Elisa M. Becker

Judicial Reform and the Role of Medical Expertise in Late Imperial Russian Courts

In both the United States and Western Europe in the mid-nineteenth century, forensic physicians engaged in bitter jurisdictional disputes with members of well-established legal professions, within the context of long-standing judicial institutions. ¹ In Russia, by contrast, the emergent medical and legal professions—both critical of the autocracy and state institutions in which they worked—joined forces in their attempts to fundamentally transform the autocratic system and its judicial institutions, based on claims of technical and professional expertise. As such, the development of forensic-medical expertise took a path that differed from the Western model. In Russia, forensic physicians reacted to and influenced the evolution of bureaucratic state structures. Consequently, medical professionals sought to increase—rather than minimize—their role within the state's legal system in order to transform an otherwise arbitrary judicial process along the lines of "scientific rationality" and "objectivity."
1

      Though century-old forensic-medical legislation continued to regulate and define forensic-medical duties under the tsarist regime until its collapse in 1917, the Judicial Reform of 1864 radically transformed the procedural and institutional setting in which physicians conducted their forensic responsibilities. ² Following the liberation of the serfs in 1861, progressive bureaucrats within state officialdom further reorganized the social and political balance in late imperial Russia by introducing a judicial system based on Western institutions and ideals. ³ Historians of Russian law have begun to examine the persistence of Russian legal traditions and elements of the prereform system across the divide known as the Great Reforms and the ways in which these traditions shaped the functioning of the reformed courts. ⁴ They have focused on the "mixed" nature of the postreform judicial process, as well as the institutional complexity of competing legal jurisdictions and the coexistence of different legal cultures. ⁵ Notwithstanding the hodgepodge quality of Russia's judicial landscape, the reformers' reconstitution of the nation's legal system was thoroughgoing, if not entirely radical, and encompassed procedural, adjudicative, and appellate processes. ⁶ Among the most dramatic innovations were the institution of an independent judiciary, trial by jury, justices of the peace, and the principles of equality before the law and due process. The sum of these parts represented a significant incursion into the absolute basis of autocratic rule.
2

      The 1864 reform produced a judicial system that was bound to challenge the unrestricted authority of the tsar. And the role of professional expertise in the new judicial process was essential to this challenge. The rhetorical and ideological goal of science—"the objective quest for truth," familiar to the educated Russian public by the 1860s—coincided neatly with the goals of the reformed judicial procedure. It also overlapped with the practical aims of self-proclaimed modernizers (within and outside government) who attempted to systematize criminal procedure to ensure due process while minimizing arbitrary intrusions by the state. Historians of science have argued that the ideology of scientific objectivity offered Russian physicians the opportunity to engage in civic activism without becoming embroiled in the political fray. ⁷ Thus they have demonstrated that the Russian medical profession encompassed a spectrum of political viewpoints. However, the purported neutrality of scientific ideas and methods, and, by extension, the forms of civic intervention such technical expertise could entail, also provided a way for medical practitioners to legitimize their social and political activism. Wielding the social authority of science within the reformed legal structure, forensic-medical expertise represented a double threat to an autocracy that was traditionally jealous of both its monopoly on state-administered tutelage and the intrinsic power of the law.
3

      Of the several innovations of the reform, the introduction of trial by jury had the most direct implications for the changing status of medical expertise. ⁸ For the first time in Russia's history, a jury of laymen were to decide verdicts according to their "inner conviction" rather than the rigid and formalistic rules of evidence that operated under the prereform inquisitorial procedure. ⁹ The implications for the status of the medical expert were provocative and two-fold. First, the authority that the public accorded medical knowledge and the medical expert was, at least potentially, the decisive factor in the outcome of trials. Hence, forensic medicine constituted a competing source of authority in its immediate role as a safeguard of individual rights and due process. More broadly it could act as an overseer of social order, the traditional purview of the absolute state. Second, the significance of medical expertise became, in the opinion of the medical and legal communities, even less clearly defined than before. The combination of these factors led to a veritable storm of debate beginning in the 1860s.
4

      The arguments over medical expertise were not restricted to its practitioners. Discussion appeared in both the medical and legal press immediately after the 1864 judicial reforms; in the following years, physicians and jurists debated this question at a variety of professional meetings. The expert's legal role was on the agenda of the forensic-medical section of all twelve congresses of Russia's national medical association, the Pirogov Society. From its founding in 1885, this society organized the physicians' campaign for professional autonomy and spearheaded major efforts for social and political reform, culminating in its oppositional political activity during 1905. ¹⁰ Overlapping with these meetings, and sharing participants, joint commissions of legal and medical societies in Moscow and St. Petersburg formed to discuss the legal status of medical experts and projects for reform. ¹¹
5

      Further judicial modernization, propelled by the same progressive, educated strata of society responsible for the institutional changes of 1864, entailed a period of intense scrutiny of the concepts of crime and punishment. ¹² In the decades following the judicial reform, contemporaries increasingly perceived the procedural status and implementation of medical expertise as integral to the criminal process. The multiple sites of discussion over forensic-medical questions were characteristic of public debate over law in this period. As William G. Wagner has described in relation to his study of marriage law, the professional and the intragovernmental debates were linked not merely through common political orientation and programs of reform but also through specific individuals. ¹³ Over the years, joint professional meetings devoted to the question of medical expertise engaged leading figures in medicine and the law who occupied high-ranking posts in the central bureaucracy, including some of the nation's foremost legal scholars, such as statesman and Chief Prosecutor of the Senate A. F. Koni, as well as members of the governmental committee responsible for the revision of the criminal code, I. Ia. Foinitskii, V. K. Sluchevskii, and N. S. Tagantsev. ¹⁴
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      Russian physicians and jurists shared a professional interest in forensic-medical expertise with their counterparts in the West. In Germany, England, France, and the United States the procedural status of medical expertise, and psychiatric expertise in particular, became the object of professional conflict and cultural concern by the fin de siècle. ¹⁵ But the Russian debates differed in the particular way in which medical and legal issues, stemming from the judicial reform and its transformation of the procedural context, followed the contours of the social and political landscape under the autocracy. Debates over the physician's legal role, which often focused word-by-word on the letter of the law, were more than mere niggling. The question of medical expertise provided an opportunity for professionals to express not only their vision of their professional mission in the new judicial order but to speculate about the construction of legality, the authority of scientific knowledge, and the relationship between trained specialists and the state. The development of forensic medicine illustrates, but at the same time complicates, what historian Daniel T. Orlovsky describes as the "curious type of Russian 'free profession'" that emerged within the state service hierarchy and developed a sense of professionalism even while working within the state apparat. ¹⁶ The judicial innovations of 1864 put the medical practitioners in an inherently contradictory position vis-à-vis the state: while physicians increasingly attempted to distance themselves from state-defined police-administrative functions in their quest for professional and civic autonomy, they simultaneously sought to augment their forensic duties in the state's legal system, in and through which they could enact further reform.
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      In this article, I argue that the 1864 judicial reforms introduced a series of contradictions into the medical expert's role, which in turn served as a springboard for the medical profession's efforts to expand its rights and authority within the new judicial system. In particular, I suggest that it was the legislative and procedural continuities between the prereform and reform era that afforded physicians the occasion and impulse to secure a greater role within the state institutions, which they sought by way of legal guarantees. My argument focuses on two aspects of this situation. First, I consider the legislation that defined the medical expert's forensic obligations and procedural role in the reform period. I then turn to what contemporaries regarded as the salient tensions in this role and point to ways in which these tensions fueled broader debates about professional expertise in the autocratic legal context.
8

Russian Legislation and Medical Expertise after the Judicial Reforms: New Wine in Old Wineskins?

Since the early eighteenth century, the Russian state had defined physicians' forensic obligations and thus shaped the evolution of the Russian medical profession. ¹⁷ These rules and regulations remained active after the judicial reforms, thereby tempering any practical sense of a watershed for the rank-and-file physician, whose failure to appear when called by the court was still—in spite of much criticism from physicians—considered a criminal violation. ¹⁸ After the enactment of the 1864 judicial reforms, two separate legal formulations regulated forensic-medical practice. The older corpus of legislation, the Statutes of Forensic Medicine (Ustav Sudebnoi Meditsiny, hereafter USM), was comprised of rules dating back to 1797 and issued in compiled form in 1842. The USM constituted the third book of the several-hundred-page Medical Statute, which enumerated physicians' multitudinous obligations and reflected the ever-increasing reach of the state's custodial-administrative arm. ¹⁹ Based on the accretion of archaic forensic-medical regulations and instructions, the USM nevertheless remained virtually unchanged after the judicial reforms and underwent fundamental revisions only in 1905. ²⁰
9

      The 1864 Statutes of Civil and Criminal Procedure were the second source of forensic-medical legislation. Under the new procedure, as before, the physician was legally obliged to conduct his forensic duties in cases outlined in the law. ²¹ The reform statutes overlapped, contradicted, and supplemented the earlier legislation. ²² In terms of content, they incorporated two new areas of medical procedure absent in the USM: investigation of the accused's mental condition and the physical examination of women. ²³ By contrast, the older forensic decree focused almost exclusively on rules for the conduct of autopsies and classification of injuries, for both judicial and nonjudicial purposes.
10

      This, in fact, was part of the key distinction between the two legal formulations: According to the reform statutes, forensic physicians' responsibilities pertained exclusively to judicial proceedings—primarily, investigations of crime or the criminal—while the older USM encompassed a broad range of administrative-police functions. The continued force of this eighteenth-century legislation in conjunction with the reform statutes blurred the line between the physicians' administrative and judicial duties. Were forensic physicians still accountable to the local police administration when called upon for extrajudicial intervention? Or, as the new decrees suggested and the majority of practitioners argued, were forensic physicians servants only of the law and thereby protectors of the ideals it embodied? ²⁴
11

      Despite the efforts of the authors of the reform, police officials were not entirely excluded from the realm of forensic-medical activity, for reasons statutory and customary. As granted by the statutes on criminal procedure, the police could replace the judicial investigator in "necessary circumstances." ²⁵ Barring these exceptional cases, the police no longer had the right to independently conduct searches, confiscation, inspections, and consequently, did not have the right to designate autopsy. ²⁶ "Meanwhile," as one physician observed in 1867, "the police designate them, and will continue to designate them as long as those grounds currently listed in the Ustav of Forensic Medicine continue to exist." ²⁷ Indeed, physicians continued to serve the police, who called upon them to assist with routine and frequent administrative duties. ²⁸
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      We can illustrate this incomplete distinction between judicial and police functions with the prosaic example of the medical autopsy, the oldest and most common of all forensic-medical activities. ²⁹ The two bodies of legislation differed over which circumstances necessitated the conduct of an autopsy by a forensic physician. The older USM listed a broad range of obligatory grounds for autopsy, many unrelated to criminal investigations. ³⁰ Yet in accordance with the 1864 judicial decrees, forensic-medical investigations were to be conducted exclusively for judicial purposes. Thus, according to the new statutes, sudden death and so-called accidental death positively could not be the subject of forensic-medical investigation. Meanwhile, the USM, which listed them as obligatory, remained active. ³¹ In this way, one commentator complained, the introduction of the new criminal procedure spawned a "dual type of autopsy: one series of autopsies designated by the investigator, and the other, 'administrative-police,' designated by the police in light of the statutes of the Ustav of Forensic Medicine, strictly for the determination of the physiological type of death." ³² After the reforms, the police continued to summon forensic physicians for what previously had been their traditional if onerous administrative duties. The murkiness of the legislative criteria surrounding forensic-medical autopsies, the bulwark of the physician's forensic activity in the localities, only perpetuated already well-rooted patterns of interaction between physicians and local police authorities. As one medical writer in 1867 explained, old habits were hard to break: "What began originally as the police following the letter of the law, turned into habit, routine, and in this way, little by little it became impossible [for the police] to regard autopsies otherwise." ³³
13

      This bipartite system of legal regulation, each corpus produced under vastly different social, institutional, and procedural conditions and objectives, was, not surprisingly, a source of practical confusion and public debate for contemporaries whose livelihoods were guided by these laws. As one early Soviet historian expressed it: "Life moved forward, the form of society changed, judicial institutions underwent radical reform, but the Ustav of Forensic Medicine ... was not subject to substantial changes." ³⁴ Neither corpus was immune from attack. In the words of jurist A. F. Koni, the USM suffered from "bureaucratic didactics, ossifying in retrograde conservatism," while the new judicial decrees were "incomplete" and "characterized by armchair work which disregarded a whole series of practical questions." ³⁵ In this sense, these two bodies of law shared problems endemic to Russian legislation in general, but the similarity between these two sets of forensic-medical legislation ended there; it was the contradictions between them that posed greater concern for practitioners.
14

      While prereform forensic-medical legislation remained active and largely unaltered, contemporaries agreed that the new judicial institutions and procedure had transformed the significance of forensic medicine. The resulting clash of antiquated statutes and state-defined occupational identities with novel procedural imperatives, professional ideals, and institutional relationships led, not surprisingly, to adjudicative disarray and demands for the revision of forensic-medical legislation. In the heady first years after the enactment of the judicial reforms, optimism for such change still ran high. As academic physician V. Snigirev explained in 1867, "It is much easier to correct any matter in the beginning, than it is later on, especially in light of the newness of our criminal proceedings, which do not yet have any traditions behind them...." ³⁶ However, in order to regularize judicial process along rational lines, as desired by professionals who embraced the increasingly fashionable positivist ethos, it was necessary to instill order through the law, rather than by ad hoc, local measures.
15

The slightest ambiguity in legislation entails that practice and usus will begin to resolve the matter, and this, of course, is undesirable because practice, in its official mechanism, is not always established on strictly rational grounds. For this reason, it can easily happen that new wine ends up in old wineskins [mekhi]. ³⁷ That is, habit can introduce such a factor into the ritual side [v obriadnuiu storonu] of judicial proceedings, that will diametrically oppose the essence of the [new] institutions. ³⁸

      Two main dilemmas emerged out of this legislative muddle. First, how, if at all, did the 1864 judicial reform change the nature and significance of expertise (ekspertiza)? And second, how was one to resolve the inevitable tension produced by the retention of archaic forensic-medical legislation, originally created to serve the needs of the prereform legal system and social landscape, within the postreform judicial world? In light of this situation, it is not surprising that physicians interested in forensics were vocal proponents of legislative reform. As one commentator wrote, "The Judicial Reform of 1864, you might say, only posed the problem, but did not resolve it. Since [the introduction of the reforms] ... one repeatedly comes across indications to the unsatisfactory organization of ekspertiza, especially in the criminal process." ³⁹
16

      After the reforms, Russian criminal process consisted of two stages, the pretrial investigation and the court session. In cases that involved specialized knowledge, experts were obligated to participate at both stages. ⁴⁰ Critics sought to secure and expand the expert's procedural rights in each phase of judicial proceedings. However, the particular motivations and arguments for each stage varied in accordance with the two vastly different contexts. The court session was the site of western-oriented innovation. It was the public jury trial alone that embodied the reformers' ideals: replacing written with oral testimony, inquisitorial with adversarial procedure; introducing an independent judiciary and jury verdicts; and seeking a previously unknown measure of evenhandedness in resolving disputes at law.
17

      By contrast, the investigatory stage was a holdover from the prereform inquisitorial system. It retained many of the defining features of the prereform system so antithetical to the ideals of the judicial reform, and an anathema to the civic elite. The very structure of the investigation gave the state, in the form of the prosecution party, an unequal advantage. ⁴¹ While the ideals of the reformed criminal procedure included the presumption of innocence, the entire investigation was biased toward the authorities who accused the suspects. Russian defense lawyers (zashchitniki)—like their French counterparts until 1896—faced extreme restrictions on their role in the investigation. ⁴² Within this already imbalanced investigatory context, in which primarily the state's interests were represented, the investigator's vast responsibilities included the questioning of witnesses, gathering of physical evidence, preparation of investigatory documents, and collection of all medical and other types of expertise. The information that the investigator amassed formed the basis for the state's bill of indictment, which in effect served as the starting point of the trial. At the trial session, the defense's task was to challenge and overcome the state's indictment. The pretrial investigation, as such, remained a repository of state interests.
18

      From the critics' perspective, the expert's role during the pretrial investigation was just as important, if not even more so, than during the court session. On the one hand, the investigation shaped the terms of the state's indictment, and in turn, the course of the trial. On the other hand, the essence of the physician's work was conducted at this stage alone. This included the medical examination itself; the physician's questioning of the defendant and/or witnesses; the transcription of notes jotted down during the examination into official, stylized conclusions; and the compilation of his official report, which the state's prosecutorial agent, the procurator (prokuror), considered when drawing up the indictment. The formal purpose of the court session was merely to check, clarify, or supplement the information gathered during the investigation. While the original experts who participated in the investigation were obligated to present their conclusions orally at the court session, the trial could not serve as a substitute arena for any of their obligatory pretrial functions. For these reasons, and the more obvious professional motivation that an expert's public (and often, highly publicized) court appearance was only as solid as his pretrial work, the polemics over the expert's procedural status often began with this first, contentious stage.
19

      Where did medical expertise fit in the new procedural statutes? As in other continental legal systems based on Roman-canonical procedure, the investigator was responsible for establishing the fact that a criminal act, indeed, had been committed. ⁴³ The establishment of the fact of the crime, the corpus delicti (in Russian legal terminology, sostav prestuplenii), was—as under the prereform system—a prerequisite for the formulation of an indictment. ⁴⁴ When the investigator deemed special types of knowledge necessary to establish this fact, he was required to call in the appropriate type of expert. ⁴⁵ Medical expertise was included in the investigatory mix under this theoretical-procedural rubric, carried over from the prereform inquisitorial procedure. As it appeared in the statutes, medical investigations were subsumed under the investigator's rules for inspection and written testimony (osmotr and osvidetel'stvovanie). The organization of Russian procedural statutes, arranged like nesting eggs, moved from the broadest rubric (the investigator's activity) to the most specific (medical investigations), with each category subsuming the one just beneath it. First were the rules for the investigator's examination and its documentation, ⁴⁶ followed by guidelines for the investigator's invitation of experts, broadly termed "knowledgeable people" (svedushchie liudi). ⁴⁷ After this all-encompassing category were directions pertaining specifically to investigations "via physicians," ⁴⁸ followed by articles devoted to specialized subgroups of medical expertise, which included the examination of women and the examination of the defendant's mental condition. ⁴⁹ In practical terms, the investigator oversaw all types of investigatory activity—specialized or otherwise. Even in those cases involving medical experts, the investigator was required to conduct his own preliminary external examination of the subject, compile his own protocol about it, and supervise the expert's work. Moreover, he could express any and all critical opinions and doubts about the expert's findings, without clarifying his basis for them, and was to include such views in his protocol, which was ultimately reviewed by the procurator. ⁵⁰
20

      While the law recognized medical investigations as but one of myriad types of expert knowledge employable by the courts, in their arguments critics tended to isolate, focus on, and generalize from medical expertise. To be sure, some of the statutory articles under critics' fire pertained more generally to "knowledgeable people," broadly defined in the statutes as "those who have special knowledge or experience in science, art, craft, industry or any other kind of activity." ⁵¹ Nevertheless, those who called for the modification of these procedural statutes almost exclusively drew their examples from forensic medicine, in terms of both its intellectual and practical imperatives. While rarely citing comparative statistics, legal and medical commentators, as well as governmental officials, unanimously maintained that medical expertise was the most frequent type of expertise employed in the criminal process and, beyond that, the most important.
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      Reflecting the future-oriented attitudes of those who voiced this opinion, as much as the judicial practice they sought to describe, the focus on medical expertise began within the first year of the reformed courts' activity. As one jurist wrote in 1865 in the Journal of the Ministry of Justice, "Anyone who follows at all seriously the course of contemporary judicial or administrative practice can easily notice that with each day the number of questions presented to this [forensic-medical] practice, and regarding which forensic medicine must say the last word, is increasing more and more...." ⁵² Two decades of judicial practice later, critics' emphasis on medical expertise only gained in strength. "Medical expertise is incontestably the most frequent type of expertise in the criminal process," one professor of legal medicine affirmed in 1892. "Therefore," he continued, "medical expertise before all other types of scientific expertise must be organized in an appropriate manner." ⁵³ The presumed significance of medical expertise in commentators' eyes informed and bolstered their attempts to clarify and secure this form of specialized knowledge in the criminal process. Jurist A. Sokolov, for example, contended in 1890 that "... the correct and precise definition of the procedure for forensic-medical ekspertiza, the rights and responsibilities of the expert-physicians, the bounds of their testimony, and the significance of their conclusions are the most important conditions not only for the proper conduct of the preliminary investigation, but also for the correct exercise of criminal justice in those cases, that the court decides upon hearing the physician-expert's conclusions." ⁵⁴
22

      Among judicial personnel, and in accordance with procedural dictates, the medical expert interacted most intensively and directly with the investigator; this relationship, in turn, was the most contentious of all of the medical expert's procedural interactions. Unlike the office of the procuracy, which predated the judicial reforms by more than a century, the post of judicial investigator was introduced only on their eve, created in 1860 as part of the reform of criminal investigative procedures. ⁵⁵ With the consolidation of these changes in the 1864 statutes, the judicial investigator came to play a major role in the reformed criminal procedure, particularly the pretrial investigation. Yet despite the post's seemingly auspicious origins, the investigator in large part simply replaced the police in handling the investigation.
23

      Indeed, the reform statutes afforded investigators much discretionary power over the course of the forensic-medical investigation. The investigator decided which experts to call in, how many experts to call in, where the physician was to conduct the medical investigation, what questions the physician was to investigate, and whether the physicians' conclusions raised doubt and warranted review by higher authorities, or the invitation of new experts. This almost unlimited scope of power was not unique to Russian investigators, who like French and German investigating magistrates were invested with significant authority to shape the investigation. In France, for example, as outlined in the 1808 code d'instruction criminelle (which was modified only slightly throughout the course of the century), the key figure in the judicial process was the juge d'instruction, or investigating magistrate. ⁵⁶ According to historian Ruth Harris, the French investigating magistrate was "often portrayed as a redoubtable figure, the resurrected version of the royal magistrate under the ancien regime, mandated to prepare a case against the defendant which his superiors would use in the prosecution." ⁵⁷ Nevertheless, gauging by the historical accounts of the foremost students of French forensic medicine, as well as the contemporary tracts of continental medical experts, this procedural pecking order did not generate controversy abroad. And it certainly was not the lightening rod for debates over the expansion of medical experts' rights, professional authority, and evidentiary status, as in Russia. ⁵⁸ There, by contrast, the judicial investigator—as executor of the pretrial investigation and inheritor of what had been police functions under the prereform system—was in many ways the most visible symbol of the state's residual prerogatives in the new judicial system. In this light, it is not surprising that one of the most resonant charges against the new procedural decrees was that they did not define "kto khoziain" or "who's the boss": the physician or the investigator?
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Legislative Muddle and the Question of Expert Status

Eminent jurist A. F. Koni told the Criminal Section of the St. Petersburg Juridical Society that, with regard to the relationship of the expert to the court, Russian legislation had developed two completely contrary points of view at one and the same time. ⁵⁹ Ironically, it was the older corpus of legislation, the USM, that specified that the forensic physician was in charge, stating that "the physician, as a bureaucrat (chinovnik), having special knowledge of the given subject, is the first person (pervoe litso)." ⁶⁰ By contrast, the judicial reform decrees made no explicit mention of the relative authority between the investigator and physician. Some physicians, however, interpreted this omission as a sign of the expert's increasing autonomy. Indeed, the language of the new statutes reflected a change in attitude. The line of argument cut two ways: First, this was evidence that the framers of the judicial decrees viewed the physician as an "expert" rather than as a state functionary; and second, the physician's status and significance under the new procedure were determined by the nature of the case—not administrative orders—and thus no special formula in the law was necessary. As one doctor argued in 1867, the very absence of the designation of "who was in charge" in the reform statutes reflected the question's irrelevance under the new court system. In his view, such a designation was
25

necessary in its time, when the physician in any locale and in any situation felt the pressure of different police officials.... The expression found in the USM--that the physician, during the forensic-medical autopsy, is the "person in charge"—more or less emancipated him from this police pressure and consequently, influenced to a certain extent the autonomy and independence of his investigation and opinion. Now, the spirit of the times has changed somewhat, and the physician's relationship to the court institutions and personnel is such that their pressure in this regard is completely inconceivable. ⁶¹

      Others were not so sanguine. As their evidence, critics of this legislative ambiguity pointed to the contingency and arbitrariness with which investigators granted the expert access to essential case information and materials. The absence of any positive expression in the law in this regard left such decisions up to the investigator's discretion. The authority that this omission gave investigators by default, critics complained, was untenable from the medical perspective and detrimental to the case as a whole. Reform-minded jurists and physicians contended that, with no knowledge of medicine, investigators (who by the late nineteenth century overwhelmingly were trained jurists themselves) were neither qualified nor capable of making judgments related to medical investigations.
26

      Most physicians sought complete authority over the medical side of the investigation. The authority of medical experts was, at the very least, to be equal and parallel to that of investigators. Some physicians even called for the transfer of all of the investigator's functions to the medical expert. ⁶² Reinforcing the boundary between these proposed parallel spheres of authority, one Khar'kov physician asserted that in the field of science, the investigator "does not have the slightest understanding" and was in fact "only window dressing, an accessory, and in essence completely unnecessary." ⁶³ Not only were they called superfluous, however, investigators also were charged with impeding and derailing investigations by presenting "worthless" and "ignorant" questions to medical experts and denying them potentially relevant information. In their attempts to secure professional authority over their forensic activities, physicians demanded the regularization of access to case materials and participants.
27

      Physicians argued for the necessity of such access and autonomy on a blend of intellectual, moral, and professional grounds. Being provided with all case documents, as well as access to witnesses and the defendant, practitioners urged, was essential to the physician's proper conduct of ekspertiza, which in turn was critical for the proper course of justice. Most often, critics employed the example of psychiatric expertise to illustrate and justify their arguments. In one such situation, physician E. F. Bellin explained, "In many cases, for example, for the clarification of the accused's mental condition when the question of legal responsibility (vmeniaemost') arises ... only the physician can designate the proper method for achieving the goal of the interrogation of the accused or a witness. Only during his [the physician's] participation can the question be resolved in a desirable manner." ⁶⁴ According to this line of argument, the investigator could only harm the case when he interfered in this process of interrogation, dependent as it was on special training and knowledge of mental medicine. This is just one example of the way in which physicians' arguments for the expansion of their procedural rights were inextricably linked to their medical conceptions of insanity, its etiology, and its physical and behavioral manifestations. In this way, scientific imperatives became legal imperatives.
28

      Critics extended their basic arguments for the expansion of experts' rights to the trial session, despite the significantly different procedural dynamics of the court setting. In the context of adversarialism rather than inquisitorial procedure, and under the supervision of an independent judiciary rather than the state's procurator and investigator, the question of who was in charge was rarely raised. ⁶⁵ Instead, debate crystallized around those issues particular to the trial context, such as the appropriate criteria for evaluating medical testimony. Legal and medical commentators went further than the authors of the 1864 reforms. They insisted that medical expertise was methodologically and ideologically distinct and that this distinction should be reflected in its status and evidentiary weight. This topic spawned a hefty body of specialized polemical literature in conjunction with and support of arguments for securing and expanding the expert's rights. As in the West, physicians and jurists proposed a range of models. A sampling of these proposals includes: the physician-expert as witness (technical, scholarly, rational); interpreter of circumstances for the judge; assistant to the judge (described variously as part of his ears, eyes, and thoughts); scientific judge (in the expert's given sphere of competence); and judge of facts. ⁶⁶
29

      While this question remained open throughout the late imperial period, the general view that medical expertise was exceptional and privileged in its status was confirmed by the Senate's Criminal Cassation Department, the highest court of appeal in criminal cases under the new judicial system. The apex of Russia's judicial pyramid, the Cassation Department was the major postreform source of legal revision in the form of decisions that tinkered with judicial procedure. Cassation decisions, officially nonbinding, acquired the significance of law and to an extent operated as a de facto system of precedent. ⁶⁷ In 1875, the Cassation Department passed the ruling that "although ekspertiza, like any other kind of evidence has no precendential strength, there is no doubt that in cases that involve scientific and technical questions, ekspertiza should be regarded among the most important types of evidence, the strength and significance of which can be challenged only in exceptional cases, for example, when it is conducted by non-specialists in a given subject." ⁶⁸
30

      Indeed, in the decades after the judicial reform the Criminal Cassation Department gave its imprimatur to the views of medical expertise that medical and legal practitioners had been promulgating. Throughout the 1870s and 1880s, the Cassation Department expanded the medical expert's access and autonomy with a patchwork of nonbinding decisions. These rulings recommended that medical experts be allowed to review all case documents; remain present during the trial proceedings; and, with the permission of the court, present questions to witnesses via the presiding judge, or, with his permission, directly to the witnesses, to name a few. ⁶⁹
31

      If, however, the Cassation Department repeatedly decided in favor of granting the access physicians sought, why did these debates not only flourish but continue to heat up in the very period the rulings were made? Looking again to the West, Russian physicians sought the legal guarantees their continental counterparts received. ⁷⁰ As contemporary legal scholar L. E. Vladimirov described, "... those rights of the expert, which in Russia are based only on cassation practice, in Germany are established by law." ⁷¹ Without such guarantees, the nonbinding cassation decisions were treated as a "privilege," not a legal right. In practice, the granting of such privileges was decided in a case-by-case manner, not according to any overriding legal principle, but according to the all-too-familiar exercise of arbitrary decision making on the part of the state, or, in this case, its proxy, the state court official. Once again, what was at stake was the question of "arbitrary power" (proizvol) versus due process and legal guarantees of the rule-of-law state. ⁷² Based on their experiences in far-flung provinces, practitioners accepted as a given the fact that, in the localities, the interpretation of laws depended on the individual views of the provincial jurists. As one member of the Medical Section of the Poltava Provincial Board matter-of-factly explained, "... frequently the number of forensic-medical post-mortems in a given district will go up or down with the switching of an investigator or police official." ⁷³ However, what troubled critics was not the prevalence of individual variability but the elimination of arbitrariness—or the potential for it—that was built into the judicial system itself.
32

      Calls for the expansion of the medical expert's legal role took their most extreme form in the case of psychiatric expertise. By the end of the century, forensic psychiatrists were calling for judicial-institutional reform in the name of both social welfare and scientific interests. Prominent psychiatrists argued that the state's judicial and penal institutions should be reorganized on the basis of a more pervasive and influential role for medical expertise in general, and forensic psychiatry in particular. This expanded role, prophylactic in its ideal form, was to include the forensic-psychiatric examination of every criminal offender—the "criminal class"—at each stage of judicial procedure and within penal institutions. However, with regard to the form of this institutional reorganization, Russian forensic psychiatrists—in sharp contrast to their European counterparts—rejected the idea of any institution or bureau of expertise that was either centralized or vested with autonomous authority. Instead, Russian physicians insisted that the expansion and development of forensic medical expertise take place at the local level and in close conjunction with local, albeit transformed, judicial institutions. ⁷⁴
33

      The question still remains: how far were they willing to go? If, as I have argued in this essay, questions of procedural status and professional authority were two sides of the same coin, how far were Russian professionals willing to push their arguments for the expansion of the expert's role? The boundaries were tested at an 1891 meeting of the Moscow Juridical Society, which was devoted to the question of the necessity to revise the forensic-medical legislation and was attended by such distinguished Moscow physicians as S. S. Korsakov and I. I. Neiding. The parameters of the professionals' mission were revealed in responses to the proposition of Dmitrii A. Dril', trained in both medicine and the law, that medical testimony, especially in questions of the defendant's criminal responsibility, be considered obligatory for the judge. ⁷⁵ At first blush, the premise of Dril''s suggestion was no different than that which statute defined and medico-legal discussions confirmed: "In those instances when technical questions arise, the court separates them from the general question and refers them to technical specialists for resolution." ⁷⁶ Fellow committee members objected to what followed: "If the law recognizes insanity (sumasshestvie) as a basis of nonresponsibility (nevmeniaemost'), then physicians, having pronounced the accused mentally ill (dushevno-bol'noi)—in accordance with that law--by themselves eliminate the question of responsibility (vmenenie) in each given case. Subsequently, it is not necessary to refer this question once again to jurists for resolution." ⁷⁷ Regarding the question of responsibility, he continued, "the opinion of physicians should be mandatory for the court." ⁷⁸
34

      Committee members rebuffed Dril''s proposal sharply. Jurist A. M. Fal'kovskii not only rejected the excesses of Dril''s proposal, he returned to the stark letter of the law that had, up to that point, been interpreted generously in discussions of expert status. Outraged, this jurist censured such a proposition, stating that
35

Dril' proposes a completely new court—a court of doctors. Such a court is not only impossible, but it will not and cannot be—for doctors can only be "knowledgeable people," and not judges.... All that society has accomplished at present leads to the fact that we, under the exercise of justice, must act by joint strength and means, and not ask ourselves the question that was asked by Dril', about the establishment of a court of doctors. ⁷⁹

      These strong words, supported by the other participants, underline the Russian perspective that, while professional expertise was essential to ensure and direct the proper course of justice, it was to be conducted in accordance with, rather than above, the rule of law and—most important—in conjunction with legal professionals with whom physicians sought the individual protections and disciplinary autonomy that, at least in theory, the rule of law could provide.
36

      A succinct expression of the predominant Russian viewpoint was voiced at a subsequent meeting (1898) of the same Moscow Juridical Society. At this gathering, legal practitioner E. M. Barantsevich read an essay on the legal and practical situation of forensic medicine, which he based on his twenty-five-year experience as a judicial investigator. The epigram of his essay aptly sums up the broader political and social objectives that animated late nineteenth-century Russian debates over medical expertise. In his words: "Let the physician and the jurist by means of joint strength support the ideals of service to society, love of humanity, legality and respect of individuality (lichnost')." ⁸⁰
37

      In this manner, the Russians were distinct from their Western confreres. In both England and the United States, physicians by mid-century were in professional gridlock with a legal profession that had either long-standing status (England) or an increasingly powerful presence in the courtroom (U.S.). ⁸¹ Continental colleagues, despite the approximate correspondence of their procedural role to that of the Russians, also engaged in professional turf wars beginning in the early nineteenth century. ⁸² Indeed, with changing medical ideas about crime and deviance in the 1880s and 1890s, French and Italians in particular did engage in collaborative medico-legal efforts, but these were mainly in the form of broadly administrative alternatives that transcended the guarantees of justice embodied in classical law in the interest of "social defense." ⁸³
38

      The Russian context differed in several significant ways. Russian physicians—who read the same scientific literature and participated in the same international-intellectual community as their Western colleagues—stressed the convergence rather than conflict between their interests and those of legal practitioners. The desire to enhance their own professional standing—dependent as it was on the success of legality and protection of rights—led professionals to augment, rather than minimize, the physician's role and autonomy in the judicial apparatus in order to transform the otherwise arbitrary practices of the legal process along the lines of technical expertise. While Russian physicians were not alone in seeking to expand and institutionalize the purview of their expertise, it is significant that they sought to insinuate this form of professional authority into the autocratic context via the accretion of legal rights rather than by increasing their administrative duties, or, the equally decried inverse: extrajudicial authority considered tantamount to the unrestrained forms of state intervention they strove to eliminate. These cooperative efforts of medical and legal professionals—to ensconce medical authority more centrally within the state's judicial institutions and promote the expert's autonomy—demonstrate the ways in which the process of professionalization in late imperial Russia became associated with the ideal of legality and led to demands for liberal legal reform.
39

Elisa M. Becker is a doctoral student at the University of Pennsylvania. She would like to extend special thanks to Alfred Rieber for his invaluable contributions and ongoing support to the development of this research. She also would like to thank George, Anna, and Linda Becker for their continued encouragement. All translations are the author's.

Notes

      1. Studies of medico-legal debates in the West include: Michael Clark and Catherine Crawford, eds., Legal Medicine in History (Cambridge: Cambridge University Press, 1994); Thomas Forbes, Surgeons at the Bailey: English Forensic Medicine to 1878 (New Haven and London: Yale University Press, 1985); Jan Goldstein, Console and Classify: The French Psychiatric Profession in the Nineteenth Century (Cambridge: Cambridge University Press, 1987); Ruth Harris, Murders and Madness: Medicine, Law and Society in the Fin de Siècle (Oxford: Clarendon Press, 1989); James C. Mohr, Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America (Oxford: Oxford University Press, 1993); Robert Nye, Crime, Madness and Politics in Modern France: The Medical Concept of National Decline (Princeton: Princeton University Press, 1984); Charles E. Rosenberg, The Trial of the Assassin Guiteau: Psychiatry and Law in the Gilded Age (Chicago: University of Chicago Press, 1988); Roger Smith, Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981); and Janet Tighe, "A Question of Responsibility: The Development of American Forensic Psychiatry, 1838-1930" (Ph.D. diss., University of Pennsylvania, 1983).

      2. The 1864 reform statutes in their entirety are known as Sudebnye ustavy 20 noiabria 1864 goda and are contained in Polnoe sobranie zakonov Rossiiskoi Imperii, vol. 39, 2d ser., 1864 (St. Petersburg, 1867).

      3. As historian of Russian legal culture Joan Neuberger summarizes: "The Judicial Reform of 1864 has been considered the most successful of the Great Reforms. Yet its primary goal was to instill a respect for law in Russian society, and there is wide agreement that after the reform Russia remained deficient in precisely this area. The specific goals of the Judicial Reform were to eradicate the convoluted and corrupt old judicial system and to replace it with a modern, independent judiciary, modeled on Western institutions and based on the principle of equality before the law. In social and cultural terms, reformers hoped that exposure to the rule of law, institutionalized in the new courts, would create a legally literate population that could be assimilated into a unified, orderly, civil society." Joan Neuberger, "Popular Legal Cultures: The St. Petersburg Mirovoi Sud," in Russia's Great Reforms, 1855-1881, ed. Ben Eklof, John Bushnell, and Larissa Zakharova (Bloomington: Indiana University Press, 1994), 231. On the judicial reforms, see Richard Wortman, The Development of a Russian Legal Consciousness (Chicago: University of Chicago Press, 1976). See also Peter H. Solomon, Jr., ed., Reforming Justice in Russia, 1864-1996: Power, Culture, and the Limits of Legal Order (Armonk, NY, and London: M. E. Sharpe, 1998); Alexandr K. Afanas'ev, "Jurors and Jury Trials in Imperial Russia, 1866-1885," in Russia's Great Reforms, 214-30; Samuel Kucherov, Courts, Lawyers and Trials under the Last Three Tsars (New York: F. A. Praeger, 1953); and I. V. Gessen, Sudebnaia Reforma (St. Petersburg, 1905).

      4. On the continuity of legal traditions, see Girish N. Bhat, "Trial by Jury in the Reign of Alexander II: A Study in the Legal Culture of Late Imperial Russia, 1864-1881" (Ph.D. diss., University of California, Berkeley, 1995). For the various social, political, and institutional dimensions of the Great Reforms, see Eklof, Bushnell, and Zakharova, eds., Russia's Great Reforms.

      5. See Solomon, ed., Reforming Justice, esp. 21-130; Peter Czap, "Peasant Class Courts and Peasant Customary Justice in Russia, 1861-1912," Journal of Social History 1, no. 2 (Winter 1967): 149-78; Stephen Frank, "Popular Justice, Community and Culture among the Russian Peasantry, 1870-1900," The Russian Review 46 (1987): 239-65; Cathy A. Frierson,"Rural Justice in Public Opinion: The Volost' Court Debate, 1861-1912," Slavonic and East European Review 64 (1986): 526-45; Neuberger, "Popular Legal Cultures," 231-46.

      6. See Solomon, ed., Reforming Justice; Brian L. Levin-Stankevich, "The Transfer of Legal Technology and Culture: Law Professionals in Tsarist Russia," in Russia's Missing Middle Class: The Professions in Russian History, ed. Harley D. Balzer (Armonk, NY, and London: M. E. Sharpe, 1996), 223-49. On reform of adjudicative processes, see Bhat, "Trial by Jury"; on the introduction of the jury system, see John Atwell, "The Jury System and its Role in Russia's Legal, Social, and Political Development from 1857-1914" (Ph.D. diss., Princeton University, 1970); for the reform of appellate functions, see Brian L. Levin-Stankevich, "Cassation, Judicial Interpretation and the Development of Civil and Criminal Law in Russia, 1864-1917: The Institutional Consequences of the 1864 Court Reform in Russia" (Ph.D. diss., University of New York at Buffalo, 1984).

      7. See, for example, Elizabeth A. Hachten, "Science in the Service of Society: Bacteriology, Medicine, and Hygiene in Russia, 1855-1907" (Ph.D. diss., University of Wisconsin-Madison, 1991); and Daniel Todes, "From Radicalism to Scientific Convention: Biological Psychology in Russia from Sechenov to Pavlov" (Ph.D. diss., University of Pennsylvania, 1981).

      8. While the circuit (okruzhnoi) court was the most prominent postreform forum in which physicians conducted their forensic obligations, medical practitioners also performed forensic duties at other administrative levels. Forensic medicine, including questions of mental competency, was legislatively defined and institutionally organized according to a three-tiered system composed of district and city doctors; the medical section of provincial administrations; and the Medical Council, which operated under the Ministry of Internal Affairs.

      9. According to the prereform laws of proof, the probative value of expert testimony was thus stated: "The testimony of medical officials is accepted as absolute proof, when it, having been conducted on a legal basis, contains clear and positive attestation about the subject and does not contradict the reliable circumstances of the case." See Svod zakonov Rossiiskoi Imperii, vol. 15, bk. 2, O sudoproizvodstve po prestupleniiam (St. Petersburg, 1832), article 1042. With the promulgation of the judicial decrees of November 20, 1864, these rules lost their significance. With regard to the statutes outlining the new approach to judgment "according to inner conviction" in criminal cases, see Sudebnye ustavy 20 noiabria 1864 goda, vol. 2, Ustav ugolovnogo sudoproizvodstva [Statues of Criminal Procedure] (St. Petersburg, 1867), articles 119, 766, 803, and 804. With regard to civil cases, however, the new statutes did not require the court to obey those expert opinions that were "not in agreement with the reliable circumstances of the case." Sudebnye ustavy 20 noiabria 1864 goda, vol. 1, Ustav grazhdanskogo sudoproizvodstva [Statutes of Civil Procedure] (St. Petersburg, 1867), article 533.

      10. Forensic medical questions were discussed at twelve congresses from 1885-1913, during which more than twenty papers were devoted to this topic. Presenting these works were various types of physicians involved in forensic-medical activity: university professors, inspectors of the medical section of provincial administrations, and district and city doctors. The geographical representation was equally diverse, though primarily drawn from university cities such as Moscow, Kazan, Kiev, and St. Petersburg. For a description of the scientific and organizational topics discussed, see A. M. Gamburg, Razvitie sudebnomeditsinskoi nauki i ekspertizy, po materialam s''ezdov i soveshchanii (Kiev: Gosudarstvennoe Meditsinskoe Izdatel'stvo USSR, 1962). On the Pirogov Society's role in the development of the Russian medical profession's service ethos and political activity, see Nancy M. Frieden, Russian Physicians in an Era of Reform and Revolution (Princeton: Princeton University Press, 1981).

      11. See for example, "Voprosy vrachebnoi ekspertizy v obsuzhdenii Moskovskogo Iuridicheskogo Obshchestva (Svodnyi protokol zasedanii Moskovskogo Iuridicheskogo Obshchestva 21 oktiabria, 4 noiabria i 3 dekabria 1891 g.)," Iuridicheskii vestnik no. 11 (1892): 386-410; and Doklad soedinennoi kommisii s.-peterburgskikh obshchestv psikhiatrov i iuridicheskogo po voprosu ob organizatsii psikhiatricheskogo izucheniia prestupnogo klassa (St. Petersburg, 1894).

      12. For a comprehensive and detailed discussion of this topic, see Laura Engelstein, The Keys to Happiness: Sex and the Search for Modernity in Fin-de-Siècle Russia (Ithaca: Cornell University Press, 1992).

      13. William G. Wagner, "Civil Law, Individual Rights, and Judicial Activism in Late Imperial Russia," in Reforming Justice, 21-43.

      14. These efforts at revising the content of criminal laws in 1895 produced a new criminal code, which was officially approved in 1903, though never enacted. On the history of earlier attempts to modify Russia's criminal code, see Engelstein, Keys to Happiness, 20-22. With regard to the governmental links of the medical elite, prominent St. Petersburg physicians, all of whom served as experts in court, were chosen to act as advisory members of the Medical Council under the Ministry of Internal Affairs. The Medical Council was founded in 1803, began work in 1804, and functioned for over a century until the downfall of the tsarist regime. Members were responsible for decisions and questions about the organization of medical and psychiatric practice, reviews and notifications of medical publications, and the rendering of expertise in contested and controversial criminal cases. Leading medical men who frequently testified before the St. Petersburg circuit court and served as Council members included: I. M. Balinskii (Council tenure, 1861-1895); I. P. Merzheevskii (1876-1908); and V. M. Bekhterev (1894-1916). Between 1822 and 1912, the Medical Council oversaw 5,956 cases that demanded forensic-medical analysis and decisions.

      15. See Harris, Murders and Madness; Nye, Crime, Madness and Politics; Mohr, Doctors and the Law; Rosenberg, Trial of Assassin Guiteau; and Smith, Trial by Medicine.

      16. Daniel T. Orlovsky, "Professionalism in the Ministerial Bureaucracy on the Eve of the February Revolution of 1917," in Russia's Missing Middle Class, ed. Balzer, 267-92. In this essay, Orlovsky examines the "ministerial bureaucracy," by which he means the central institutions of domestic administration, which most often (but not always) were named "ministries" along with their provincial hierarchies and the personnel of both central and provincial offices. In particular, he examines the way in which the existence of individuals with professional qualifications and aspirations in high posts in the ministerial bureaucracy, and the increasing numbers of those in lower posts, is symptomatic of the historical process of professionalization in Russia.

      17. Peter the Great first defined in law the situations in which medical expertise was obligatory, issuing regulations in 1714 (Military Instructions and Articles), which ordered that physicians be summoned by courts in all cases requiring a specific knowledge of medicine, and in 1716, requiring physicians to conduct autopsies in all cases in which there was suspicion of violent death. Subsequent legislative acts defining the physician's forensic responsibilities were compiled mechanically in 1832 for the publication of the Digest of Laws (Svod zakonov Rossiiskoi Imperii). The 1842 Statutes of Forensic Medicine, which remained active until 1917, systematized these laws and regulated more comprehensively forensic-medical practice. The judicial reform of 1864 further elaborated and defined forensic-medical procedure. Sudebnye ustavy, vol. 1, Ust. grazh. sudoproiz., and vol. 2, Ust. ugol. sudoproiz. For a general historical discussion of Russian forensic medical practice with reference to legislation, see I. F. Leonov, "O razvitii sudebnoi meditsiny otechestvennoi i otnoshenii ee k russkomy zakonodatel'stvu," in Zapiska i rech', chitannye v torzhestvennom sobranii Imperatorskogo Universiteta Sv. Vladimira (Kiev, 1845), 1-21. For Soviet accounts of the prerevolutionary development of forensic medicine, see V. A. Rozhanovskii, Sudebno-meditsinskaia ekspertiza v dorevoliutsionnoi Rossii i v SSSR (Moscow: Narkomzdrav, 1927); and S. V. Shershavkin, Istoriia otechestvennoi sudebno-meditsinskoi sluzhby (Moscow: Meditsina, 1968).

      18. Ulozhenie o nakazaniiakh ugolovnykh i ispravitel'nykh (St. Petersburg, 1866), article 874. On the forensic physician's legal obligation to appear when called to an investigation, and penalties for his failure to do so, see P. V. Makalinskii, "K voprosu ob otvetstvennosti sudebnykh vrachei za neiavku k sledstviiu," Sudebnyi vestnik. Gazeta Ministerstva Iustitsii no. 99 (1875): 3.

      19. The Medical Statute was incorporated in 1857 into the Digest of Laws as part of volume 13: The Statutes on Food Supply, Social Welfare, Medical Practice and the Medical Police. Svod zakonov, vol. 13, Ustavy: O narodnom prodovol'stvii, obshchestvennom prizrenii, i vrachebnye (St. Petersburg, 1857). On the Medical Statute as the object of the medical profession's criticism over state intrusion and, in particular, those articles that defined the physician's ethical code, see Frieden, Russian Physicians, esp. 265-73. For a historical analysis of the cameralist ideas and practices that informed tsarist approaches to state medicine, see Marc Raeff, The Well-Ordered Police State: Social and Institutional Change through Law in the Germanies and Russia, 1600-1800 (New Haven: Yale University Press, 1983). On how Catherine, following the European model, applied the eighteenth-century notion of the custodial state to the medical sphere, see John T. Alexander, "Catherine the Great and Public Health," Journal of the History of Medicine 36, no. 2 (1981): 185-204.

      20. The Medical Statute of 1892 repeated almost word for word the many legal impositions of earlier decrees. Svod zakonov, vol. 13, Vrachebnyi ustav (1892) lists the previous laws on which this edition is based, demonstrating the durability of physicians' legal obligations. Only in 1905 was the USM significantly changed when in place of the 133 articles, which appeared in the publication of 1892, only 19 remained.

      21. Ust. ugol. sudoproiz., article 336.

      22. In the USM, forensic medical investigations in criminal cases are divided into three main sections: autopsies; injuries; procedure. The judicial statutes of 1864 retain roughly the same division.

      23. Ust. ugol. sudoproiz., articles 350-352 pertain to the examination of women, and articles 353-355 to the accused's mental condition.

      24. For a cross-section of Russian physicians' police-administrative duties: on the conflict over the grounds for forensic-medical autopsy, see V. Snigirev, "O povodakh k sudebno-meditsinskim vskrytiiam mertvykh tel," Arkhiv sudebnoi meditsiny i obshchestvennoi gigieny no. 3 (1866): 48-58 (hereafter Arkhiv sudebnoi meditsiny). On physicians' duties under the state's police-enforced regulation of prostitution, see Laurie Bernstein, "Yellow Tickets and State-Licensed Brothels: The Tsarist Government and the Regulation of Urban Prostitution," in Health and Society in Revolutionary Russia, ed. Susan Gross Solomon and John F. Hutchinson (Bloomington: Indiana University Press, 1990), 45-65. On the enlistment of physicians for the medical examination of corporal punishment subjects, from the point of view of a forensic physician, see P. S. Pokryshkin, "O sudebno-meditsinskoi ekspertize po otnosheniiu k sudebnym prigovoram," Arkhiv sudebnoi meditsiny no. 1 (1871): 23-25.

      25. Ust. ugol. sudoproiz., articles 250, 244, and 258.

      26. Ibid., article 254.

      27. V. Snigirev, "Ustav sudebnoi meditsiny 1857 goda i sudebnye ustavy 1864 goda," Arkhiv sudebnoi meditsiny no. 2 (1867): 6.

      28. This arrangement did not trouble all physicians. As physician Snigirev stated: "For the physician and for ekspertiza it makes absolutely no difference: whether the autopsy is designated by this or that individual, and whether during it the investigator is present, or the police official. Consequently, this circumstance cannot in any way influence the course of the case or negatively affect the status of the physician-expert." Snigirev, "Ustav sudebnoi meditsiny," 5.

      29. See above, note 17. E. V. Pelikan (1824-1884), professor of forensic medicine at St. Petersburg's Military Medical Academy and director of the Medical Department of the Ministry of Internal Affairs, sought to illustrate with comparative, if uneven, figures the newfound significance and widespread application of forensic medicine in criminal cases. His figures attest to the relative frequency of autopsies in comparison to other types of forensic-medical activity. From 1861 to 1866 12,000 autopsies were conducted. In 1865 chemical-microscopic investigations of "suspicious stains" were conducted 315 times, in 1866 417 times, and in 1867 (up to December) 379 times; in 1862 forensic-chemical investigations of poisons were conducted 320 times, 1863 346 times, 1864 416 times, 1865 449 times, 1866 444 times, and 1867 (until the end of December) 550 times. With regard to forensic-psychiatric questions, in Pelikan's words, "Suffice it to say that in Russian courts the question of the accused's mental illness was initiated in 800 cases annually." E. V. Pelikan, "O znachenii estestvennykh nauk dlia iurisprudentsii," Arkhiv sudebnoi meditsiny no. 2 (1868): 37-46.

      30. USM (1857), articles 1736-1854. See also, "About the grounds for forensic-medical autopsy."

      31. The USM retained its force upon the enactment of the judicial reforms by virtue of a single cross-reference to it in Ust. ugol. sudoproiz., article 342. For tabulation of forensic-medical cases of "sudden death" in a single province, see M. N. Surkov, "Sudebno-meditsinskie sluchai v Simbirskoi gubernii, v 1860-1864 godakh," Arkhiv sudebnoi meditsiny no. 1 (1866): 8-27. The author was a district physician in Simbirsk.

      32. For example, before a burial could take place, the police were required to confirm—via inquest—that the death was not the result of violence. Under this administrative formality, forensic physicians continued to participate in cases of sudden death. Snigirev, "Ustav sudebnoi meditsiny 1857," 7.

      33. P. R. "Glasnyi sud i vrachi-eksperty," Arkhiv sudebnoi meditsiny no. 4 (1867): 14.

      34. Rozhanovskii, Sudebno-meditsinskaia ekspertiza, 33.

      35. A. F. Koni, "O zadachakh russkogo sudebno-meditsinskogo zakonodatel'stva," speech of October 27, 1890, in Iuridicheskaia letopis' 1, chron. (January 1891): 74.

      36. Snigirev, "Ustav sudebnoi meditsiny," 2.

      37. Common in Eastern countries in the last century, this was a large sack made from animal skin for holding wine.

      38. Snigirev, "Ustav sudebnoi meditsiny," 2.

      39. S. Godlevskii, "O sudebnoi ekspertize: K voprosu o znachenii 'svedushchikh liudei' v ugolovnom sudoproizvodstve," Zhurnal iuridicheskogo obshchestva (September 1894): 73-74.

      40. The medical expert's investigation could pertain to two of the three questions that made up the question of guilt in Russia: 1) whether a crime was committed; 2) whether this crime was the act of the defendant; and 3) whether the defendant should be imputed with responsibility for the crime (vmeneno v vinu). The forensic physician participated in the investigation of the first and third questions in particular (with the latter being the specific terrain of forensic psychiatry). While all of these questions were decided conclusively at the trial session, they were first subject to preliminary investigation. See L. E. Vladimirov, Uchenie ob ugolovnykh dokazatel'stvakh: Lichnyi sudeiskii osmotr i zakliucheniia ekspertov (Khar'kov, 1886), 62. For an examination of the Russian conception of "legal guilt" and the principles governing guilt determination in Russian jury trials after the 1864 judicial reforms, see Girish N. Bhat, "The Moralization of Guilt in Late Imperial Russian Trial by Jury: The Early Reform Era," Law and History Review 15 (1997): 77-113.

      41. Criminal cases were almost always cases in which the state was one of two parties to a suit; private citizens rarely acted as plaintiffs. On Peter I's introduction of the procuracy and its various supervisory functions under different reigns, see Sergei M. Kazantsev, "The Judicial Reform of 1864 and the Procuracy" in Reforming Justice, 44-60. With the abolition of the procuracy's diffuse supervisory function, the judicial reform transformed the role of the procurator, making him both a prosecutor and a liaison between the court (to which he was attached) and the central state administration.

      42. On the French system, see Harris, Murders and Madness, esp. 125-54; A. Adhemar Esmein, A History of Continental Criminal Procedure, with Special Reference to France, trans. John Simpson (Boston: Little, Brown, 1913), 528-69; Benjamin F. Martin, "The Courts, the Magistrature, and Promotions in Third Republic France, 1871-1914," American Historical Review 87 (1982): 977-1009; and James W. Garner, "Criminal Procedure in France," Yale Law Journal 25 (1916): 255-84. On Russian procedural rules, see Bhat, "Trial by Jury," esp. 54-58. On Russian defense lawyers, see Levin-Stankevich, "Transfer of Legal Technology," 228-34; and Wortman, Russian Legal Consciousness.

      43. See Esmein, History of Continental Criminal Procedure, 251-71 and 622-23.

      44. On the origin and meaning of this expression in Russian criminal law, see N. S. Tagantsev, Russkoe ugolovnoe pravo: Lektsii, 2d ed. (St. Petersburg, 1902). On this basic tenet of Roman-canonical theory in relation to continental and English systems of medical expertise, see Catherine Crawford, "The Emergence of English Forensic Medicine: Medical Evidence in Common Law Courts, 1730-1830" (Ph.D. diss., Oxford University, 1987), 163-68 and 145-202; and Crawford, "Legalizing Medicine: Early Modern Legal Systems and the Growth of Medico-Legal Knowledge," in Legal Medicine in History, 89-116.

      45. The law defined which types of physicians the investigator was to summon for forensic duties according to the physician's state-defined service title (city, district, or police physicians) rather than specialized experience or training. On the examination requirements for these service titles, see P. A. Gratsianov, "K voprosu ob uchastii zemskikh vrachei v sudebno-meditsinskoi ekspertize." Reprint from Russkii meditsinskii vestnik (St. Petersburg, 1899); and I. M. Gvozdev, "Neskol'ko slov o tak nazyvaemom predvaritel'nom sledstvii i spetsializatsii sudebnoi meditsiny," in Trudy piatogo s''ezda russkikh vrachei v pamiat' N. I. Pirogova, vol. 1 (St. Petersburg, 1894), 78-80. On state service-employment categories and corresponding social characteristics within the medical profession, see Frieden, Russian Physicians, 21-52 and 201-21. Critics challenged the state's legal definition of "forensic physician," and these arguments shaped and were shaped by the process of academic specialization within medicine at this time. While specialization issues infused Russian debates over the forensic-physician's legal role, they are not within the scope of this essay. On the development of the academic bases of forensic medicine in tsarist Russia, see V. F. Chervakov, E. E. Matova, and S. V. Shershavkin, 150 let kafedry sudebnoi meditsiny 1-ogo Moskovskogo ordena Lenina Meditsinskogo Instituta, 1804-1954 (Moscow: Medgiz, 1955); and A. K. Evropin, Istoricheskii ocherk kafedry sudebnoi meditsiny s toksikologieiu pri Imperatorskoi voenno-meditsinskoi akademii (St. Petersburg, 1898).

      46. Ust. ugol. sudoproiz., articles 315-322.

      47. Ibid., articles 325-334.

      48. Ibid., articles 336-352.

      49. Ibid., articles 350-352 and 353-355 respectively. Turn-of-the-century handbooks of forensic-medical legislation—written to aid forensic physicians through the ever changing thicket of legislation and directives—separated out these latter three psychiatric statutes and discussed them as a distinct topic under its own rubric, which often included different types of sexual crimes. Nevertheless, statutorily and procedurally psychiatric expertise remained a subgroup of forensic medicine more generally. See, for example, S. N. Ippolitov, Sbornik zakonopolozhenii o sudebno-meditsinskikh issledovaniiakh. Spravochnaia kniga dlia sudebnykh vrachei (St. Petersburg, 1910).

      50. Ust. ugol. sudoproiz., article 330.

      51. Ibid., article 325. As I argue in my larger research project, "Medicine, Law, and the State: The Development of Forensic Psychiatry in Late Imperial Russia" (forthcoming), these highly publicized polemics over the appropriate status and significance of forensic medicine contributed in large part to the development of the specialized concept of "expert," with its modern associations of professional authority, in late imperial Russia. Indeed, by 1905 the Russian term "expert" (ekspert) had come to replace the original legal term "knowledgeable people" (svedushchie liudi) in the forensic-medical statutes.

      52. "Sovremennoe znachenie sudebnoi meditsiny v iurisprudentsii," Zhurnal Ministerstva Iustitsii 23 (1865): 680.

      53. F. A. Patenko, "O reorganizatsii sudebno-meditsinskoi ekspertizy." Reprint from Meditsina: Gazeta dlia prakticheskikh vrachei (St. Petersburg, 1892), 2-3.

      54. A. Sokolov, "Sudebno-meditsinskaia ekspertiza: po tsirkuliarnym ukazam pravitel'stvuiushchego senata," Zhurnal grazhdanskogo i ugolovnogo prava no. 4 (1890): 132-33.

      55. See Polnoe sobranie zakonov, vol. 35 (St. Petersburg, 1860), nos. 35890-92. See also, John P. LeDonne, "Criminal Investigations before the Great Reforms," Russian History 1, no. 2 (1974): 101-18.

      56. See Esmein, History of Continental Criminal Procedure; and Harris, Murders and Madness, 125-38.

      57. Harris, Murders and Madness, 125.

      58. Ibid.; and Crawford, "The Emergence of English Forensic Medicine."

      59. A. F. Koni, "O zadachakh russkogo sudebno-meditsinskogo zakonodatel'stva," 73-81.

      60. USM, article 1744.

      61. Snigirev, "Ustav sudebnoi meditsiny," 4.

      62. This proposal was raised in discussions over the question of medical expertise at the Fifth Pirogov Congress of Russian Physicians, held at the end of 1893 in St. Petersburg. For a critical discussion of these proposals, see Godlevskii, "O sudebnoi ekspertize."

      63. Patenko, "O reorganizatsii sudebno-meditsinskoi ekspertizy," 2.

      64. E. F. Bellin, "Ocherk uslovii deiatel'nosti nashei sudebno-meditsinskoi ekspertizy; prichiny neudovletvoritel'nosti ee i mery k ustraneniiu ikh," Vestnik obshchestvennoi gigieny, sudebnoi i prakticheskoi meditsiny 2, no. 2 (1889): 10.

      65. The court itself consisted of a minimum of three "members" (chleny) while the court was in session, including the presiding judge. The judicial reform statutes also specified that the judicial investigator possessed official "member" status. Sudebnye ustavy, vol. 3, Uchrezhdenie sudebnykh ustanovlenii, articles 77-79, and 140.

      66. Contemporaries concurred that L. E. Vladimirov, professor of criminal law at Khar'kov University, sounded the first shot in the polemics over the procedural significance of medical expertise with his monograph, O znachenii vrachei-ekspertov v ugolovnom sudoproizvodstve (Khar'kov, 1870). On the different views expressed in the polemics between 1870 and the 1890s, see: K. K. Arsen'ev, Sudebnoe sledstvie (St. Petersburg, 1871); L. E. Vladimirov, Uchenie ob ugolovnykh dokazatel'stvakh; V. Ia. Fuks, "Ugolovno-sudebnaia ekspertiza," Zhurnal grazhdanskogo i ugolovnogo prava nos. 4-5 (1887): 15-54, 1-39; A. F. Koni, "O polozhenii vracha-eksperta na sude, ego deiatel'nost' i otnoshenie k sudu," Zhurnal iuridicheskogo obshchestva pri Imperatorskom S.-Peterburgskom Universitete no. 2, chron. (1894): 148-54; F. V. Vislotskii, O dostoinstve sudebno-meditsinskoi ekspertizy v ugolovnom sudoproizvodstve (Warsaw, 1872); I. I. Neiding, "O neobkhodimosti tochnogo raz''iasneniia polozheniia vrachei-ekspertov v razlichnykh fazakh sudebnogo sledstviia," Trudy vtorogo s''ezda russkikh vrachei v Moskve, vol. 2 (Moscow, 1887), 27-31. For a concise review essay and subtle account of the issues involved, see V. Ia. Fuks, "K voprosu o znachenii ekspertizy v ugolovnom protsesse," Iuridicheskii vestnik no. 9 (1887): 118-36.

      67. Although the law did not give cassation decisions binding force in analogous cases, they acquired such force in practice. As historian of Russian law Levin-Stankevich has explained, hundreds of monographs and articles that sought to explain particular questions of law—most directed toward the legal community but some written for the layman as well—made little distinction between statutory law and Court of Cassation decisions. See Levin-Stankevich, "Cassation, Judicial Interpretation and the Development of Civil and Criminal Law in Russia." One finds the same in writings about forensic medical procedure. It was typical in articles exploring the status and significance of forensic medical expertise for authors to survey the statutory laws and then analyze cassation decisions pertaining to forensic medical procedure. For one of many such examples, see Godlevskii, "O sudebnoi ekspertize," 77.

      68. Resheniia ugolovnogo kassatsionnogo departamenta Pravitel'stvuiushchego Senata za 1875 god (Ekaterinoslav, 1911), no. 199.

      69. Respectively, Resh. ugol. kass. depart. Prav. Sen. 1868, no. 944; 1873, no. 713; 1874, no. 47. In addition, the relationship between the investigator and the physician was somewhat clarified; for example, the Criminal Cassation Department in 1875 ruled that the investigator did not have the substantive right to impose disciplinary penalties on the forensic physician, since the physician was subject to the procurator, rather than the investigator.

      70. As, for instance, the General-German Statute of Criminal Procedure, article 80.

      71. Vladimirov, Uchenie ob ugolovnykh dokazatel'stvakh, 18-19.

      72. On the tension between these two models of governance (custodial-administrative [Polizeistaat] vs. abstract legal principle [Rechtsstaat]), see Andrzej Walicki, Legal Philosophies of Russian Liberalism (New York: Oxford University Press, 1987), introduction.

      73. N. I. Khreptovich, "Po povody stat'i 'o sudebno-meditsinskoi ekspertize v Rossii' v no. 3 'Arkhiva sudebn. medits.' 1867 g.," Arkhiv sudebnoi meditsiny no. 3 (1868): 1.

      74. Forensic psychiatrists articulated this position in various forums, including the 1893 Joint Commission of the St. Petersburg Society of Psychiatrists and Juridical Society, which was devoted to "the question of the organization of the psychiatric study of the criminal class." See Doklad soedinennoi kommisii.

      75. Significantly, D. A. Dril' was a regular participant in the international congresses of criminal anthropology held in European capitals between 1885 and 1906 and one of Russia's more outspoken supporters of the overtly deterministic views of the Italian school of criminal anthropology. The growing European emphasis on the hereditary causation of mental illness and antisocial behavior took its most extreme and controversial form in the works of Italian forensic psychiatrist and founder of "criminal anthropology," Cesare Lombroso. Particularly influential in the 1880s and 1890s, Lombroso's system maintained that the born criminal (like the epileptic or insane) was an atavism, a throwback to an earlier stage of development. On Dril''s biological perspective, see D. A. Dril', "Ocherk razvitiia ucheniia novoi pozitivnoi shkoly ugolovnogo prava," Iuridicheskii vestnik nos. 10-11 (1883): 171-232, 355-413; and "Antropologicheskaia shkola i ee kritiki," Iuridicheskii vestnik no. 12 (1890): 579-99. On the political cast of those who supported this school, see S. S. Ostroumov, Prestupnost' i ee prichiny v dorevolutsionnoi Rossii (Moscow: Moskovskii Universitet, 1960).

      76. "Voprosy vrachebnoi ekspertizy," 404.

      77. Ibid, emphasis in original. Nineteenth-century Russian medical terminology maintains a distinction between insanity one is born with (bezumie) and insanity that develops later in life (sumasshestvie). The legal formulation of nevmeniaemost' (strictly, the lack of the capacity to be held accountable) first appeared in Russian law in the 1845 criminal code (Ulozhenie o nakazaniiakh). This formulation, with regard to mental competence, extended across articles 103, 104, and 105 in the 1857 edition (renumbered 95, 96, and 97 in the 1866 and 1885 editions). A revised formulation appeared as article 39 of the Ugolovnoe Ulozhenie in 1895 (officially approved in 1903, though never enacted). Article 39 stated that an offender was not legally responsible if he was unable to control his actions as a consequence of a pathological condition or mental deficiency. On the original formulation of legal responsibility as stated in Ulozhenie o nakazaniiakh (1857), see G. V. Morozov, D. R. Lunts, and N. I. Felinskaia, Osnovnye etapy razvitiia otechestvennoi sudebnoi psikhiatrii (Moscow: Meditsina, 1976).

      78. "Voprosy vrachebnoi ekspertizy," 404.

      79. Ibid., 409-10.

      80. E. M. Barantsevich, Sudebno-vrachebnaia ekspertiza v Rossii. Sudebno-vrachebnyi i bytovoi ocherk (zakon i praktika) (Moscow, 1898).

      81. See Forbes, Surgeons at the Bailey; Mohr, Doctors and the Law; and Smith, Trial by Medicine.

      82. See Goldstein, Console and Classify; Harris, Murders and Madness; and Nye, Crime, Madness and Politics.

      83. On the growing influence of and debates over biological theories of deviance in late nineteenth-century Europe, see Nye, Crime, Madness and Politics; Harris, Murders and Madness; Daniel Pick, Faces of Degeneration: A European Disorder, 1848-1918 (Cambridge: Cambridge University Press, 1989); and Ian R. Dowbiggin, Inheriting Madness: Professionalization and Psychiatric Knowledge in Nineteenth-Century France (Berkeley: University of California Press, 1991).

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