There are such things as forgeries, and forgers imitate peculiarities. Handwriting is seldom to be believed, even when it speaks the truth. There are other witnesses, doubtless, slightly varying in their peculiarities of disposition and temper, but these the reader will easily note from his own. observation, and I doubt not will find, on examination, that most of them may be included within the classes enumerated. But of whatever types they may be, and however much they may differ from one another, there is one weakness which runs through them all, and that is ranity. No human being is exempt from its influence; and the only difference between one man and another in this respect is as to the object of his vanity and the effect of it upon the other attributes of his nature. One man's vanity may impel him to aspire to a coronet, another's only to wear his hat a little on one side and to put his thumbs in the armholes of his waistcoat. 225. DONELLAN'S CASE. 226. LUETGERT'S CASE. [Printed post, as No. 379.] [Printed post, as No. 387.] 227. HILLMON v. INSURANCE CO. [Printed post, as No. 389.] 228. THROCKMORTON v. HOLT. [Printed post, as No. 390.] 229. FRANK S. RICE. The Medical Expert as a Witness. (Green Bag. 1898. Vol. X, 464.) Of all the cant that's canted in this canting world, expert medical cant is the most pernicious; and of all species of evidence offered in a court of justice, none is so thatched with suspicion or further removed from every suggestion of usefulness as is the evidence of a medical expert. Indeed these glib-tongued pundits have so effectually discountenanced themselves in juridical estimation that (to adopt the vigorous language of Lord Chancellor CAMPBELL in the Tracy Peerage Case, 10 Clark & F. 154): "They come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence." . . . Mr. Wharton pilloried the whole guild in one of his most admired passages, which is still quoted with approbation: "Few specialties are so small as not to be torn by factions; and often, the smaller the specialty, the bitterer and more inflaming and distorting are the animosities by which these factions are possessed. Peculiarly is this the case in matters. psychological, in which there is no hypothesis so monstrous that an expert cannot be found to swear to it on the stand, and to defend it with vehemence when off the stand. 'Nihil tam absurde dici potest, quod non dictatur ab aliquo philosophorum.' In the second place, the retaining of experts by a fee proportioned to the importance of their testimony, is now, in cases in which they are required, as customary as in the retaining of lawyers. No court would take as authority the sworn statement of law given by counsel retained on a particular side, for the reason that the most high-minded men are so swayed by an employment of this kind, as to lose the power of impartial judgment; and so intense is their conviction that there is no civilized community in which the reception of a present from a suitor does not only disqualify but disgrace a judge. Hence it is that, apart from the partisan temper more or less common to experts, their utterances, now that they have as a class become the retained agents of parties, have lost all judicial authority, and are entitled only to the weight which a sound and cautious criticism would award to the testimony itself. In adjusting this criticism, a large allowance must be made for the bias necessarily belonging to men retained to advocate a cause, who speak not as to fact, but as to opinion; and who are selected on all moot questions, either from the prior advocacy of, or from their readiness to adopt, the opinion to be proved." (Wharton, "Criminal Evidence," § 420). . . . Let us consider briefly the usual environment of the average physician before he becomes deified as an expert. From the time he leaves college, his life is spent among those who are hopelessly ignorant of materia medica or of clinical procedure. Imperceptibly there fastens upon him, by insidious and subterraneous approaches, an exalted opinion of his own accomplishments, and a corresponding contempt for antagonistic views. He is a monomaniac on the subject of his own importance. The lawyer is emancipated in great measure from the effects of such an existence, as his postulates are constantly the subject of criticism and demur, his position and theories are controverted and denied, and by constant contact and attrition with other superior minds, he is admonished to place salutary limitations upon his own conceits, while he absorbs a wholesome respect for the opinion of his legal fraters. Not so with the physician. At rare intervals, usually at the instigation of an admirer, he is called into consultation on a critical case. There is no occasion in such an event for controversy. His presence would not be requested if there were the least danger of such a calamity. Professional etiquette requires him to sustain his colleague or copractitioner, and they meet in that spirit of camaraderie which makes disagreement impossible. . . . The consequence of this training, persisted in for a series of years without the least deviation, enables the serene Olympian to mount the witness stand with the perfect composure and touch-me-not-ish-ness that belongs to the elect Brahminical caste. He answers the interrogatories with a chilling and glacial hauteur that shows the impervious nature of his conceit and the braying folly of any attempt to remove it. Long years of hectoring over hypochondriacs, valetudinarians, and hospital nurses has imparted an aspect of infallibility to his "ipse dixit," that nothing but the most dropsical temerity would dispute. He is looked upon as the Gog and Magog of Hunnish desolation to any theorizing that contradicts that sacramental thing known as his “opinion." . . . If there are contending factions in his own specialty, our M.D. relapses into dogmatism, and we are apt to find a touch of irony now and then when he refers to the "advanced scholarship of the profession," and the "demonstrations regarding the development of the microbe." Clotted nonsense of this type can never become the adjunct of intelligent exposition - it only leads to bewilder and dazzles to betray. Thus far we have lingered in our exposé of the medical expert upon mere deficiencies in good taste and those debonair attitudes of mind that make man an agreeable companion we have regarded nothing that menaces his integrity, or suggests more than ordinary caution in accepting his statements. Unfortunately, however, there is a distinctively knavish element in his testimony that assumes many disguises if plausibly presented and adroitly maintained. . . . It is indisputable that the principal abuse ingrafted upon modern expert evidence arises directly from the enormous fees, so called, that are paid to these pampered witnesses. The ordinary subpœna is sufficient to bring into any court the multimillionaires of the country the very Titans of our industrial enterprises, the men, in short, that have made America. But to secure the invaluable testimony of the medical "expert" resort is had to methods perilously close to bribery. Where is the distinction, in effect, between paying a witness an exorbitant sum of money for his testimony, under the flimsy guise of a "fee," or openly bribing him to say the same thing? Is it not morally certain that all his sympathies, prejudices, and predilections are enlisted upon the side that solicits his patronage and pays royally for it? And is he not in a more compromised position, if possible, when that fee or payment is contingent upon the success of the party calling him? (See Pollak v. Gregory, 9 Bosw., N. Y., 116). If not bribery, it has everything bad about it except bribery. The foregoing views have been in part suggested by the monumental exhibit of expert imbecility known as the Luetgert case [post, No. 387]. Of all the ghastly travesties upon common justice and common sense that have disgraced these closing years of the nineteenth century, that trial will probably stand as "primus inter pares." The demoniacal efforts of the experts to contradict each other and to prove some rival school of anatomy to be the mere nursing mother of a hoard of fakirs resulted, as might have been expected, in the total eclipse of the last faint struggling ray of intelligence that the jury may be supposed to have possessed. . . . Luetgert is breaking down under a sentence of life imprisonment rendered on the theory that his wife's bones were found in a sausage vat, and yet some of the most eminent osteologists of the age vehemently insist that the bones in question belonged to a hog. 230. ALBERT S. OSBORN. Expert Testimony from the Standpoint of the Witness. (Albany Law Journal. 1905. Vol. LXVII, No. 11.) It is quite natural that competent expert witnesses who are able to testify to the truth, and only the truth, should feel that the great reform needed is the adoption or the perfecting of procedure that will make it easier for honest and competent men to assist in showing the facts in a court of law and more difficult and embarrassing for liars and incompetents to assist in concealing and distorting the truth. Some reformers attempt to bring about improvement, not by improving the method, but by wholesale denunciation of both classes of witnesses, good and bad. Nothing but harm comes from such a practice. . . . No phase of expert testimony has been more misunderstood, misrepresented, and abused than testimony regarding handwriting and the numerous questions arising in relation to disputed documents. . . . The usual practice in the preparation of a case involving a questioned writing is easily described. In a large majority of such inquiries the facts are clearly in favor of one of the parties. The attorney on the right side seeks out and presents his case to those really expert specialists who are known to be competent and honest, and, as his contention is in harmony with the facts, such witnesses are secured. Does the opposing party abandon the case when he cannot get the best witnesses? Not by any means, but promptly proceeds to get what he can, which may be the worst. Those witnesses are industriously sought out whose opinions are favorable, and often they are those who through incompetency may easily be mistaken, or those witnesses are deliberately sought for whose services are known to be available on any case, and then both sides prepare for trial, one side endeavoring to show the truth, the other attempting to distort or hide the fact and thus defeat the ends of justice. The case is taken into court and presented to a jury, and if the expert testimony, given it may be by an equal number of witnesses, is at the end summed up by "counting the witnesses," as unfortunately is sometimes done, such procedure certainly does not tend to promote the ends of justice. case The testimony of a competent handwriting expert witness in a good which is simply an argument under oath; that is, an opinion with reasons cannot be nullified and made ineffective by liars and incompetents if the matter is considered and presented to a jury in the clear, judicial manner shown in the opinion quoted below. Such a sane, commonsense discussion of this important question should form a part of an important decision on this question by the highest court of every State. This opinion says: "Much has been said and written concerning the value of expert evidence, and there is a disposition to belittle the utility of evidence of this character. . . . It is urged that we find as many experts testifying upon one side as upon the other. That may be true, and it is also true that we will find as many lay witnesses upon each side in litigated cases giving different versions concerning a fact or circumstance. But this does not signify that the evidence of those witnesses must be disregarded because they disagree. Nor is it important specially which side has the greater number of expert or lay witnesses sworn in his behalf. It is the nature or character of the testimony given by the witness which is important. In the case of expert witnesses their opinions are valuable only in so far as they point out. satisfactory reasons for the ultimate conclusion of the witness. If the witness simply testifies that he believes the signature genuine or not genuine, as the case may be, and gives no reason for reaching his conclusion, his opinion is valueless and the court will not consider it. If he gives reasons for his opinion, then it is the duty of the court to examine into and analyze those reasons and determine the correctness or incorrectness of the opinion and not simply consider the conclusion of the witness alone." (Matter of Burtis, 43 N. Y. Miscel. Reports.) When a question of this character is considered and discussed in this sensible manner and thus presented to an intelligent jury, and the party in the right has prepared his case in the proper manner, justice will be done in a very large majority of cases, no matter how many mistaken or corrupt witnesses have sworn on the wrong side. As is said, "the nature or character of the testimony given" is the important thing. There is much discussion of the "disagreement" of expert witnesses that does not seem to consider that one side is in the right. What the competent witness who attempts to tell the truth objects to in criticisms of experts or expert testimony is generalizing that is made to apply to a specific case where it really does not apply. It is like generalizing on any question. The man who agrees with the much-criticized Roycroft sage when he says that lawyers have two objects in life, grand larceny and petty larceny, is one who takes it for granted that a man steals when he has an opportunity; and the man who says that there are no honest witnesses who are paid to investigate a question, prepare proper illustrations, and testify in court, is of the same pessimistic class. There still are honest lawyers and honest specialists who testify in court, and what they object to, lawyers as well as specialists, is that procedure, that prejudice, and that lack of information that does not attempt to discriminate, but puts all in one class. . . . The prime requirement in any reform is that procedure that will assist in every way possible in separating the true from the false, the competent from the incompetent. It is impracticable to brand liars and incompetents, or keep them out of court rooms; but it would be possible to protect competent men and recognize in an official way those witnesses who are worthy and qualified to be heard on a subject requiring expert testimony, those, in short, who really are experts. This is a reform that is practical, constitutional, and would undoubtedly be effective, and could be put into immediate use. The problem has been solved in England in this practical manner by the selection of certain men or a certain man of proved efficiency to act for the state in all such inquiries. This practice does not exclude other witnesses, and the "man who kept the cows" may still come forward and swear that black is white, and, therefore, this procedure would not take away the right under the Constitution that an accused man has of calling his own witnesses. Such an official designation of really expert witnesses would at once correct many of the faults and abuses of this phase of legal procedure and would still permit the fullest cross-examination on the question involved. No procedure should be adopted that directly or indirectly limits proper cross-examination. This official recognition would assist in classifying witnesses as to their competency, it would at least in a measure relieve witnesses of the charge of improper bias and partially protect them from insult, and it would enable lawyers in such investigations before trial, to get at once the best advice and assistance available. 231. WILLIAM L. FOSTER. Expert Testimony. (Harvard Law Review. 1897. XI, 169). . . It will be observed that the most frequent and most serious complaint concerning expert testimony is the want of agreement upon the same subject and in the same case, among equally learned men, rendering their testimony (it is said) uncertain, confusing, and bewildering to the extent that it is unreliable and of little value. And yet I doubt if an intelligent, thoughtful, and candid man can be found, who will not admit that, notwithstanding all its faults and imperfections, it would be impossible to get along without it. It is certainly true that there are and always will be differences of opinion among experts of the highest character, "rarely in regard to well-established facts, but often in regard to probable inferences from facts; whilst entire agreement in matters of theory and speculation would be marvelous." But concerning this alleged misfortune, it seems hardly becoming for the legal profession to indulge in severe criticism, since there is no profession so strongly characterized by differences of opinion on every subject, -lawyers as well as judges constantly disagreeing, and the latter not unfrequently overruling one another's decisions, unless it be the clerical profession, the members of which, it may have been observed, are not entirely unanimous in their interpretations of |