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Full text of "Medical Jurisprudence And Toxicology"

RULES FOR GIVING EVIDENCE                                               17

When counsel quotes a passage from a text-book and asks the witness
whether he agrees with it, he should, before replying, take the book, note
the date,of its publication, read the paragraph and context, and then state"
whether he agrees or not; for, counsel usually reads only that portion which
is favourable to" his case, »and the meaning may be completely altered if the
whole passage is read/ In spite of this precaution he should stick to his
opinion if it is still his opinion, and if he finds that it differs from one
expressed in the book. To avoid being surprised by such quotations, how-
ever, it is advisable to study all the available literature on the subject before
giving evidence in court.

Volunteering of a Statement.—It is said that a witness is not supposed
to volunteer a statement in court, unless called upon to do so. This may be
true in the case of a lay j^tngss^jbut it cannot be so in the case of a medical
witness. Even though a medical witness is called by one side to give evidence
in court he must not forgetjhte duty towards the opposite^party, ol-honesty
and fair -deaffitg.^rHe must also""remember~thcrtrthe^ Judge regards him not
a& a medical advocate- put Tdfwafd7By>6ne~ side; to^establish the case .but as
an officer of justice, to help the court elicit tHe truth. It is, therefore, the
duty of a medical witness to state fairly all the medical facts bearing on the
case without any reservation. gejo.ce^my_advice to him is tojyplunteer state-
ments andjsuggest questions_to court, especially wEerf he finds that there is
danger of justice being Miscarried owing to the court Having failed to elicit
any important point. "Many years ago I had a talk with a Judge of the
Judicial Commissioner's Court (now Chief CourJ)- of Oudh about the
volunteering of statements by a medical witness in*court, and he agreed with
me that I should never hesitate in making such statements. Since then I
have, as a rule, followed this practice, which has been appreciated so much
by the Magistrates and especially lawyers that the latter very often put only
one question during cross-examination, viz. "Doctor, please tell us if there
is any point in favour of our client (accused) ". By following this practice
my evidence in a lower court becomes so complete that on a very rare occa-
sion I am summoned to a Court of Session.

Professional Secrets.—Under section 126 of the Indian Evidence Act
(vide Appendix II), a lawyer can claim privilege and will not at any time
be permitted to disclose in court any communications made to him in the
course and for the purpose of his employment as such by his client except
with his express consent, but a medical witness cannot claim such privilege
as regards professional secrets obtained by him or communicated to him by
his patient in the course of examination and treatment. Nevertheless, he
should, on no account, volunteer these secrets, but should divulge them
under protest to show his sense of moral duty, when pressed by the court
to do so. Non-compliance with the order of the court may render -him liable
for contempt of court. In certain American and Continental courts medical
mea, like priests in the confessional, are privileged not to divulge communi-
cations which have been made to them in their professional character by
any of their patients.

It should be borne in mind that under the English law a medical witness,
like any other witness in court, is absolutely privileged, and no action lies
against him in respect of his statement in the witness-box.15 He is also not
compelled to answer questions which have a tendency to expose him (or ifae^
wife or husband of the witness) to any criminal charge, for no one is IxaiEnsd
to criminate himself and to place himself to peril. Under section 132 of ifie
Indian Evidence Act a witness is not excused from answering an# qpes&p
upon the ground that the answer to such question will criminate,, ec n

15.   DawHns v. Rockeby, LJL 7 HX. 744, etc.; Sarkar, The L&w of
Ed. IV, p. 879.
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