly as the result of inexperience, partly as a result I think of this nomination, cases which we would certainly interpret as being intracranial hemorrhage from natural causes were simply pronounced hemorrhages due to assault because somebody saw the victim punched by the suspect and by the subsequent defendant. And there are a number of cases I know of where people have actually been found guilty of homicide and are--have been in prison and are still languishing in jail for the sort of case that the grand jury in New York City and any of the counties of New York City would certainly find the inadequate evidence to indict for homicide. I say that in passing because that is generally appreciated that in the criminal courts, the doctors as a rule take their assignment a little more seriously. When the doctors testify, when you heard about some of the experts in the civil courts who testify, sometimes the attitude is they're playing a game. And that they get intrigued with the case, they get intrigued with the lawyer's enthusiasm, the lawyer who engaged them. And they want to win. It's a perfectly be natural reaction. At one time I used to think that sometimes the monetary game and so on, but a good many of these people who do this sort of thing don't need the fees that they get out of these things. I mean there are people who are not unsuccessful in the profession. I'm not talking about the poor fellow who maybe starving and does the equivalent of what might be considered the temptation to do an abortion. But I'm talking about the doctor who otherwise is in good standing in the profession, whom we all know and who does a very good job with these patients, and is a pretty nice guy. But when he gets into the courtroom, he's an entirely different person. Now, when it comes to a civil case, he's apt to run wild. And I noticed that if a doctor happens to go into the courtroom and happens to catch the eye of this witness, the witness look somewhat crestfallen. He's a little bit just--his style is sort of crap by the fact that some other physician is listening to him. I think having a doctor in the audience in the courtroom has a very salutary effect on the quality of some of the expert testimony. And when the doctor gets up on the stand and looks around and he doesn't see any doctor in the audience, he really lets it out. I mean, he sort of goes to town on what he says. But when he looks back there and sees somebody who's on the same staff or somebody who's in a position to evaluate what he says, he's usually very cautious. I know of one case where that happened where after the trial, the lawyer who had engaged this doctor went up to the judge and indicated that he was very displeased with his witness because he was not more or less had been his understanding, that the witness was going to testify quite differently than he finally did on direct at the trial. So that you have that curious reaction or that curious attitude on the part of the physician in civil cases, you're not so apt to encounter it in the criminal cases. I think the doctors, they shy away from the sort of thing. They consider a trial for homicide as serious business and where it means somebody going to jail or somebody being executed, the doctors are less apt to intrude to try to upset the testimony and obstruct justice. Now that doesn't mean that there shouldn't be doctors testify available for the defense. I know that in some jurisdictions and I testified for the defendant in a number of cases, not in New York City but outside of New York City, where the circumstances indicated a complete misunderstanding of the findings and where a person was being prosecuted for a homicide which never occurred. Where one was dealing with it's either an entirely natural death or a death from some cause which could not possibly be homicidal. And it took a great deal of explaining the inconsistency of this thing before the testimony was accepted. I know of one case a number of years ago where a man had had a little tiff with his wife after having been out on a little drinking party. This was over a holiday weekend. This man ordinarily lived in New York and was summering in this place. It's about 70 or 5 or 80 miles from New York. They had this little tiff. The wife insisted on going down into the kitchen for another drink for a night cap. But he said, "You had enough to drink." And then she had a tantrum and he slapped her face. He said he always slapped her face when she had a tantrum. And this time, she got very quiet, she didn't lose consciousness and she simply lay down on the couch and had a few words with her brother-in-law and then the husband and the brother-in-law went up to bed and they thought the wife had remained on the couch. The next morning when this man went to work, he noticed his wife had a little bruise on her cheek but he thought she was asleep. And during the day, he called up and got no answer. When he got home that evening, he found she was still asleep, about 24 hours later. He called a doctor in the neighborhood. The doctor, instead of coming to the house, asked him to come over and tell him all about it. Well, the next morning the patient was still unconscious and the doctor finally consented to come and he saw these injuries on the face and then he got someone along, had the patient hospitalized, notified the authorities. Well, this man admitted having slapped this woman. In the hospital, fortunately, they did a spinal tap. The spinal fluid was crystal clear. Then the woman died, she never regained consciousness. A chemical examination was done but the results were somewhat difficult to evaluate. And the autopsy was done and the pathologist reported that he found a rupture of a basilar artery and a hemorrhage in that area there and then made the pronouncement that this was definitely traumatic as the result of this woman having been slapped on the face. Well, about the only time you found a trauma--find a traumatic rupture of the basilar artery is when the head is crushed. It's amazing how rare such a thing is and if it was a rupture, it must have occurred after this woman got to the hospital because she couldn't have a rupture at the basilar artery with a clear spinal fluid. The inconsistency was obvious and yet the prosecution had put this doctor on and this man was already in the--on the prosecution's case. The doctor testified these were homicide [inaudible]. And it took quite a bit of explaining to show the inconsistency of that. And finally, the man was acquitted. So, that in this type of work the doctor has to be awfully careful not to be carried away by the circumstances and by the story and to maintain a certain independent attitude. And we've tried to encourage that in our medical examiners here in New York. There's just one point that I did want to say before--in closing that--It has always been my conviction that in any medical legal problem, the physician regardless of his specialty should concern himself only with the medical aspects of the case and not, you said, any of the responsibility of a lawyer. The physician's responsibility is to supply scientific medical proof and the quality of such proof is entirely dependent on his ability. The physician should not become an advocate. Legal matters and problems and strategy are properly in the province of the legal profession. It is not for the physician or the pathologist to aid in such strategy by voicing opinions based on dubious medical facts or principles. Thank you very much.

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>> I was speaking with one of Dr. Helpern's students--former students about over than the last week. I think Dr. Helpern's name came down in connection--came up with in connection with this program and he was a great admirer of Dr. Helpern and he said "You know, the lawyers," I'm quoting exactly what he said. "The lawyers don't ask Dr. Helpern questions on his testimony anymore." I said, "Why not?" Well, he says, "Because they know now he never makes a mistake." That was--one of your students thinks of you, Dr. Helpern.

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Speaking also on the role of the physician as a witness in criminal actions, we now present Dr. Gregory Zilboorg, associate professor of clinical psychiatry in New York Medical College. Dr. Zilboorg has for many years been psychiatrist of [inaudible] prison, acknowledged authority on criminal liability cases. Dr. Zilboorg.

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>> Mr. President, ladies and gentlemen, it is to me a rather unique occasion and experience. The first line of the manuscript that I've prepared reads as follows. This academy stands this evening at the firm ground of progressive medical legal thought on which stood for many years. And little did I know at the time to know these two lines that I will hear a distinguished judge speak not only judiciously but that extreme humanistic understanding of what he calls very aptly the profession of testifier or the testifying expert. I do not share unfortunately the humble opinion of the previous speakers with regard to psychiatry because I believe that in our field we have many more testifying experts than in any other field of medicine. And this is not of course because we psychiatrist are constitutionally so bad but because the law in governing the expert testimony to the psychiatrist is much more confusing than the civil law, criminal law in case [inaudible]. Almost three-quarters of a century ago one of the keenest and most independent jurists this country has ever produced, Judge Edmonton, traveled across the river from New Jersey to appear on the platform of The New York Academy of Medicine and to speak with considerable understanding of what expert testimony particularly psychiatric expert testimony meant in those days. In the mid-'40s of the past century, American judges were able to improvise with great sagacity and courage as to how the expert testimony of the doctor, particularly that of the "alienist," as he was called at the time, should be treated. Justice Shaw of the Commonwealth of Massachusetts instructed juries to consider the expert opinion of "these learned gentlemen", by this he meant us, medical experts, as evidence. The task of the medical expert witness is a solemn and, more often than not, a painful one, for he who has been trained to heal and to save lives may at some time be forced by circumstances either to contribute to a man's being convicted and sentenced to death, or to stand up and fight with all the power of his service to scientific truth for a poor derelict against whom the law and public opinion are both aroused and uncompromising. It is easy, for instance, to imagine the silent anguish with which the then professor of anatomy Oliver Wendell Holmes testified against his colleague Professor Parkman, who had murdered another colleague in cold blood. It is even more difficult for a psychiatrist to testify in a case of burglary, rape, or murder and endeavor to present his honest conviction that the given burglar, or the given arsonist, or rapist or murderer in question happens to be a mentally sick people. The psychiatrist, despite his scientific honesty and medical thoroughness, is often looked upon in such cases as the defender of the indefensible. A legendary tradition, based on no facts whatsoever, seems to be firmly established or more or less firmly that the psychiatrist is in favor of letting criminals go free and uncontrolled by any sanctions. This is not true, of course. But it is an almost universal prejudice prevalent in many quarters of the legal profession and among the public. This prejudice concerns the psychiatrist in court more than any other specialist; for the psychiatrist remains a sort of diplomated and certified stranger in the court of law.

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There are a great many historical and cultural reasons why this state of affairs has existed for a number of generations. Without going into details, I may state simply this and I'll state it simply because I'm sure that there are doctors in the audience. The psychiatrist, unlike the surgeon or internist, is not asked merely to give his diagnosis and his reasons for making such a diagnosis. As a matter of fact, until very recently the courts were not interested in psychiatric clinical diagnoses at all. The law will accept the diagnosis of malaria, paresis, cancer, as valid, if properly proved. But in cases in which the mental pathology of the accused is in question, the law has established a double standard, medical and legal insanity, two different entities. Imagine the court saying to the medical man, "Yes, doctor, we agree that the person on trial suffered from appendicitis but the question that is being propounded to you is in fact this. Was this legal appendicitis, or only medical?" No lawyer or judge would be so unreasonable as to propound a question of this sort. But when it comes to the question of mental disease, which is still designated in some quarters by the antiquated term "insanity," the law insists, and the majority of jurisdictions in saying in [inaudible] to the doctor, "Yes, doctor." But is it or was it medical or legal insanity; or, to put it in other words, is it or was it insanity in the medical sense or within the meaning of the law? It is this double standard, which is both unscientific and unclinical, that puts the psychiatric expert in a singularly difficult position. The fact that psychiatrists disagree among themselves, which is frequently emphasized as a fundamental defect in psychiatry as a medical discipline, should not be overlooked, but it really should not be given too much importance. As I have pointed out elsewhere, the validity of the law and the integrity of the legal profession are not impeached by the fact that lawyers too always disagree. The major difficulty lies in the fact that the law keeps on asking the psychiatrist nonpsychiatric questions. We are asked, for instance, whether the accused was suffering from such a defect of reason that he was unable to distinguish between right and wrong. The psychiatrist, in so far as he is a psychiatrist, cannot undertake to answer questions dealing with purely moral categories. Yet the so-called right and wrong test misleads many psychiatrists in court. Early in the '80s, the legal-moral issues involved in crime became so interwoven with psychiatric improvisations that the best psychiatrists of the day, unbeknown to themselves, served the non-medical tradition of the law rather than the medical tradition of psychiatry. Therein lay the weakness of the psychiatrist. This weakness came out very clearly at the time at the trial of Guiteau, the schizophrenic exhibitionistic buffoon who murdered President Garfield. Guiteau was executed because he was adjudged sane within the meaning of the law; the judgment of the law was based on the testimony of some superintendents of the leading hospitals for the insane, led by the then formidable Dr. John P. Gray of Utica State Hospital. Yet it is extremely interesting to note that those medical men who were not confused between legal and medical concepts of insanity, the leading neurologists of the day doctors Hammond and Spitzka, saw the issues clearly, and to the last they insisted that Guiteau was an insane person. These two neurologists, both eminent medical teachers in New York of almost three quarters of a century ago, did a great deal to mobilize medicopsychological thought and to lead it in the direction of a more clinical and more humanistic forensic psychiatry, the dawning of which we are witnessing only in our time. Until very recently, it was pretty nearly impossible to convince a court that the psychiatrist is the true specialist of a definite branch of medicine. As a matter of fact, it is still possible for a doctor to be admitted to testify as an expert on mental conditions of an accused without his really being a specialist in the field of psychiatry. Then, too, courts still permit expert testimony as to psychiatric issues even if the alleged expert did nothing at all but sit for a time during the trial at the side of the prosecutor or the defense attorney without ever having examined the person about whom he is willing to give testimony under oath. It would seem that both the law and the ethical standards of the profession should forbid such practices. As long as these are not forbidden, both justice and medicine will more often than not be done a substantial disservice. All these and many other defects and deficiencies in the process of psychiatric expert testimony are not a result of either neglect or ill will on the part of the law or of psychological medicine. They are rather a result of the too slow growth of mutual understanding between psychiatry and the law. This understanding has had to go through many hardships; so have criminal law and psychological healing in the course of many centuries. It is therefore a matter of special interest as well as of satisfaction for psychiatrists and jurists in the United States to take cognizance of the turn psychiatric testimony was permitted to make in some of our courts within the last year or so. To call this change which is now taking place merely a turn is perhaps a gross understatement. For here is what is happening under our own eyes in some of the courts of Federal jurisdiction like the Third Eastern District comprising Delaware and some part of Pennsylvania and Virgin Islands, or the United States Court of Appeals of the District of Columbia. In rendering some of their decisions judges like John Biggs, or Bazelon, began to lean heavily on clinical psychiatrist data presented by psychiatrist rather than on the shopworn formulae of the right and wrong tests and the other accoutrements of "legal insanity" which had been covered since i843 by the so-called M'Naghten Rule. A recent decision, rendered on July first, 1954, by the US Court of Appeals for the District of Columbia, Judge Bazelon wrote the opinion with Judges Edgerton and Washington concurring, definitely states that the right and wrong test, and therefore by implication the M'Naghten Rule as a whole, no longer corresponds to the realities which are offered by psychiatric clinicians. The opinion referred to, known as the Decision in the Monte Durham case, does away even with the so-called irresistible impulse which was considered a legitimately in federal courts and in some state jurisdiction as it does away implicitly with such old variants as partial or temporary insanity. Instead, this opinion establishes the following rational and scientific rule, "The psychiatrist who comes to testify in a criminal trial, those no longer needs to straddle between medical and legal mental illnesses, all he is asked to tell and demonstrate is that the given defendant is mentally ill and that his crime or offense was a direct result of this, his mental illness. This is a serious task that the United States Court of Appeals for the District of Columbia has assigned to the psychiatrist. It might require of the psychiatrist now that he study offenders and examine them clinically with much greater care before he comes to testify than has often been the custom or silent tradition heretofore. But at least and at last the medical discipline called psychiatry is permitted to take the witness stand with all the dignity, medical and professional, which is due it. There is great opposition felt even in the District of Columbia now to the recent decision in the Monte Durham case. Some committees are looking into the matter and have hearings, yet it not only looks as if the decision is here to stay, but it is hoped that various State criminal codes may gradually start on the same open road. If this happens, the old unpleasantness of the so-called "adversary proceeding," in which psychiatric expert testimony has so often been engulfed in criminal courts, is bound to disappear. To be sure, we still have a very long way to go. How slow our progress is we might judge from the fact that the father of "medical jurisprudence of insanity" in America, Isaac Ray, rose to his full scientific and moral stature against the right and the wrong test as early as 1838. He had influenced the great judge of his day, Judge Doe of New Hampshire, and the present New Hampshire law governing the problem, the best we have in this country to date, was created under the direct influence of the ideas of Isaac Ray. Yet Dr. Ray was seldom if ever mentioned by other jurists. He was a psychiatrist, of course, and not a lawyer. It is rather significant that the opinion in the Monte Durham case, which quotes a number of contemporary psychiatric sources, quotes most often from the writing of Isaac Ray. Thus, almost 120 years have passed before the court of at least one jurisdiction made Ray's progressive views an active ingredient of a juridical and judicious decision. We must bear in mind that the roots of the present difficulties and evils with regard to psychiatric testimony in criminal actions go deep into the ages and are also part and parcel of the prejudices to be found in the English Common Law governing the subject, and we are inheritors of it. If we bear in mind this perspective, we cannot help but be impressed with the newer trends in certain courts. They bid fair to mark the final and rightful entry of clinical psychiatry into the courts, replacing the old errors and the ad hoc improvisations of experts who heretofore were sandwiched in between formulae that no longer correspond to our clinical knowledge and the demands that the psychiatrist tell the court about some legal entity which is only what it has always been, a nonclinical abstraction. One more last word. The recognition of clinical psychiatry in the court as an expert tool, instead of a contentious plaything between the participants in the given adversary proceeding, brings into the court the conception of the individual as an indivisible unit, the personality as a whole. This is not only in harmony with present-day psychiatry, but also with medical science and biology in general. This is an epoch-making turn in the history of the relationship between psychiatry and the criminal law. Thank you.

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>> In behalf of the economy, I'd like to thank each of our speakers for giving us this most instructive and interesting evening. And I would like to report on the election fellows, Dr. [inaudible], please?

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Meeting is now adjourned. Thank you very much.

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