CHAPTER I

LEGAL CRIMINAL PROCEDURE

ENGLAND AND IRELAND

=The Coroner‘s Court.=--The office of coroner is mentioned in a charter in 925. Coroners were formerly chosen for life by the freeholders of the district, but their election is now in the hands of the County Councils. Their duties were first clearly pointed out by the Act 4 Edw. I. c. 2, 1275 (_De officio coronatoris_).

At the present time the duties of the coroner are chiefly to hold inquiry into the cause of death when there is any reason to doubt that death resulted from natural causes.

When death results from natural causes, and under ordinary conditions, the medical attendant is bound, under a penalty of forty shillings, to certify as to the cause. The registrar of deaths accepts such a certificate when accompanied by oral testimony given by a person who was present at the time of death, and issues a certificate accordingly, authorising the interment of the deceased.

Should conditions obtain to prevent the medical attendant from forming an opinion as to the cause of death, or which would lead him to infer that death did not take place from natural causes, he should notify the matter to the coroner. Such would be necessary if death were directly or indirectly due to accident, or if death occurred within a reasonable time after an accident, although due to some other cause, or if an accident happened to deceased during the course of a chronic illness, the accident, however, not being in itself necessarily fatal.

It would be necessary also to notify the coroner if the death took place under circumstances which, to the medical attendant, appeared suspicious, such as might arise from culpable neglect or cruelty on the part of persons in charge of the deceased. The same would apply to cases in which the cause of death was unknown. A great responsibility rests on the medical practitioner, in that he is compelled under a penalty to certify as to the cause of death; while if he do so without due consideration, or carelessly, he renders himself liable to censure or legal proceedings.

It may happen that in certain cases--for example, where an accident befell the deceased during the course of a lingering illness, and which in itself had no causal relations to the death--the doctor may be prone to certify the death as from the illness alone, taking no note of the accident; and pressure may be brought to bear upon him by the relations of the deceased to so certify and save them the trouble and publicity of an inquest. It should be remembered, however, that although the certificate be accepted by the registrar, and interment take place, the coroner, if informed of the matter, may order the body to be exhumed for the purposes of inquest.

There are coroners who, on receipt of information of death from uncertain causes, may elect, on evidence obtained apart from the medical practitioner, to notify the registrar authorising the interment without holding an inquest. The law, however, states that, “except upon holding an inquest, no order, warrant, or other document for the burial of the body shall be given by the coroner” (50 and 51 Vict.).

The Coroners Act (50 and 51 Vict.) provides that, when a coroner is informed that the dead body is lying within his jurisdiction, and there is reasonable cause to suspect that such person has died a violent or unnatural death, or a sudden death, of which the cause is unknown, or died in prison, he shall summon a jury of not less than twelve, or more than twenty-three, men to inquire touching the death of such person aforesaid.

If the deceased were attended at his death, or during his last illness, by a legally qualified medical practitioner, the coroner may summon such practitioner as a witness. If the deceased were not so attended in his last illness, the coroner may summon any legally qualified medical practitioner in actual practice, in or near the place where the death happened, to give evidence as to the cause of death. In either case the coroner may require the medical witness to make a _post-mortem_ examination of the body, with or without analysis of the contents of the stomach or intestines.

Should a statement on oath be made by any one before the coroner, that in his belief the death of the deceased was caused partly or entirely by the improper or negligent treatment of a medical practitioner, such medical practitioner shall not make or assist at the _post-mortem_ examination.

If a majority of the jury are not satisfied with the medical evidence, they may require the coroner, in writing, to summon another legally qualified practitioner, named by them, to make a _post-mortem_ examination, with or without analysis of the contents of the stomach and intestines, and give evidence as to the cause of death. A medical practitioner who fails to obey the summons of a coroner, issued in pursuance of the Coroners Act, is liable to a penalty not exceeding five pounds, unless he shows good and sufficient cause for not having so done. When evidence has been given before a coroner or magistrate, and the case is afterwards sent for trial, copies of the medical report and depositions are given to the judge and counsel, so that evidence given at the trial is compared in detail with that given before the coroner or magistrate. In view of this, it is imperative on the part of medical witnesses to carefully consider their evidence before giving it.

The object of a coroner‘s inquest is to ascertain whether the death of the person, over whose body the inquest is held, was due to natural causes or not.

The proceedings are not directed against any one, they do not constitute a trial, and hearsay evidence is admissible. The coroner and jury alone have the right to interrogate the witnesses. Counsel may be present in the interest of persons concerned with the inquest who may desire such assistance, but counsel may not cross-examine any witnesses, and may only question them by permission of and subject to the decision of the coroner.

Witnesses are examined on oath, their evidence is taken down, and should the case be transferred to a superior court, they are bound under a penalty to appear and give evidence. The coroner may adjourn an inquest for the purpose of obtaining further evidence, if he should deem it necessary.

Should the verdict of the jury charge a person with murder, the coroner issues a warrant for the arrest of the person, unless the person be already in custody. In the case of manslaughter the coroner may accept bail. According to the Act 4 Edw. I. c. 2, the coroner and jurors must _view_ the body, this being _absolutely necessary_ to give jurisdiction to him, and he has the power, within a convenient time after the death, to order a dead body to be disinterred for this purpose.

Order of Summons from the Coroner to a Legally Qualified Medical Practitioner

=_“London._=

_To wit_--_To_ ____________________ Esq., Surgeon.

“Sir--By virtue of this my Order as one of His Majesty‘s Coroners for the _County of London_ you are hereby required to be and appear before me and the jury on ______ day, the ______ day of ______ at ______ o‘clock in the ______ noon, at ______ in the Parish of ______, then and there to give evidence on His Majesty‘s behalf touching the death of ____________, and to make or assist in making a _post-mortem_ examination of the Viscera of the Head, Chest, and Abdomen of the body of the said ____________ with ______ an analysis and report thereon at the said Inquest. And herein fail not at your peril.

Dated the ______ day of ____________ 19.” (Signature of Coroner.)

=Prosecution.=--There was no Public Prosecutor in England until some years ago, when an Act was passed authorising the appointment of such an official, who should undertake the duty of prosecuting in certain and specific cases of public importance, and in districts where the appointment might be agreed upon. In ordinary circumstances it has usually been left to the person against whom a crime has been committed to prosecute the offender.

=Magistrates‘ Court.=--In the Magistrates‘ Court of Petty Sessions, the proceedings are for the purpose of investigating as to the culpability or non-culpability of a person accused of some criminal act, or criminal negligence.

In this Court the accused person must be present, as the inquiry is relative to his guilt or innocence. Witnesses in this Court may be examined and cross-examined by counsel. A magisterial investigation cannot take place if no arrest have been made. The magistrate may deal summarily with cases of simple assault and such-like of minor import, but when the case is of a more serious nature, and in suspected manslaughter or murder, the accused person is committed to a superior Court for trial, such as the Court of Quarter Sessions, the Assize Court or, in London, the Central Criminal Court, all witnesses, medical or lay, being bound over to appear and give evidence. The summons to the Assizes is called a _subpœna_, and all witnesses receiving the same, when accompanied with reasonable travelling expenses, are bound to obey it.

=Assizes.=--The Assizes comprise two Courts, the Crown Court and the Civil Court. A separate judge presides over each. In the former only cases of a criminal nature are tried; in the latter suits are tried between two parties. Medical practitioners may be called upon to give evidence in either Court, according to the nature of the case in which they are directly concerned.

Prior to a case being investigated by a judge and petty jury, it has to come before the grand jury. This jury decides whether the case is a proper one to proceed to trial.

The grand jury hear the evidence of such witnesses as they think fit, apart from counsel. Should the grand jury consider the case one for trial, they return a “true bill,” and it goes before the judge and petty jury; if not, they “cut the bill,” and the accused is discharged.

Medical witnesses may be called upon, when under subpœna, to give evidence before the grand jury.

The Crown Court of Assize consists of a judge and a sworn jury of twelve men, called the petty jury. The latter hear the evidence of witnesses, and are guided by the summing up of the judge. They deliver a verdict after consideration of the evidence by which the accused person is found guilty or not guilty. The judge, after receiving the verdict, allots such punishment as he considers just. In certain cases the prisoner when convicted may appeal to the Court of Criminal Appeal.

In the Assize Courts only barristers can plead; in the Magistrates‘ Courts of Petty Sessions, solicitors or barristers may plead.

In the Courts of Assize the witnesses are subject to the following routine of examination. First, _Examination-in-chief_: this the witness undergoes at the hands of the barrister who is pleading on behalf of the party by whom the witness is called. In this examination such questions are put to the witness as may elicit answers conveying to the judge and jury a clear account of all the witness knows with regard to the case. After the examination-in-chief, the counsel of the opposite side subjects the witness to _cross-examination_, in such a way as to shake the evidence given by the witness during his examination in chief in points which would weigh against the prospects of his client. _It is during cross-examination that a medical witness may be subjected to questions which suggest answers capable of a different interpretation from those he had previously given._ After cross-examination, the counsel for the party upon whose side the witness appears subjects the latter to _re-examination_, if he consider it necessary, during which he endeavours to clear up any doubtful points in the evidence given by the witness during cross-examination, with the purpose of eliciting an explanation of their meaning.

The judge and members of the jury may put such questions to the witness as they may consider necessary.

The same method of procedure applies to the higher Courts.

SCOTLAND

In Scotland public prosecutors are appointed by the Crown. The chief public prosecutor is the Lord-Advocate; next in rank come the Deputy-Advocates and Procurator-Fiscal. The Lord-Advocate and Deputies take charge of cases in the High Courts of Justiciary, the Procurator-Fiscal in the lower Courts.

The duties of the public prosecutor are to bring all accused persons to a bar of justice; and in addition he acts as the coroner does in England. Any person who is supposed to know anything about the case is interrogated by the Procurator-Fiscal, or is _precognosced_. The examination is made on oath; the written evidence constitutes the _precognitions_. Counsel for the accused or for the Crown may precognosce witnesses.

The preliminary examination of the accused takes place before the Sheriff or Justice, and he may commit the person for trial or liberate him, according to the evidence.

The precognitions, in cases of committal, are forwarded to the Crown Counsel in Edinburgh, who may stop the proceedings, or send the accused before the High Court, Circuit Court of Justiciary, or Sheriff, with or without a jury. The Justiciary Courts correspond to the Courts of Assize in England. Should the case be so transferred for trial, the witnesses are summoned by writ. A penalty of £5 may be imposed for disobedience to such writ, or imprisonment pending expression of regret before the Court, and tendering bail for appearance.

Common witnesses and medical witnesses to fact are not allowed in Court except when giving evidence. Expert witnesses may be allowed to remain in Court by mutual consent of counsel. When one expert witness is giving evidence, other experts are required to leave the Court, and no expert witness who may have been present during the examination of common witnesses is allowed to give evidence as to facts.

The verdicts of “Guilty” or “Not guilty” are similar to those given in England, but in addition a verdict of “Not proven” may be given, and all are final. In the case of the last two the accused cannot be tried again.

In Scotland the verdict of a bare majority of the jury holds good, whereas in England the decision must be unanimous. In the case of a suspicious death, or a dead body being discovered, the Procurator-Fiscal, acting as a coroner does in England, but without a jury, may direct a medical man to examine the body and send in a report; but all reports must be certified _on soul and conscience_, without which they are of no value. Should the medical examiner be satisfied without making an internal examination, he may certify to the Procurator-Fiscal on the result of his external examination.

Should the Procurator-Fiscal consider it requisite to have a complete examination, he issues a warrant to that effect to the medical practitioner who has seen the case, and usually associates with him the most skilled practitioner available in the neighbourhood. The warrant consists of a petition by the Procurator-Fiscal, addressed to the local judge, setting forth the grounds of his application, and craving warrant to the inspectors named to make the necessary examination. This is signed by the Procurator-Fiscal, and countersigned by the Sheriff or local judge, if granted. The receivers of this warrant are empowered to take full custody of the body, and they should be _careful to carry the warrant with them_, or they may be refused admission pending its production, which may result in great waste of time, and end in a miscarriage of justice. The Procurator-Fiscal may supply to the medical inspectors portions of the precognitions likely to bear on the medical part of the inquiry. Medical men ought to be on their guard against performing dissections in cases evidently judicial without previously warning the proper law authorities, or without a warrant; for instances have occurred where, owing to the want of proper support, obstructions were thrown in the way which might have proved fatal to the value of the investigation; and, besides, the premature disclosure of the results of the inspection might frustrate other important steps of the precognition.

The medical men so engaged will, as a rule, find it to their interest to exclude all visitors, whether lay or professional, from the room during the dissection. The regulations issued by the Crown Office, Edinburgh, direct that no one should be allowed to be present at the examination out of mere curiosity, and recommend that any one not engaged in the inspection, but who is in attendance to give information, or for any other purpose, and who may afterwards become a witness, should remain in an adjoining room. The medical inspection often furnishes good tests of the value of other evidence in the case; therefore, it is desirable that the general witnesses should not have an opportunity of knowing what is observed in the dissection of the body. The notes of a case should be made at the time of inspection or immediately afterwards. In the case of _post-mortem_ examinations it is better that while one inspector conducts the practical details of the examination, the other should take notes of its successive steps, indicating all the points inquired into, with the observations made, the appearances presented, negative as well as positive, stating simple facts alone, without either generalisations or opinions. These notes should be looked over by both inspectors before the body is sewn up, so that omissions in the notes, or in the inspection itself, may be then supplied.

Citation of Witnesses--Subpœna

In England, except upon a subpœna, a medical man is not bound to attend as a witness at a trial, and then it should be served a reasonable time before the trial, in order that he may make proper arrangements for the carrying on of his business during his absence. In civil cases his reasonable expenses should be tendered to him at the time the subpœna is served, or within a reasonable time of the trial; and he may refuse to give evidence unless his charges are paid, provided his objection be stated _before he has been sworn_. A witness may be summoned from any part of the United Kingdom.

The question has been raised, whether a _scientific witness_ was bound to attend when subpœnaed. The law on the point is enveloped in some obscurity; the better course is therefore to attend.

No tender of fees is necessary in criminal cases, “except in the case of witnesses living in one distinct part of the United Kingdom being required to attend subpœnas directing their attendance in another, who are not liable to punishment for disobedience of the process, unless at the time of service a reasonable and sufficient sum of money, to defray their expenses in coming, attending, and returning, have been tendered to them.” When summoned to two cases, the one civil, the other criminal, the witness must attend the criminal; or when both cases are the same, the one to which he first received the subpœna--notifying, however, to the counsel engaged on the other case his unavoidable absence, and giving the reasons which prevent his attendance.

In Scotland, witnesses are summoned by a writ or citation, which must be delivered at the residence of the witness a reasonable time before the trial. Delivery to a member of the family, or a servant not within the house, will not do. If access cannot be gained, the copy is fastened to the most patent door of the house. If the witness do not appear, and it be clearly shown that he was duly cited, a warrant for his apprehension may be issued, and he becomes liable to be incarcerated till he finds “caution” for his due attendance at the trial. His non-attendance may also, unless good excuse be forthcoming, render him liable to a fine, or unlaw, of a hundred merks Scots--about £5.

=Form of Subpœna in England.=--Where a medical witness has given evidence in a case in which the accused person has been committed for trial to a superior Court, he is summoned to give evidence at such Court in the following terms:

[Sidenote: L.S.]

“George, by the grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, To ______________________ Greeting: We command you, and every of you, that all business being laid aside, and all excuses ceasing, you do in your proper persons appear before our Court of Quarter Sessions of the Peace (or other Court), assigned to keep the peace in the City (or Borough) of __________________________, and also to hear and determine divers Felonies, Trespasses, and other Misdemeanours in our said City (or Borough) committed, to be holden within the _______________________, in the said City (or Borough), on ____________________ the _______ day of _________________ now next ensuing, at the hour of ten o‘clock in the forenoon of the same day, to testify the truth and give evidence, on our behalf, against __________________ in a case of _____________; and this and every of you are in no wise to omit, under the Penalty of Twenty Pounds for you and every of you. Witness, ___________________, Esq., our Recorder at ____________ aforesaid, the ________ day of ____________ in the ________ year of our reign.”

“(Signed) “Clerk of the Peace.”

In =Scotland= the following is the form of summons to appear before the High Court of Justiciary, and at an inquiry into a fatal accident:

(I.) “_To_ __________________________________________________

“You are hereby lawfully cited to attend a sitting of the High Court of Justiciary within the Criminal Court __________, upon the ___________ day of _________ Nineteen hundred __________ years, at ______ o‘clock _______ noon, as a witness in the case against _______________________, prisoner in the Prison of _______________, and that under the pain of One Hundred Merks Scots.

“(Signed) “Sheriff-Officer.

“_Note._--Any witness failing to appear in terms of citation not only forfeits the penalty, but is liable to be apprehended and imprisoned.

“(Preserve and bring this Copy with you.)”

FEES ALLOWED TO MEDICAL WITNESSES

=Coroner‘s Court.=--The Coroners Act states that fees for medical witnesses attending an inquest shall be, for attending to give evidence at an inquest whereat no _post-mortem_ examination has been made by the witness, one guinea. For making a _post-mortem_ examination and attending to give evidence, two guineas. No fee can be obtained for making a _post-mortem_ examination by a medical practitioner, unless it be made by order of the coroner. Extra fees are not provided for when the inquest is adjourned. For an inquest held over the body of a person who has died in a lunatic asylum, public hospital, infirmary, workhouse infirmary, or other medical institution, whether endowed or supported by voluntary contributions, the medical officer of such institution shall not be entitled to a fee. Should the dead body of a person be taken to such an institution, the medical officer, if summoned to give evidence, is entitled to the usual fee. Such fees are paid at the termination of the inquest.

=Magistrates‘ Court.=--If the witness reside within two miles of the Court, the fee is ten shillings and sixpence; beyond two miles, one guinea.

=Courts of Quarter Sessions=, and =Central Criminal Court of London=.--One guinea per day, and two shillings a night away from home, with threepence per mile each way travelling expenses.

=Assize Court.=--One guinea per day, with two shillings a night away from home, and a reasonable and sufficient amount for travelling expenses. If there be no railway, threepence a mile each way. Sundays are not included.

=Court of Probate and Divorce.=--One guinea per day within five miles of the General Post Office. If beyond, two or three guineas a day, with expenses out of pocket for coming and returning.

=Court of Appeal.=--One guinea a day if resident in London; two or three guineas, with travelling expenses, if from a distance.

=County Court.=--From fifteen shillings as an ordinary witness, with one guinea per day expenses if from home, to one to three guineas for qualifying as an expert witness. With attendance at Court one to two guineas and expenses one to three guineas per day.

=In Civil Cases.=--An arrangement is usually made with the solicitor for a fee; this should be made before accepting the subpœna. A written undertaking for payment, and properly stamped, should be obtained from the solicitor before giving evidence; in default of this, the witness should appeal to the judge from the witness-box before being sworn. After taking the oath a witness is bound to give evidence, and the solicitor may refer him to his client for the fee, which may lead to disappointment.

IN SCOTLAND

The fee for attendance at High Courts of Justiciary or the Sheriff Criminal Court is one guinea per day, if the Court be held in the town in which the medical witness lives. For a post-mortem examination and report, two guineas. For an analysis of blood or other stains on clothing, two to four guineas, depending upon the amount of work done.

If the witness come from a distance, he is allowed two guineas per day, both for the actual attendance at Court and also for each day occupied in travelling to and fro, with a guinea a day for travelling expenses.

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