So long as the ordinary ideal of punishment prevails, a crime must consist of an act coupled with an intent to do the thing, which probably means an intent to do evil. This is no doubt the right interpretation of intent, although cases can be found, generally of a minor grade, which hold that evil intent is not necessary to the crime. Under the law as generally laid down, insanity is a defense to crime when the insanity is so far advanced as to blot out and obliterate the sense of right and wrong or render the accused unable to choose the right and avoid the wrong. Of course, legal definitions of scientific terms, processes, or things, do not ordinarily show the highest wisdom. It is safe to say that few judges or lawyers have ever been students of insanity, of the relation of “will” to “conduct,” or of other questions of science or philosophy. Each man confines himself to his field of operation, and the love of living does not induce him to go far from the matter in hand, which to him means the base of supplies.

The insane are exempted from punishment for crime on the ground that they are not able to prepare and attend to their cases when placed on trial and on the further ground that their “free will” is destroyed by disease or “something else,” and therefore they could form no intent. In another place I have tried to point out the fact that the acts of the sane and the insane are moved by like causes, but this is not the theory of the law.

Insanity is often very insidious. Many cases are easily classified, but there is always the border line, the twilight zone, which is sure to exist in moral questions and in all questions of human conduct, and this is hard to settle. It is generally determined by the feelings of a jury, moved or not by the prejudice of the public, depending on whether the community has been lashed or persuaded to take a hand in the conduct of the case.

Lawyers and judges are not psychologists or psychiatrists, neither are juries. Therefore the doctor must be called in. As a rule, the lawyer has little respect for expert opinion. He has so often seen and heard all sorts of experts testify for the side that employs them and give very excellent reasons for their positive and contradictory opinions, that he is bound to regard them with doubt. In fact, while lawyers respect and admire many men who are expert witnesses, and while many such men are men of worth, still they know that the expert is like the lawyer: he takes the case of the side that employs him, and does the best he can. The expert is an every-day frequenter of the courts; he makes his living by testifying for contesting litigants. Of course scientific men do not need to be told that the receipt of or expectation of a fee is not conducive to arriving at scientific results. Every psychologist knows that, as a rule, men believe what they wish to believe and that the hope of reward is an excellent reason for wanting to believe. It is not my intention to belittle scientific knowledge or to criticise experts beyond such general statements as will apply to all men. I have often received the services of medical experts when valuable time was given without any financial reward, purely from a sense of justice. But all men are bound to be interested in arriving at the conclusion they wish to reach. Furthermore, the contending lawyers are willing to assist them in arriving at the conclusions that the lawyer wants.

It is almost inevitable that both sides will employ experts when they have the means. The poor defendant is hopelessly handicapped. He is, as a rule, unable to get a skillful lawyer or skillful experts. A doctor’s opinion on insanity is none too good, especially in a case where he is called only for a casual examination and has not had the chance for long study. The doctor for the prosecution may find that the subject can play cards and talk connectedly on most things, and as he is casually visiting him for a purpose, he can see no difference between him and other men. This may well be the case and still have little to do with insanity. Experts called for the defense cannot always be sure that the patient truthfully answers the questions. A doctor must make up his mind from examining the patient, except so far as hypothetical questions may be used. In all larger cities, certain doctors are regularly employed by the prosecution. While it would be too much to say that they always find the patient sane, it is safe to say that they nearly always do. Especially is this true in times of public clamor, which affects all human conduct. A court trial with an insanity defense often comes down largely to the relative impression of the testimony of the experts who flatly contradict each other, leaving with intelligent men a doubt as to whether either one really meant to tell the truth. The jury knows that they are paid for their opinions and regards them more or less as it regards the lawyers in the case. It listens to them but does not rely upon their opinions. Expert testimony is always unsatisfactory in a contested case. Under present methods, it can never be any different.

There is another danger: juries do not know the difference in the standing, character and attainments of doctors, so the tendency is always to find the man who will make the best appearance and testify the most positively for his side. This is unfair to the expert, unfair to science, and unfair to the case.

The method for overcoming this difficulty that has received most sanction from students is that experts shall be chosen by the state and appear for neither side. This, like most other things, has advantages and disadvantages. State officials, or those chosen by the state, usually come to regard themselves as a part of the machinery of justice and to stand with the prosecuting attorney for conviction. It will most likely be the same with state defenders. No one who really would defend could be elected or could be appointed, and it would work out in really having two prosecutors, one nominally representing the defense. A defendant should be left to get any lawyer or any expert he wishes. No one can be sure that the state expert will be better than the others. All one can say is that state experts may not be partisans, but, in effect, this would mean that they would not be partisans for the defendant. The constant association with the prosecutor, the officers of the jail, the public officials, and those charged with enforcing the law, would almost surely place them on the side of the state. Such men must be elected or appointed by some tribunal. This brings them to the attention of the public and makes them dependent on the public. The expert’s interest will then be the same as the interest of the prosecutor and the judge.

The prosecuting attorney is not a partisan. His office is judicial. He is not interested in convicting or paid for convicting, and yet, no sane person familiar with courts would think that the defendant could be safely left in his hands. Assuming he is honest, it makes little difference. Almost no prosecutor dares do anything the public does not demand. Neither, as a rule, has he training nor interest to study any subject but the law. The profounder and more important matters affecting life and conduct are a sealed book which he could not open if he would. Very soon under our political system the expert business would gravitate into the hands of politicians, the last group that should handle any scientific problem. I am free to confess the difficulties of the present system, but some other way may be even worse. It must always be remembered that this country is governed by public opinion, that public opinion is always crude, uninformed and heartless. In criminal cases there is no time to set it right. The position of the accused is hard enough at best. He is really presumed guilty before he starts. Every lawyer employed to any extent in criminal practice knows that in an important case his greatest danger is public opinion. He would not take the officers and attaches of the court as jurors, although they might be good men, for their interest and psychology would be always for conviction.

If defendants were not regarded as moral delinquents, if the examination implied no moral condemnation, if it was only a scientific investigation as to where to place him if he is anti-social, if public opinion supported this view, then experts should be appointed by the court. On this phase of the case there would be little need of experts. I would be willing to go further and say that then, too, the partisan lawyer, the hired advocate, should disappear. The machinery of justice would be all-sufficient to take care of the liberties of every man, to give him proper treatment in disease, to restore him to freedom when safe, and, when that time does come, the unseemly contest in courts will disappear, and justice, tempered with mercy, will have a chance.