the Holy Scriptures. Yes, it is a visible truth that doctors, as well as lawyers and ministers of the Gospel, do disagree. It would be marvelous and deplorable if they did not. If there were no disagreement, investigation and experiment would cease; and science, literature, and art would sink to a dead level of stupidity and laziness. If scholars and learned men had come to a condition of unanimous agreement a hundred years ago, we should have had none of the marvelous discoveries and inventions, none of the magnificent victories and triumphs in medicine and surgery, that have distinguished and illuminated the closing years of the nineteenth century.

It will be observed that the faults and imperfections of the present system and methods of procedure in the matter of scientific testimony are not magnified to my vision. For whatever is wrong and capable of redress, for so much of the evil of the present system as is not imaginary, what and where is the remedy? Without any progress toward a satisfactory result, search for it has been prosecuted for years and years.

(1) In Germany, and perhaps elsewhere on the European continent, the following method has been established. For certain matters and lines of business (I have not ascertained what these are) permanent experts are appointed by the State. They have no official title nor regular salary, and their payment barely compensates them for loss of time. But in most cases the expert is appointed by the particular judge sitting in the case. . . There have been in this country many advocates of the German method. Professor John Ordronaux is one of many who are in favor of having expert witnesses appointed by the court, and excluding all others. He thinks "the expert should be regarded as an 'amicus curiæ,' whose opinion should be a conclusive judgment." That condition would seem to destroy his function as a witness, leaving him to instruct the judge as to what is the fact, and the judge to instruct the jury accordingly, a theory and practice obnoxious in the extreme, and subversive of the rule that the jury alone shall determine all questions of fact. . . .

(2) Judge Washburn, while in favor of continuing the present method of summoning experts, thought the presiding judge should have power himself, if in his judgment the interests of justice would be promoted thereby, to summon experts of his own choice, who should review the whole testimony and evidence of the experts called by the litigants. The proposition strikes me favorably. . . .

(3) It has been proposed that "a certain number of scientific men should, in certain circumstances, sit upon juries and hear the evidence, as ordinary juries do at present." . . . With reference to a jury or other tribunal composed wholly or in part of experts, one of the most eminent of English jurists, the late Sir James Fitzjames Stephen, discovered so many "difficulties of detail and practice" in the adoption of any such plan, that it seemed, in his judgment, to be most injurious. It was his opinion (in which I fully concur) that, "given uprightness, patience, and such intelligence as most educated members of society possess, a jury constituted as our juries are forms the very best tribunal which could be devised for the trial of complicated questions of fact, even if those questions involve delicate scientific considerations." Ordinary men are quite capable of forming a trustworthy conclusion. I

say trustworthy; for that is all that can be expected or required. Comparatively few subjects of expert testimony are capable of absolute demonstration; and the judgment of a jury or an expert is ordinarily no more certain than that the conclusion, in a civil case, is probably correct, and, in a criminal case, that the accused is probably innocent, or that his guilt is established beyond a reasonable doubt.

Finally, my belief is, that the supposed evils of the present system are much exaggerated, and to a great extent imaginary; that they are not to be cured by any remedy that has been or seems likely to be devised, and that, on the whole, it is best to "let well enough alone."

TITLE II: THE ELEMENTS OF THE TESTIMONIAL
PROCESS ITSELF, AS AFFECTING
WORTHINESS OF TESTIMONY

THE

TRUST

SUBTITLE A: PERCEPTION (OBSERVATION, KNOWLEDGE)

234. JOHN H. WIGMORE. Principles of Judicial Proof. (1913).1 1. Perception, Opportunity to Perceive, and Knowledge; their Difference and their Practical Sameness. It is obviously impossible to speak with accuracy of a witness's "knowledge" as that which the principles of testimony require. If the law received as absolute knowledge what he had to offer, then only one witness would be needed on any one matter; for the fact asserted would be demonstrated. When a thing is known to be, it is; and that would be the end of inquiry. A witness cannot be assumed beforehand, by the law, to know things; the most it can assume is that he thinks he knows. The law assumes that the matter is in truth of some particular complexion, but also realizes that to determine what its real complexion is the tribunal may have to listen to various persons; the statements of some of these it will reject, and of others it will accept. But from the persons to whom the tribunal will listen the law will attempt to require some qualification which will make them worth listening to. It will not presume to determine beforehand which witness is correct, i.e. which one really knows, but it will ask that each one offered shall be one prima facie likely to know, in short, shall have had an opportunity of perceiving or observing what was or what happened and shall have directed his attention or observation to the matter. This is as far as the law can go. But the law can at least go that far. Amidst the multitude of persons who have formed impressions and think that they "know" something about the subject in hand, practical experience shows that many or most have formed their beliefs without any basis of perception safe enough to be worth considering in a court of justice. A belief-basis adequate enough for the casual affairs of life may be too slender for settling the facts of rights and wrongs in court. For instance, a person may have a belief that the local post office opens at 7 A.M. and closes at 6 P.M.; but on careful selfscrutiny before acting on that belief, the person may acknowledge that he has no tangible basis at all for it. Hence, a Court may well insist on requiring some minimum of adequate basis for belief; or at least may insist on ventilating thoroughly whatever basis there is, so that the weight of it may be gauged.

1[Adapted from the same author's Treatise on Evidence. (1905. Vol. I, §§ 650-654.)]

We are here concerned only with the latter process, i.e. with forcing into the open the data of witness's opportunities for having perceived with his own senses the event or act in question, and the extent of his actual direction of attention to it. A witness may have stated glibly that he "knows something about it, and that he has been so placed as to have an opportunity of perceiving, and may have smoothly stated what he saw or heard; and yet, on closer inquiry, facts may be disclosed which show that he could not well have seen or heard, but acquired his impressions in some less adequate way. Such data will assist much in valuing his supposed perceptions.

This process of evoking into the open the witness's basis of perception is one of the commonest in trials. It puts in sharp contrast an Impression, guess, or notion, lacking in a basis of sense perception, with a Knowledge, or perception based on direct attention of the senses. The psychologists begin with the latter stage, assuming without question that it exists, and proceeding to point out the elements of fallibility that still inhere in it. But in the practical conduct of trials, its existence cannot be assumed; for so many persons lacking it thrust themselves (or are thrust) forward as witnesses that a first business of the courts must be, if not to eliminate them, at least to ascertain their actual qualifications, so as to value their testimony accordingly.

Parnell Commission's Proceedings (1888. 36th day, Times' Rep., pt. 10, p. 18). [The Irish Land League and its leaders being charged with complicity in certain crimes; particularly in the Phoenix Park assassination of 1882, certain of the known criminals testified that their body, the Invincibles, had received assistance money from the League; it had turned out, on cross-examining one of them, that his testimony to the receipt of this money from the League officers was not based on his own knowledge at all, but merely on what he had heard from others; another of these persons was now asked on direct examination as follows:]

Sir H. James: "Tell me of your own knowledge whether you know of his receiving any money from the Land League."

66

Sir C. Russell: My Lords, I would ask my learned friend to be particular as to that question of his own knowledge' after the experience we had of Delaney's evidence. 'Did he see any one pay him?' is the proper form of question."

Sir H. James: I think not."

Sir C. Russell: "With great deference, my Lords, it is. We had a deliberate statement the other day in answer to a similar question put to a witness, Did you know this?' and 'Did you know that?' and, afterwards in cross-examination, it turned out that he did not know it of his own knowledge, but it was what had been told him. I want to guard against a repetition of that. The proper form of question as I submit is, 'Did he see any money paid?'

Sir H. James (to the witness): "You understand what I mean

know this of your own knowledge?"

Sir C. Russell: “I am objecting to the form of the question."
President Hannen: "It is a very usual form of question."

do you

Sir C. Russell: "I respectfully say, in view of the reasons I have given, what the proper question is, 'Did he see any money paid?''

President Hannen: "I shall not interfere with the discretion of counsel in

asking a question in a manner which is quite usual."

Sir C. Russell: "I have pointed out the danger the great danger ting the question in the form in which my learned friend is putting it." President Hannen: "Precisely so; and you have also shown where the safeguard lies, namely, in cross-examination."

of put

2. Distinction between Experience and Knowledge. Observation or Perception of the matters to be testified to is, then, an essential conception in the qualifications of every witness without exception. By Observation is meant that direction of attention which is the source of impressions. The distinction between Experience and Observation is that the former concerns the mental power or capacity to acquire knowledge on the subject of testimony, while the latter concerns the actual exercise of the faculties upon the subject of testimony.

It is true that the distinction between Experience and Observation is sometimes lost sight of in the practical tests applicable to certain subjects of testimony. For example, when a Court adopts the rule of thumb that farmers in the vicinity of a certain piece of land may testify to its value, it is ruling upon both these subjects; it is ruling that farmers are persons of sufficient experiential qualifications, and it is also ruling that persons in the vicinity have sufficient observation or knowledge of the general class of values in question and of the piece of land in question. Again, when a Court rules that a bank cashier who has handled the kind of notes alleged to be counterfeit may testify to the genuineness of the one in question, it is ruling that bank cashiers are experientially qualified to form an opinion on the matter, and it is also ruling that the handling of the notes sufficiently insures observation or knowledge of the general type of note in question. In these instances, as well as in others, the rule of thumb does not distinguish the two principles. But the two elements must always exist, however obscured.

3. Knowledge may rest upon a Hypothetical Basis. The direction of attention which constitutes the source of the knowledge will usually be made upon matters as they present themselves to the senses out of court. But the observation may also be directed to the same matter hypothetically placed before the witness in court. Thus, a physician may examine a patient at his home and observe certain symptoms, whence he reaches the conclusion that a fever exists; but the same symptoms may be stated to him by counsel in court, and he may then reach the same conclusion, and it will be receivable, except that it will rest upon the hypothesis that the symptoms stated to him actually existed. Here the direction of attention. to the symptoms is that observation which the law requires before receiving his conclusion as to the nature of the disease; but in the one case the alleged symptoms are learned by his own senses and rest on his own testimonial credit, while in the other case they rest on the hypothesis that other persons will testify them to be true.

4. Knowledge often a Double Element, including (1) a Class of Things, and (2) the Thing to be Classed. In certain subjects the observation must be of a double sort. For example, a witness to the value of a horse should be acquainted with the value standards for different classes of horses, and must also be acquainted with the particular horse to be valued. A witness to the genuineness of handwriting should be acquainted with the type or standard of the handwriting of the alleged writer, and must also see the disputed writing which he is to say does or does not belong to that type. A witness to the identity of a person, a voice, or anything else, ought to be familiar with the person or voice or other thing as to which the identity is asserted, and ought also to see or hear or otherwise perceive the thing to be identified