Page images
PDF
EPUB

growths are very scanty, the latest compilation by Sendziak of Warsaw comprising only 502 cases altogether, 452 being carcinoma and fifty sarcoma. Out of this number the subhyoid method for reaching the tumor was chosen twelve times, in eight cases of carcinoma and in four of sarcoma. In carcinoma, removal should be attempted by this method, according to the compiler, in cases of extrinsic carcinoma, by which term the French designate carcinoma which originates in the epiglottis, the aryepiglottic fold, the arytenoids and the upper and posterior parts of the interarytenoid fold. More than one-half of the cases ended fatally from the operation, a result by no means encouraging. In the removal of four sarcomas by this method, two are reported as successful, but no details are given. In the third, two endolaryngeal operations were followed by return of the disease, which remained well for one and one-half years after the excision of the growth through the thyrohyoid opening. The fourth patient fared well for two months, but an abscess formed in the cicatrix of the wound, which had healed by first intention, and the subsequent history could not be traced. In the author's case the operation was done for the relief of the dyspnoea and dysphagia, No preliminary teacheotomy was done, and local anæsthesia by infiltration with hot water and the application of a four per cent solution of cocain to the mucous membrane, permitted all the necessary manipulations without pain, and with the patient's intelligent co-operation. Laryngoscopic examination of the patient's throat, a man aged seventy-three showed the presence, on the right side near the base of the epiglottis, of an oblong tumor of irregular outline, extending across two-thirds of the larynx. The tumor also extended downwardly and inwardly covering the esophageal opening. The operation was done as follows: the skin was infiltrated and a transverse incision was made through the integument about a third of an inch below the hyoid bone, extending from the anterior border of the sternomastoid muscle to a similar point on the opposite side. The anterior and external jugular veins were divided between two ligatures, together with the superficial fascia. After cocainizing the mucous membrane of the throat, the thyrohyoid and mucous membrane were incised through to the opposite side. A loop of silk thread passed through the epiglottis drew it downward and forward, thus giving wide and free access to the cavity. The growth proved to be one and one-half inches wide, with a base fully an inch in diameter. The incision of the mucous membrane had laid open the base of the tumor and one blade of a pair of scissors was readily inserted beneath the mucous membrane, and the tumor severed from its connections. The hemorrhage was trifling; the pressure of the hemostatics controlled it perfectly. The several structures were reunited with catgut-sutures, and union by first intention resulted. After fortyeight hours, rectal alimentation was discontinued and liquid nourishment introduced by the mouth. The patient lived for a month; during this time the dyspnoea and dysphagia had disappeared. Death resulted from inanition.

ALBANY

MEDICAL ANNALS

Original Communications

For the ANNALS
HISTORICAL AND PRACTICAL CONSIDERATIONS

REGARDING EXPERT TESTIMONY.*

By LEARNED HAND, LL. B.,

of the Albany Bar. No one will deny that the law should in some way effectively use expert knowledge wherever it will aid in settling disputes. The only question is as to how it can do so best. In early times and before trial by jury was much developed, there seem to have been two modes of using what expert knowledge there was: first, to select as jurymen such persons as were by experience especially fitted to know the class of facts which were before them, and second, to call to the aid of the court skilled persons whose opinion it might adopt or not as it pleased. Both these methods exist at least theoretically at the present day, though each has practically given place to the third and much more recent method of calling before the jury skilled persons, as witnesses. No doubt there are good historical reasons why this third method has survived, but they by no means justify its continued existence, and it is, as I conceive, in fact an anomaly fertile of much practical inconvenience.

*So far as concerns the attempt to trace the outline of the origin of expert evidence, I must acknowledge my great and almost entire indebtedness for materials to Professor James B. Thayer, of Cambridge, who has so much made the whole subject of evidence his own that no one can come into it without feeling, to a certain degree, a trespasser. It is but fair to say, however, that Professor Thayer is in no sense the sponsor of any one of the conclusions in this article, historical or otherwise, and that I do not even know that any one of them would meet with his approval, however grateful to me might be such a result.

In regard to the material in Howell's State Trials, I cannot say that I have found by any means all of it. I have been over all the trials up to 1780 with more or less thoroughness, but cannot of course, suppose that much has not escaped my notice.

The first method mentioned above was to empanel a special jury, which in this connection means a jury of persons especially fitted to judge of the peculiar facts upon which the particular issue at bar turns. The practice is certainly old, at least in one instance of like kind, the jury of matrons de ventre inspiciendo. Bracton* gives the form of the writ in which it is essentially the same as the actual practice even in this century, in 1838.t Moreover, we find in the writ the reason for this pecuilar procedure. The legales et discretas mulieres per quas veritas melius sciri poterit shall see the woman whose condition is to be examined and are to satisfy themselves by certain specified methods, quibus inde melius' possit certiorari utrum prægnans sit necne. True it is we do not learn from Bracton to what extent what the jury said was binding. They did not speak of the whole issue between the parties and the procedure was incidental merely to the issuance of a writ to the lord to let into possession one tenant or another, but I cannot think that this is a distinction of any significance; the fact remains that a jury of persons supposed to be especially skilled was summoned and their conclusion was in fact followed by the court, or at least formed an element as fact in its decision. This practice we know has continued even to this century. I

But the writ de ventre inspiciendo was by no means the only case of a jury of persons peculiarly qualified upon the issue. The custom was not only known but exceedingly common in the city of London throughout the fourteenth century in trade disputes. 8

Many of the cases are informations by the supervisors of the different guilds who in accordance with their oaths brought before the Mayor offenders against the trade regulations. The Mayor then summoned a jury of men of that trade and their verdict decided whether the defendant had offended the trade regulations and upon it the Mayor gave sentence. I

*DeLeg. Lib. II. fol. 69.
+Reg. v. Wycherly, 8 C. and P. 262.
Willoughby's Case, Cro. Eliz. 566 (1597) Reg. v. Wycherly (supra).

$ These cases are to be found in Henry Thomas Riley's "Memorials of London and London Life in the 13th, sath and 15th Centuries." Longmans, Green & Co., 1868.

I The following are some instances:

Fishing nets with meshes smaller than those required by the trade ordinance Riley, pp 107 (1312), 135 (1320), 214 (1343), 219 (1344), 220 (1344), 483 (1385), 486 (1386).

Improper tanning of hides: Riley, pp. 135 (1320), 420 (1378).
False tapestry: Riley pp. 260 (1350), 375 (1374).
Improper hats and caps: Riley pp. 90(1311), 589 (1391).
False pewter vessels: Riley, p. 259 (1350).
False gloves: Riley, 249 (1350).
False wine: Riley, 318, (1364).

But this was not the only case. Often it happened that either the public prosecutor or some private person, either individually or through the public prosecutor, would present to the Mayor his grievance in that he personally had suffered false usage at the hands of tradesmen, e. g., selling him putrid meat, or bad wine. In these cases the Mayor would likewise summon persons of the trade of the man accused, as being well acquainted with the facts and their verdict would decide and the Mayor direct sentence accordingly.*

These cases at least show that in an urban community where alone for the most part questions involving special skill would come up, the practice was well established in the fourteenth century of having the issue actually decided by people especially qualified.

The special jury continued as an institution of England. So we find in 1645 † that the court summoned a jury of merchants to try merchants' affairs "because it was conceived they might have better knowledge of the Matters in Difference which were to be tried, than others could, who were not of that Profession.”

Blackstone speaks of the special jury as still an existing institution though it had then for the most part been limited to cases where a "struck” jury is demanded owing to a supposed bias in the sheriff; a form of impanelling a jury which went under the same name as the jury of experts, and which exists to-day.

I mention this form of using expert knowledge, not because it is a feasible or practical means of solving our present question, but to show that our present method of using experts as witnesses was not the earliest or the only means used.

The second method mentioned above was to summon to the advice of the court certain skilled persons to help it out of its difficulties. I wish particularly to distinguish here between what we should to-day call matter of fact for the court and matter of fact for the jury. The cases I shall mention are those in which during the procedure incident to the conduct of a case there arose some question of fact which the court had to decide. That is, the court having no rule of law to administer and not intending to establish any, had a mere question up of the decision of something in that particular case, and summoned experts to help it where its knowledge was lacking.

*The following are instances of this:

Selling putrid victuals, the prosecution being apparently public, no complainant appearing in the case: Riley, pp. 328 (1365), 408 (1377), 448 (1381), 471 (1382), 516 (1390)

Selling putrid victuals, private prosecution; Riley, pp. 266 (1351), 464 (1382). Malpractice by a surgeon, whether the prosecution was public or private does not appear: Riley, p. 273 (1354).

Lilly's Practical Register, II, 154.

In 1345* in an appeal of mayhem the court summoned surgeons from London to aid them in learning whether or not the wound was fresh. This was, however, in deciding whether or no the appellant should be allowed to go to trial at all. In 1506** it was discussed collaterally by the court and left in doubt whether the question of the appellant's wound, as permanent or not, was a proper question for the court or for surgeons. Perhaps the learning in the procedure of appeal of battle had become somewhat archaic in 160 years.

Again in construing a bond in 1494 | which contained certain doubtful words, the court called to its assistance certain "masters of grammar," who incidentally failed to help it much. Again in 1555 ft we find the court saying that it is accustomed to call in grammarians to help it interpret the pleas before them when the court's Latin halts a little. The same usage became well established in the interpretation of commercial instruments; and in the eighteenth century extended itself, as we know, not only from decisions made by the court upon the facts, but even to the rulings it made upon points of law For example Lee, C. J., in 17538 charged the jury upon the liability of the parties in accordance with the opinion of certain merchants who had testified.

Lord Hardwicke also ruled in accordance with the views of the reputable merchants whom he summoned. 88

Even Lord Holt before deciding the celebrated case of Buller y. Crips asked the opinion of London'merchants as to the effect of refusing negotiability to promissory notes.

The real question that arises is how to put at the disposal of the jury the knowledge of experts in their decision of the issue. This though a kindred question should be sharply distinguished.

Before considering this question we must however try to discriminate between an expert witness and any other. First it must be remembered that an expert witness may have observed the

*Anonymous Lib. Ass 28 pl. 5 (28 Ed. III.) **Anonymous, 21. H. VII, 33 pl. 30.

Anonvmous 9 H. 7, 16 pl. 8. +Buckley v. Thomas, i Plow. 118. For such a case in 1649, see Pickering v. Barkley, Styles 132. Fearon v. Bowers, 1 H. Black, 304, note a. & Ekins v Macklish, Ambler 184(1753), and Kruger v. Wilcox, Ambler 25a (1955) 16 Mod. 29 (1703).

See also a late case: Chauraud v. Angorstein, Peake 43 (1791).

« PreviousContinue »