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CHAPTER 3 THE MEDICO-LEGAL ASPECTS: FROM MEDICINE TO POLICE METHODS PDF Print E-mail
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Books - Police Drugs
Written by Jean Rolin   

THE medico-legal problems connected with narcosis now have to be considered, and that with the greatest care and exactitude. I myself believe in the need for absolute and unequivocal opposition to it. Yet this opposition, to be effective, must be accurately aimed or it will miss the mark altogether. It is a complex, if not a subtle, question, but in that complexity the force of my protest must not be allowed to become obscured. It would be useless to raise at once a loud outcry about police tortures, we must first tackle the matter on the very grounds, and in the same terms as the partisans of pentothal. The discussion of these will need serious attention. I apologize, but anything glib and superficial would be both vain and risky.

I. DIAGNOSIS OR EXTORTION?
 
The most spectacular effect of pentothal, and that which has been most disingenuously placed before the public, is the inhibition of voluntary control of the mind. It can thus, we are told, show up a malingerer in that if a person refuses to speak, or denies things, or pretends not to remember, pentothal narcosis makes him confess the motives which prompt this negative attitude. By removing conscious resistance to interrogation, pentothal offers the police the temptation of using it as an easy method of bringing about a confession.
 
By presenting things in this light it has been possible to impress on the public the current expression 'truth serum', implying that pentothal makes the liar tell the truth. A formula at once simple, untrue, redolent of 'Americanism', and one which quite distorts the whole matter.
It is nonsense anyway: pentothal is not a serum, and, as to truth, it is a word rashly applied, since, as we have seen, whatever comes out of such interrogation under narcosis has little in common with factual reality. The subject is sometimes refractory and continues to watch his words, at other times he is over-suggestible, when it becomes necessary to interpret what he says with the greatest caution. The truth is not spoken openly, hence there is great risk of it being more than necessarily obscured.
 
If then it should have happened that certain police forces have used pentothal as a means of extracting confessions, French physicians and jurists have, on the contrary, resolutely refused to allow the question to be considered only on that level. They will not use pentothal as a truth serum because they do not mean to act as inquisitors or executioners, and they have no illusions as to the veracity likely to be found in a confession under narcosis. That is doubtless why one of the experts mixed up in the Cens case said several times, 'The truth serum is humbug. It does not exist,' thus suggesting that no practitioner has ever believed in it, nor expected pentothal to be used as a means of causing confessions to be made, nor that the accuracy of such a confession should be taken for granted.
 
The problem of pentothal as it stands to-day is therefore not that of its use in police interrogation, it is that of its use in forming expert medico-legal opinion. It is then an extension of straight psychiatry, though obviously not as a matter of treatment, but as one of diagnosis. The medical expert is charged with informing the judge as to how far the accused is responsible for his acts. This is his only duty, and, far from using pentothal narcosis to obtain a confession, he may use it only to assess how much the pathological elements in the subject's mind relieve him of responsibility, and how much control he could have exercised over what he did.
 
It is in these terms that the matter was brought before the Medico-legal Society (of France) in a communication from Professor Delay. 1
 
In the cases of two accused people, detained because of mental trouble, pentothal was tried experimentally and with therapeutic intention, not for forensic purposes. In the first, an aggressive attitude towards the victim of the crime was exposed. This had hitherto been concealed. In the second case it showed a form of deception which was not entirely deliberate, as it overlay and was dependent on a genuine mental disease-condition. The narcosis thus brought to light both a quasi-voluntary amnesia and the beginning of disintegration of the personality.
 
The interest of these experiments lay in that it made it appear as if pentothal were able to furnish the data required for medico-legal diagnosis and determining the relative responsibility of the person accused of a particular crime. Let me add that the test, far from being pushed on towards attempting to obtain positive admission, showed, on the contrary, the limits of its effectiveness on this point, as both the subjects remained on the defensive. The first, when asked, 'Who did the killing ?' answered, 'There are some things one cannot tell.' The other said, 'I can remember when it suits me. When it does not, my memory fails me.' It thus became simply a matter of diagnosis, not of extortion. The authors of the paper explicitly stated that the method used, capable as it was of 'determining the pathological mental condition and what voluntary factors were super-added . . . cannot pretend to assess the value of confession to a breach of law: which, anyway, would be contrary to the principles of justice actually in force.' The problem was thus very exactly stated to the Society.
 
This body then appointed a commission charged with framing a resolution. After discussion in which there was much discord, hesitation and vacillation, the commission proposed the following:
 
The Medico-legal Society (of France) resolves, that the use of methods of investigating the unconsciousness such as pharmaco-dynamic explorations under pentothal should, in principle, be approved in medico-legal expert assessments as a purely medical matter and as a means of diagnosis. But the medical expert cannot feel confident that the revelations obtained under the influence of the drug on the actual facts of the case are exact. In this way the determination of criminal responsibility shall never be made on this test alone, the interpretation of which demands a critical analysis on the part of the medical expert. In any case, it is recommended that the method should only be used after the failure of all ordinary methods of investigation.1
 
This shows that the approval given to narco-analysis in legal cases is qualified by many reservations: i.e. it may be used as a means of diagnosis, but not to obtain a confession, and if a revelation of guilt is received, it is subject to the seal of medical secrecy. Moreover it can only be used after the failure of other means.
 
This amounts to saying that pentothal should be used in law only as a means of expert medical assessment, not as a means of forcing an avowal of guilt.
 
This resolution, despite its many reservations, was not accepted by the Society. Even before it had been discussed, a formal yet vigorous objection was raised by the Association of those physicians who had been deported or interned for political reasons during the Resistance. At its meeting of 8 December 1945, this association charged two of its members, Professors Charles Richet and Henri Desoille (the latter himself an official of the Medico-legal Society), to draw up a statement of which the following extracts give the salient points. 2
 
Those making the protest began by pointing out the risk of a misuse of the procedure of narco-analysis and the abuses which might result from this.
 
We protest with all our strength against this resolution. We protest in the name of our comrades who fought for the respect of individual freedom and who underwent interrogation by methods they found objectionable. To pass such a resolution opens up a path dangerous from every point of view. It is not permissible to use chemical methods to deprive an accused person of his free will—that is, of one whom French law presumes to be innocent (until proved otherwise). . . . We cannot agree to it also because we are afraid that this violation of mental integrity may lead in the future to abuses. At any time the method might be used as a convenience and the restrictions on its application be forgotten. Interrogation by this means may become a part of police procedure. One might, for instance, use it to obtain an avowal of political views. We know only too well the abuses which come when coercive methods are used in interrogation, to agree that the honourable principles of French law should be changed in this way.
 
The protest goes on to point out that medical secrecy as to any information obtained by expert witnesses could not properly be observed:
 
The expert witness would have to delete from his report both the symptoms observed and any discussion of their meaning. He would have simply to express his own opinion. The resolution proposed is inadmissible, for an expert's report must be complete and sincere, since both the defence and the prosecution have the right to argue about the conclusions reached by him. They can only do this if the observations leading to that conclusion are an integral part of the report submitted.
 
A third paragraph insists on the distinction which must be made between the legitimate use of pentothal in psychiatry and its improper use in forensic matters:
 
These new methods . . . must only be used therapeutically. When, after far-reaching changes, our penal system comes to consider some offenders, not as guilty people needing punishment, but as sick people needing care, then only will it be right to use pharmaco-dynamic methods to explore the unconscious. The diagnosis will then be the first step in therapy and will have only medical repercussions. In the proposition before us this is not so, for if the first aim of diagnosis is to decide whether or not punishment should be meted out, it may have repressive results.
 
The Annals of the Medico-legal Society apparently show that it dropped the matter. It had no further public discussion of the question and in this way tacitly refused to proceed with the resolution.
 
True, it may not always be wise to draw conclusions from silence, but in this case there is reason for doing so? I do not, of course, suggest that the matter is as finally disposed of as if a clearly negative formula had been accepted. But it is plain that the present attitude of the Society is something more than a mere abstention from expressing an opinion, one which might be taken as giving consent to the method. Silence coming after a proposition agreeing to its use, countered by formal opposition, implies something much stronger and more positive. It would be wrong to believe that the Medico-legal Society, under whatever reservations, would tolerate the use of pentothal in criminology. It has, at the very least, refused to authorize it, and in the light of the terms of the protest which stopped the proceedings we have the right to believe that it has actually and quite definitely condemned it, in view of present conditions. One must thus hold the opinion that any medico-legal expert assessment performed under pentothal contravenes not only the usages and customs of judicial procedure in France, but also the feeling of the body of medico-legal opinion in general ; and that, even if it were to be carried out within the framework of the rejected resolution. It would be untrue to say that pentothal tests, even if medical secrecy is respected, are in line with the position adopted by the Medico-legal Society. What is true is that this body refused to adopt a proposition which authorized the use of pentothal at all, under any such circumstances, and no expert can claim to be working with its permission.'
 
It is nevertheless obvious that the question is not settled. Polemics still go on, opinion is split, and the Cens case has not made matters easier. The problem in any case is intricate. If it was a matter of choosing between extortion of confession on the one hand and respect for free will on the other, the debate would be closed, for among jurists or physicians there are none who agree to the rape of a person's conscience. The point at issue is the legitimacy even of a diagnosis made under narcosis.
 
Has the Richet-Desoille protest failed to go to the heart of the matter, since its primary objection is to the use of pentothal in interrogation? This procedure was, it may be said, already rejected by medico-legal experts, and if so, the act of laying the matter before the Medico-legal Society leaves things where they were and no conclusions can be drawn from it.
 
I think otherwise. The very terms of the protest give us grounds for continuing the debate because they show that there is no clear distinction between extortion and diagnosis, and that inevitable deterioration would allow the medical method to degenerate into something like a police procedure.
 
2. THE PROCESS OF DETERIORATION
 
If we consider the first paragraph of the protest, it does indeed reach the core of the matter despite the fact that it does so indirectly. It is important that we should see what is the basic purpose which inspired it.
 
It is that in this kind of affair it is less vital to consider the actual procedure, and more so to see the abuses which it may lead to, to condemn it in principle because one anticipates the harm which may result from it. Maybe my opinion is due to blind obstinacy, but I propose to cling to it and I can support myself by quoting many other examples where delicate procedures have been used only under the greatest safeguards, yet where there has been the risk of these safeguards being abrogated when convenient.
 
We live in a barbarous age, a time when people are apt to overlook subtleties and the strict limits to action which such subtleties demand. Moreover, there is a weakening of the respect man should have for man, and scientific techniques are used in order to degrade others. There is a slippery slope between forensic medicine and police torture, and it becomes essential to check the descent. When one is menaced by barbarians, one does not throw open the _gates of the city.
 
Whether one likes it or not, there lies the problem. There is no purpose in theorizing on the value or morality of the principle underlying medico-legal use of narcosis, and nobody will doubt the theoretical difference between a medical diagnosis and a forced confession. But there are subtleties which are likely to disappear when it comes to practical matters. That is the essence of it all: it is deeds which count, and one must constantly hold before the partisans of the use in law of narco-analysis the question, `What will grow out of the method once it becomes current usage? Will not policemen soon allow themselves to misuse it to extract admissions ? And are you so sure both of your technique and of yourselves that you can guarantee that the exact mark between medicine and police practice will never be crossed? We do not doubt your good intentions and we know that you have said that this method should never be used by the police, that it can never become part of police procedure.' These statements promise nothing but your own good will, your own belief—which may be naïve or perhaps arrogant—in the security provided by your privileged position. You set a good example, but others, less scrupulous, may not follow it. When people who are policemen at heart, but who have obtained a few diplomas, use your precedent as authority, who will then be able to attack as illegal their use of this kind of medicine?'
 
That is the crux of the matter, and the Richet-Desoille resolution was not mistaken. It is not they, but those who persist in discussing and justifying the use of pentothal on theoretical grounds, who are evading the real issue.
 
Can it be said that all these fears are of things which may never happen and are irrelevant? If so, we must pass on to the second point of the protest to show that the restrictions and precautions advocated for the use of pentothal are already proved ineffective, for it is in the very nature and action of the method that the danger lies.
 
It seems from the somewhat involved terms of the proposition laid before the Medico-legal Society that reliance should not be placed on the factual aspect of any confession. Moreover, no analysis of these should be made in Court to justify the expert's conclusions, so as not to weight the evidence in either direction. Those who protested against the original proposition wonder that it has not been realized that a report in these restricted times is useless, since both prosecution and defence have the right to discuss it. Such a report, they say, must be both honest and complete. If so, how can professional secrecy as to confessions be kept? The medical expert, assuming he obtains a confession at all, is on the horns of a dilemma: is he to give a full report, when he may be guilty of having forced an admission of guilt, or is he to make it only partial and so valueless ?
 
This matter was discussed at length at the International Academy of Forensic and Social Medicine.' The report of this carries all the more weight from being subtly and scrupulously fair as well as because it was drawn up by a practitioner entirely in favour of narco-analysis.
True, the expert witness does not have to report every detail and can omit material irrelevant to the mental condition of the subject. For instance, suppose, in a matter unconcerned with his wife, a man confesses to unfaithfulness: this has nothing to do with the question of responsibility for a criminal act.
 
The report says that 'one may receive confessions which may be interesting in shedding light on our religion, but which are not essential to the establishment of a medico-legal diagnosis'. But the expert is not a recording machine, his job is to discriminate and analyse. His conclusions are not articles of faith either to prosecution or defence, and the Court has both the need and the right to know how the subject has 'shed light on' the said 'religion'.
 
There is a third kind of confession, that having strict bearing on the crime with which the accused is charged. Here those making the report distinguish two cases, Most of the time, they say, the admissions obtained tend to diminish the degree of responsibility, at any rate in the eyes of professional justices expert in interpreting the evidence—but, unfortunately, not in those of a lay' and often incompetent jury, which may moreover be prejudiced, and may make its decision only on the superficial appearances of the confession.
 
In the second case, where the confession may have bad repercussions on the accused, the medical expert cannot fail to see the incompatibility of the purely medical aspects of his case with the requirements of a fair defence. For the confession has not been obtained spontaneously, and it may truly be held that it was made under duress and should not be heard in evidence unless freely repeated by the accused, in full consciousness and under normal conditions. The expert witness may thus find himself trapped in a highly unpleasant position.
 
Against this, it is useless to say that narcosis practically never causes confessions. We shall see later that this is untrue, for the trust which is evoked by the very fact of the questioner being a physician may lead to his receiving admissions. But they are confessions of quite another nature than those of actual criminal guilt, a point we shall refer to later.
 
The very nature of the process of narco-analysis and the conditions defining its use are thus likely to take the expert into an untenable and ambiguous position, where medicine and police methods are inextricably confused. What then is left of the theoretical distinction between diagnosis and extortion? It is lost even in the most cautious use of the method, let alone when it is used improperly.
 
This may indeed be thought to be a purely technical matter. But it is much more than this because it is redoubled by moral and ethical consideration. Narco-analysis is a specialized method of mental investigation depending on the surrender of the individual. And to use it under conditions where this surrender—which is almost impossible under normal conditions and at the will of the patient—is obtained by force or by cunning becomes, however well intentioned the operator, morally unjustified.
 
All psychiatric technique, whether for diagnosis or cure, rests on trust between physician and patient. This belongs in essence to every medical situation, as without it this situation loses its truly human character. It is particularly important in psychological medicine, where the very soul of the patient has to be exposed and opened up to view. Whatever faults Freudian psycho-analysis may have, it is entirely right in emphasizing that the psychiatrist must assume and deserve the role of confidant. It would be wrong to think that any technique involving the use of drugs absolves him from this, and in narco-analysis the surrender of the subject which follows the use of the drug should be freely agreed to before the drug is used to bring it about, as well as freely given afterwards, as the cure goes on. This is an essential guarantee of the 'humanity' of the method as well as its possible medical efficacy. It is only fair here to draw attention to the scrupulous care with which some practitioners of narco-analysis try first of all to create this relationship of confidence. Even in this instance, morality comes first, technique after. 1
 
The relationship between medico-legal expert and accused are almost the exact opposite of those between patient and doctor. No doubt many experts do not see the situation as a duel, but place themselves also in the position of helper and protector. Yet even if the two are not antagonists, there must necessarily be suspicion on both sides: the first suspects the other of trying to evade him and wants to tear down his mask, the second fears that the first is not his well-wisher and so prepares to defend himself. What can be the outcome?
 
Let us however suppose, if only to cover the,, whole ground, that trust has been given, and that the accused, freely and without constraint, agrees to surrender himself to the doctor. There is no fault to find with this, except that it is to the expert's credit. But he is then entrusted also with the task of reconciling in his professional conscience the conflict between the medical and the forensic aspects of his duty. Conscience should here be paramount, since confidence has been given simply on the plane of ethics and not because a particular technique is being used.
 
If on the other hand confidence in the doctor has arisen only under or after the actual narcosis, the medical expert's situation is quite different, and he should refuse to accept it in the way he may if it is freely given. 'Why,' says one writer, 2 'should one not use pentothal for fear of receiving admissions of guilt, since one also gets them without it?' There is clearly no moral or judicial analogy between confessions obtained by these means and those obtained by freely given trust. Narco-analysis brings on only an enforced confidence: two words which are incompatible. This applies even if the subject has agreed to the use of pentothal, for it does not follow that he realizes, or clearly appreciates, the possible effects of the injection, that it may lead either immediately or as an aftermath to his losing his power to keep silent or to speak only of certain things and not of others.
 
What then is the situation of the expert? If the material he lays bare helps him to find extenuating factors and to diminish the guilt and criminal responsibility, all is well, not only for the accused but also for the doctor, who has acted in the proper role of a physician rather than a prosecuting counsel. And even if the prison system refuses as yet to accept his contention, he will at least have declared that the prisoner is a patient in need of therapy rather than a wicked person needing punishment. The relationship of trust is thus preserved and sanctified a posteriori and by its aftereffects even if it was not so a priori, by the intentions of the doctor to heal rather than help to punish.
 
On the other hand if the confessions made under narcosis force him to state that the prisoner is indeed responsible for his actions, the expert is to be pitied for the equivocal situation in which he has landed himself. If he feels the full weight of responsibility with which this enforced confession loads him, how can he escape from the sense that he must preserve medical secrecy? It is indeed a paradoxical situation for an expert witness to feel constrained to suppress part of his evidence! But if he rejects the moral bond, there is no situation in which he is more blatantly and flagrantly guilty of breach of confidence—a double breach since it was first obtained without free consent, and then because it is used to bring about punishment. This is not merely a technical difficulty, it is a straight matter of morals.
 
Professors 011ivier and Cornil have made a suggestion which, despite its prudence and reservations, seems to me inadmissible for similar reasons. They say that one might justifiably suggest narcosis to the accused: if he accepts, it is an indication of his innocence, if not, it would presume his conscious responsibility for his acts. 1 But, even assuming the highly doubtful proposition that pentothal will, indeed, make innocence evident, the advocates of medico-legal narco-analysis are still among a tangle of contradictions. For it is obviously illogical to offer a suspect the right to refuse if, by using that right, he adds to the belief in his guilt.
 
The duress is less obvious and more insidious: it becomes a form of blackmail. But if he accepts, then why give the injection? It is obviously useless and morally unjustified since this very acceptance means a giving of medical confidence which should gag the physician. At the same time, if the doctor does not give it after it has been agreed to, he is guilty of having played a trick on the victim. One is then really more deeply embedded in the tangle around the very police methods one has tried to avoid.
 
To preserve the dignity of the medical profession, and for the medico-legal expert not to degenerate into a police auxiliary, it is necessary to adhere strictly to the limits drawn in the Richet-Desoille protest: that is, the use of pentothal only as a medical technique, not as a judicial method. Never must the demarcation between its use as a diagnostic and therapeutic measure and its use as a means of crime detection be allowed to become obscured.
 
There is still worse to come. We have already seen that every reservation, restriction and precaution which can be placed round the use of pentothal, and the very distinction between diagnosis and a forced confession vanish when it is used for medico-legal purposes.
 
Let us remember that it was proposed to the Medico-legal Society that pentothal should be employed only for strictly medical purposes. This in itself is ambiguous, since the only purely medical act is that done for therapeutic aims. In expert medico-legal assessment this is not so. We may allow that the intention of those framing the resolution was to differentiate between diagnosis and extortion. Yet even this is disregarded when one expert says that narcosis `should be applied without restriction wherever there is even the slightest suspicion of deceit or malingering'.1 And, more explicitly,
 
it is not essential that the terms of reference of the doctor should formerly charge him to unmask deception: the duty of every psychiatric expert making a deep mental investigation ipso facto implies the unmasking of deceit. It is evident to us that if the accused has the right to lie and to prevaricate, the examining psychiatrist has not only the right but the duty to make certain that he is lying, and to prove that he is pretending.2
 
This clearly advocates the use of pentothal in an entirely non-medical role, and simply as a 'lie-detector'. I shall exemplify this shortly with an example where a traitor to his country pretended to be insane. Every means was used to unmask him; 3 cardiazol convulsions, repeated narcoanalysis, and even pervitine given under false pretences, with an untrue statement as to the effects of the drug. The victim held his ground, yet the expert's report resulted in a sentence to death. Granted we were dealing with a real deceiver. But can this merciless battle, this pursuit to the death, possibly be called a medical act? Here already is a precedent to any future abuses which arise in the attempt to outwit the deceiver.
 
The resolution had a second clause, by which the expert was told that he must not rely on the things disclosed being factually true. This too goes by the board when, though the details of a confession are passed over admissions in general terms are allowed even if obtained as a result of such a hunt after deception. This too is clearly agreed to by another expert, r who writes :
 
The day may come when physicians will be called in by the police or the prosecuting officers to apply narcoanalysis for the purpose of obtaining confessions from all accused people.
 
I do not believe this. I believe rather that the police themselves will operate—perhaps with the connivance of some renegade practitioners, while one hopes that the judiciary itself will never stoop so low. This quotation suggests neither more nor less than the revival of the role of inquisitor from of old. And despite the fact that the writer recommends that this operation shall be entrusted only to physicians who are 'competent, conscientious and who are deeply versed in the method and aware of its fallibility', it is easy to see how lightly these precautions would weigh when once the fundamental principle is accepted, that pentothal is a proper drug to use in police interrogation.
 
The third reservation is equally void. It was recommended that the method should be used only after ordinary procedure has failed. Where is the precise limit, and by what objective standard can this failure be measured? In the Cens case, the line was crossed at once—and this was a case where classical methods had already given a clear and conclusive diagnosis.
 
In short, nothing remains of all the attempts of some experts to maintain a distinction between diagnosis and extortion, such distinction being effaced by the experts themselves.
 
Yet a further threat is added to our uncertainties as to the kind of use which might be made of pentothal. That is the tendency of some who wish to use it in all and every case.
 
Some, it is true, want to keep it only for exceptional instances. But one legal expert, Professor Lebret,1 thinks that it is easy to work on the basis of a direct opposition between the strictly medical use of narcosis and its use in criminal investigation. The problems arise in many cases midway between the medical and the corrective level, for instance where preventive detention is in question—i.e. not exactly punishment, yet detention coming within the framework of the law rather than of strait medicine. These present themselves in three layers going from the more medical to the more punitive:
 
(1) In deciding to continue or to finish the detention of a patient in a mental hospital. (2) In attempting to re-educate minor delinquents. (3) Whether or not to keep accused people in custody when their mental state is in doubt. After this we come to purely punitive measures, these in turn being at two levels; (4) in matters of probationary liberation and (5) for examination prior to any decision as to detention.
 
This is an excellent classification, provided that the multiplication of intermediate steps should not in effect abolish these steps and lead to the use of pentothal in all stages on the excuse that the movement from one stage to the next is imperceptible and cannot be defined. The argument is, briefly, that if narcosis is useful in making apparently pure medical decisions, yet such as lead to deprivation of freedom, why refuse to allow its use in more directly punitive cases? The slide-over is particularly easy in the reasons given for passing from 4 to 5.
 
For one may easily agree with periodical medical examinations of cases to be released on ticket-of-leave, and admit that narcosis is legitimate and harmless because it is negative and may set a person free or that, at worst, it may advise continuation of a detention already in existence. But if one may use narcosis in order to get a person free from prison, there seems little reason for not using it also to put him into gaol .
 
I do not think that Professor Lebret could have done better than argue this way, had he intended to show the dangers ensuing from the use of pentothal in criminal law.
 
In any case, Professor Lebret's plea rests on the supposition that the prison system is already capable of dealing with cases from a therapeutic as well as from a penitential angle. This is open to doubt. In advocating the use of pentothal both in endeavouring to liberate and to imprison, he is working on a hypothesis of the indeterminacy of such imprisonment. 'The judicial procedure (by which the term of imprisonment is set) is not a much more serious matter than the decision made some years later as to the ending or continuation of such imprisonment.' This might clearly lead to serious abuses, and, as the author himself recognizes, penology has not yet reached the point required, and to introduce pentothal in the present state of things is indeed to put the cart before the horse.
 
Professor Lebret realizes the delicacy of his position and uses all his subtlety and knowledge to show the legitimacy of the use of narcosis. For if it is to be used as a means of cross-examination it should take place in the presence of both judge and counsel. This is out of the question, of course. The physician would object, even if the others should be willing to be present. Yet, he argues, there are exceptional cases in which counsel for the defence may be absent during an examination, and it might be in such cases that narcosis should be introduced. The argument goes on to show that both technically and legally 'this would not be a formal interrogation', only 'a particularly subtle investigation of the mind' of the accused. Which is merely sticking a different label on the same thing. The dangers are obvious.
 
Yet another writer 1 suggests a general use of narcosis in order to show up malingering, particularly (1) among soldiers who try and escape from their patriotic duties, especially in time of war, and (2) in the realm of pensions and social insurance, where, to avoid exploitation of the State or of private insurance companies, the expert has, it is suggested, the right to use harmless but efficient procedures to bring the truth into evidence.
 
Clearly, the advocates of pentothal mean to see that civic virtue, the safety of the Motherland and the interest of the State will be most vigilantly secured. The next thing will be that somebody will propose the use of narcosis to combat tax evasion!
 
There is even an element of comedy in some of the pleas brought forward. We have already mentioned a German physician who proposed to hypnotize witnesses. The idea of the resulting perfect witness thus handled by the experts, made honest by technical means, has always haunted the dreams of some. We have a passing but interesting sign of this in the report of the committee of the Medico-legal Society. 2 One of its members drew attention to the fact of the capital importance of expert assessment of witnesses. (In practice, of course, it would simply mean that witnesses would flee whenever possible, and refuse to come forward unless made to.) But, pentothal being the main subject under consideration, another member, misapprehending the line of thought of his colleague, hastened to say that witnesses must be spared narcosis. We seem to have had a narrow escape! But clearly, the idea is in the minds of people, and who can say where we shall stop ? Perhaps somebody will one day suggest that both counsels, and even the judge himself, should be dosed with pentothal before the trial. And, as a final step, it might even happen that somebody will advocate that the whole trial take place in the light of truth revealed when all parties are, at the time itself, under the influence of the drug!
 
To sum up: the partisans of pentothal flatter themselves that they can keep the use of pentothal in law strictly to matters of diagnosis. I think, on the contrary, that it is inevitable that the medical procedure must become prostituted when it is used in police cases. Man is still too much of a barbarian to be trusted with it. Further, the 'truths' revealed are of a dubious character. The expert who uses pentothal in legal cases finds himself caught in a moral dilemma. And the declaration of its advocates and the practices of some, speak for themselves.
 
It is on account of the certain moral deterioration which must take place, which, indeed, is already taking place, that we find the basic reason for prohibiting altogether the use of pentothal in legal procedure.
 
1. Delay, etc.: Inter* Medico-legal de la narco-analyse (Annales de med. legate, No. 4, April-May-June 1945, p. 55, pub. Bailliere).
1. Annales de med. legale, No. 6, Nov. -Dec. 1945, pp. 178 et seq.
2. Richet and Desoille: A propos du proces-verbal (Annales de med. legale. Jan.-Feb. 1946, p. 27).
I. Which is quite the opposite of what was stated in Le Monde (25 Dec. 1947), and in an article by Dr. J. Declos, Narco-analyse (Sciences et avenir, Feb. 1948).
1. Divry and Bobon (Acta med. leg. et soc., p. 644), 011ivier, ibid., p. 642. Delay, loc. cit. (Figaro, 12 Nov. 1948).
1. At an International Congress held in Liege in 1947. The report, by Divry and Bobon (Acta med. leg. et. soc., Brussels, April 1948, pp. 601-655), has already been quoted,
1. Cornil and 011ivier, op. cit., pp. 16, 40.
2. Trillot: Utilite de la narco-analyse en med. legate (Acta med. leg. et soc., p. 01).
1. Problernes de selection et d'actualites medico-sociales, loc. cit., pp. 150-151.
The same idea is suggested by others, such as Trillot, in La narcose barbiturique en medecine Wale (Annales de med. leg., July—Aug. 1949, p. 170). It is only fair to add that Prof. Cornil has, much to his credit, revised his views on the matter.
1. Divry and Bobon, op. cit., p. 630.
2. Divry and Bobon, op. cit., p. 627.
3. Divry and Bobon, op. cit., p. 636. 'Everything is good which can bring out the truth,' says another expert. 'The expert has the duty to use any means in his power,' says another.
1. Trillot, op. cit., p. 653.
1. J. Lebret, professor of Law at Aix, Sur la liceite du recours a la narco-analyse. (Report made to the Congress on social and legal medicine, Lausanne, 1948, and published in Annales de med. legale, March-April 1949, p. 58.) I refer also to a letter in which Professor Lebret told me of this report before it was published. I want to express my thanks to him, despite the strong opposition I feel to his ideas.
1. Trillot: La narcose barbiturique en medecine legale. Communication made to the Congress of Legal Medicine, Lausanne, 1948 (Annales de med. leg., July-Aug. 1949, pp. 168-170).
2. Annales de med. leg., No. 6, Nov.-Dec. 1945.
 

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