Scientific evidence received with too little and stand on a much higher footing than either ordinary or scientific witnesses among us. Yet even there it is a maxim "Dictum expertorum nunquam transit in rem judicatam (x)." Bonnier, in his Traité des Preuves, after quoting the 64th Novel, which abundantly shews that the malpractices of which we have been speaking were well understood at ancient Rome, sarcastically adds, "On voit que les complaisances de l'expertise ne datent pas de nos jours (y)." Our own law, in its desire to vindicate the unquestionably sound principle that judicial and inquisitorial functions ought to be kept distinct, appears to have scarcely armed its courts with sufficient powers to compel the production of evidence -the instances in which they proceed ex officio to obtain it are few; and this case of experts seems one in which such a power might be vested in them with advantage, concurrently of course with the right of litigant parties to produce skilled witnesses of their own. § 498. So far as medical evidence is concerned, medical jurists complain that there is too little discrimination discrimination. exercised in receiving all who are called doctors as witnesses. "In England," says the able authority already quoted (z), “not only physicians, surgeons, and apothecaries, beyond whom it should not be extended, but hospital dressers, students, and quacks, have been permitted to act as medical witnesses. We could point out a case of poisoning,' say the editors of the Edinburgh Medical and Surgical Journal, where the most essential part of the evidence depended on the testimony of a quack alone, and it was admitted.' But, to an (r) Bonnier, Traité des Preuves, § 74. (y) Id. § 68. In another place he very forcibly observes, "L'expertise n'est qu'un verre qui grossit les objets; et c'est au juge, qui a la faculté de s'en swer these authors in their own language, the remedy they prescribe is worse than the disease. Must the judge, before receiving the testimony of a man who makes profession of the healing art, institute a preliminary inquiry as to whether he comes within the definition of a "quack?"-one of the most uncertain words in the language, and the correct application of which to particular individuals must ever be, to a certain extent, matter of opinion. Besides, it would be altogether at variance with the free spirit of our laws, to place the lives and liberties of all persons accused of the gravest offences in the hands of a privileged class, by prohibiting them from availing themselves of the testimony of others who have studied and practised the subject. Still it must be conceded that our practice is much too loose in this respect-that our judges and jurymen do not when medical, and indeed other scientific, witnesses are offered, inquire sufficiently into the causa scientiæ,—the means which they have had of forming a judgment. To say nothing of those palpable cases where the course of study has been so short, or experience so limited, that the judge ought to reject the witness altogether; or those where, though the evidence must be received, it is clear little confidence ought to be reposed on the opinion given, even distinguished men in one branch of a science or profession have often but a superficial knowledge of its other branches. The most able physician or surgeon may know little of the mode of detecting poisons, or other intricate branches of medical jurisprudence; so that a chemist or physiologist, immeasurably his inferior in every other respect, might prove a much more valuable witness in a case where that sort of knowledge is required (a). (a) The celebrated John Hunter, the great anatomist and physiologist, who was examined as a witness in the important case of Donellan, indicted for having poisoned his brother-in-law, used founded on facts the tribunal. 2. Opinion § 499. 2. Another class of exceptions is to be found in which cannot be cases where the judgment or opinion of a witness, on brought before some matter material to be considered by the tribunal, is formed on facts which from their nature it would be impossible to bring before it. Thus the identification by a witness of a person or thing is necessarily an exercise of his judgment. "In the identification of person," says Parke, B. (b), "you compare in your mind the man you have seen with the man you see at the trial. The same rule belongs to every species of identification." And on the same occasion Alderson, B., said, “Generally, wherever there is such a coincidence in admitted facts as makes it more reasonable to conclude that a certain subject-matter is one thing rather than another, that coincidence may be laid before the jury to guide their judgment in deciding on the probability of that fact (c).” to express his regret publicly in his (b) Fryer v. Gathercole, 13 Jur. 542. (c) The resemblance between individuals is often very close. A well-known man of fashion once narrowly escaped conviction for a highway robbery, from his extraordinary resemblance to a notorious highwayman of the day (Beck's Med. Jur. 408, 7th Ed.); and Sir Thomas Davenport, an eminent barrister, swore positively to the persons of two men, whom he charged with robbing him and his lady in the open daylight. A clear alibi was, how ever proved, and the real robbers being afterwards taken into custody with the stolen property upon them, Sir Thomas, on seeing them, at once acknowledged that he had been mistaken (per MacNally, arguendo, in R. v. Byrne, 28 Ho. St. Tr. 819). For other cases of mistaken identity of persons, see Wills, Circ. Evid. 90, et seq. 3rd Ed.; Beck's Med. Jurisp. 404, et seq. 7th Ed. ; the case of James Crow, Theor. of Pres. Proof, Append. Case 4; and that of Male, 3 Benth. Jud. Evid. 255. It is perhaps superfluous to remark that mistakes may be made in the identification of things. A good instance, taken from Burnett's Crim. Law of Scotland, p. 558, will be found in 19 Ho. St. Tr. 494 (note). So, the state of an unproducible portion of real evidence; as, for instance, the appearance of a building, or of a public document which the law will not allow to be brought from its repository, may be explained by a term expressing a complex idea; e. g. that it looked old, decayed, or fresh, was in good or bad condition, &c. (d) So also may the emotions or feelings of a party whose psychological condition is in question-thus a witness may state as to whether on a certain occasion he looked pleased, excited, confused, agitated, frightened, or the like (e). To this head also belong the proof of handwriting ex visu scriptionis and ex scriptis olim visis (f). And it is on this principle that testimony to character is received; as where a witness deposes to the good or bad character of a party on trial on a criminal charge, or states his conviction that from the general character of another witness he ought not to be believed on his oath (g). In all cases, of course, the grounds on which the judgment of the witness is formed may be inquired into on cross-examination. (d) Leighton v. Leighton, 1 Str. 240. (e) Supra, ch. 1, sect. 3, sub sect. 3, § 449. (f) Part 2, ch. 3, sect. 2. CHAPTER VI. SELF-REGARDING EVIDENCE. Self-regarding evidence. Is either selfserving or selfdisserving. General rule with respect to self-regarding evidence. SECTION I. SELF-REGARDING EVIDENCE IN GENERAL. § 500. In the preceding chapters we have shewn the general nature of those rules by which evidence is rejected for want either of originality or of proximity. The present will be devoted to that species of evidence where evidence for or against a party is afforded by the language, express or implied, of himself, or of those whom he represents, or of those who represent him. All such we propose to designate by the expression "self-regarding evidence." When in favour of the party supplying it, the evidence may be said to be self-serving; when otherwise, self-disserving (a). § 501. The rule of law with respect to self-regarding evidence is, that when in the self-serving form it is not in general receivable; but that in the self-disserving form it is, with few exceptions, receivable, and is usually considered proof of a very satisfactory kind (b). For, although, when viewed independent of jurisprudence, it are (a) These three terms taken from Benth. Jud. Ev. vol. 5, p. 204. The term "self-regarding" and its two modificacations are also applicable to statements of a like nature made by witnesses. (b) Gilb. Evid. 119, 4th Ed.; Finch, Law, 37; Trials per Pais, 381. See acc. Mascard. de Prob. Quæst. 7, N. 10. |