CHAPTER V.
OF THE PRIVILEGES AND DUTIES OF PHYSICIANS AND SURGEONS WHEN SUMMONED AS EXPERT WITNESSES IN COURTS OF JUSTICE.[180]
Introductory—Distinction Between Expert Witnesses and Other Witnesses.—One of the most important positions that a medical man is called upon to assume by virtue of his professional character, is the position of expert witness. Most writers on medical jurisprudence confine themselves, in the discussion of this subject, to presenting the medico-legal rules which appertain to this position, and concede its high importance. Before defining what is meant by the term expert witness, or treating of the rules which determine the status of such witnesses in court, and their duties, it seems advisable to introduce the subject by a brief consideration of the distinction between ordinary witnesses and expert witnesses. When medicine and law are united in the purpose of investigating facts, and bringing about a legal determination as to what are or are not facts, they co-operate with each other in this way. The law furnishes the machinery for the inquiry and the rules which determine how it shall be prosecuted. The medical man, however, is called upon as an assistant to the law, because of his skill and experience in his profession, which enable him to ascertain and interpret the circumstances from which the facts sought to be established are to be inferred. Ordinary witnesses testify concerning matters of observation, the court and jury being endowed with the sole power to determine the credibility of their evidence and the true result of their observations. Yet the border line of distinction between witnesses who testify merely to actual matters of observation, and those who give their opinions upon and draw inferences from established facts and circumstances, is a wavering one. The general rule of evidence is well understood, that hearsay evidence is inadmissible, and yet, like any other rule, this has its exceptions which grow out of the necessities of given cases. This is so because there are and always will be, matters brought before courts for investigation and determination, long after the witnesses who personally saw the facts and circumstances of the particular case in which such matters are concerned have died, or have withdrawn beyond the reach of the process of the court. Possibly no record in writing of such facts and circumstances has been left, or if in writing it lacks the sanctity of being a judicial writing, and hence is no better evidence than any other form of hearsay evidence. For this reason in matters of family history, pedigree, custom, and the like, hearsay evidence is permitted, and is entitled to as much weight as any other evidence, if the witnesses giving it be trustworthy.
In Matters of Common Experience Witnesses in General Often State Conclusions.—Moreover, in matters of common experience, the testimony of any witness, if carefully analyzed, often shows that he is sometimes allowed to draw, and state, his conclusions and inferences, instead of being required to confine his evidence simply to telling in the strictest possible way, and with the closest limitations, what he actually witnessed. A good illustration of this is the case of a person who sees a crime of homicide committed by shooting, and is called upon to testify in court. He would be allowed to testify that the defendant, if he could identify the prisoner at the bar as such, was the person whom he saw fire the shot, although he might not have examined him with close scrutiny, and might never have seen him before the crime. In saying that the defendant was the person who fired the shot, while he would be in terms testifying to a fact, he would still be drawing an inference, and giving an opinion, based upon his recollection of the person whom he saw engaged in the act of firing, and of the likeness or resemblance of such person to the prisoner at the bar, which would be a matter of comparison and of opinion. So, too, although he could not see the bullet take its course from the mouth of the gun and imbed itself in the body of the deceased, yet if he saw the firing, heard the explosion, saw the flash and smoke of the powder, observed the direction in which the accused pointed the weapon, and saw the deceased stagger and fall, he would be allowed to testify in answer to a direct question whether or not the accused shot the deceased. And, yet in making up that answer he would be testifying not simply to a matter of actual observation, but to a conclusion. As it is in reference to the question of identity so it is as to many other matters which come before our courts, in all of which the witnesses are permitted, without objection, to testify to conclusions and to give answers which are the result of inferences which they draw themselves, rather than a statement of their actual observations. The law is not a metaphysical but a practical science, limited and confined by the practical restrictions which experience has shown must be put upon it, in order to enable it to accomplish its object of administering justice between man and man. Men form such conclusions as have been indicated, instinctively and unconsciously, and it would be practicably impossible for them to narrate any occurrence without embodying in their narration some of these natural and unconscious conclusions. The law, therefore, includes among the matters which witnesses are permitted to characterize as facts, those daily and hourly inferences and deductions which all men are accustomed to make, and concerning which no two men who are properly constituted can greatly differ. It is true that this practice sometimes leads to error, but it has grown out of necessity. The greatest safeguard is, that upon the trial of a question of fact both sides are represented by counsel, and the opportunity which cross-examination offers to an advocate of even reasonable and ordinary skill is such, that these conclusions and inferences may be sifted down through the chain of observation, and the process of drawing these conclusions and inferences from a series of facts, tested in such a manner that the improbability, probability, or truth of any given inference or conclusion may be determined with substantial accuracy. The illustrations which have been given above exhibit the simplest form in which so-called direct testimony can be demonstrated to be not always positive and direct testimony, but somewhat a matter of inference. Other examples and illustrations of common occurrence will exhibit still more closely the line between actuality and opinion. At times it becomes essential to the determination of a question, that the courts should know whether or not a person was angry, whether or not he was intoxicated, or whether or not at a given time, when his mental status was under observation, he acted rationally or irrationally. Lay witnesses have for many years been permitted to testify from observation, and without possessing any special qualification to do so, as to the existence or non-existence of such conditions as those just mentioned in a person whose actions are under consideration. It is manifest that in making any such inferences the witnesses’ testimony is mainly a conclusion based on inference. Take the case of anger. How shall that be determined? It is difficult to describe anger. A loud voice, a flushed face, the use of bitter words, nervous, excitable, demonstrative action—all these symptoms might occur, or but few of them might occur. So, too, in the matter of intoxication. It is well known that some individuals exhibit the effects of intoxicants in an entirely different manner and degree from others. Some men who are very much intoxicated, so as to be quite incapable, in the eye of the law, of forming a criminal intent, or of contracting an obligation which would be valid, may still be able to walk perfectly straight, or to talk without much confusion. Others, whose walk and demeanor would indicate a considerable degree of intoxication, might be mentally clear and unruffled and even stimulated by intoxicants to precise mental co-ordination and reasoning. Again, there are persons, as to whom a witness, after stating that he had observed them, and after stating the particular matters and things in which such persons were engaged, might with apparent accuracy state that they acted rationally or irrationally, and yet such persons might nevertheless, upon further examination, be found to have been acting according to a particular custom or habit, or idiosyncrasy of long years’ standing. Thus it is apparent that in each of these cases, when the witness attempts to state what, out of necessity, the court treats as a fact—viz., whether a given person is or is not angry, or intoxicated, or irrational—the witness is really testifying to the result, in his own mind, of his observations of the condition and conduct of the person who is under investigation, when compared with a standard which the witness has erected for himself. Hence such results are really matters of opinion evidence, pure and simple. Other examples of a like character are found in statements as to weight, height, distance, speed, and the like, as to which men of common powers of observation, who are not strictly experts, are, because of convenience and necessity and the probability of reasonable and ordinary accuracy, commonly permitted to give their own judgment and conclusions as evidence.
All Witnesses Often Permitted to Draw and State Conclusions in Matters involving Numerous and Complicated Details.—Thus the practical necessity of the administration of justice has led to the establishment of the rule, that where the details of an occurrence are numerous and complicated, and are incapable of precise description by ordinary observers, witnesses are permitted to use, in testifying, general expressions which really embody their conclusions from the facts or details observed by them. Greenleaf on Evidence, Section 440, note A; Wharton on Evidence, Section 434.
Wharton says that “the distinction between expert witnesses and ordinary witnesses is this: the non-expert witness testifies to conclusions which may be verified by the adjudicating tribunal; the expert, to conclusions which cannot be so verified. The non-expert gives the results of a process of reasoning familiar to every-day life; the expert gives the results of a process of reasoning which can be determined only by special scientists.” See also People v. Fernandez, 35 N.Y., 49. People v. Deacons, 109 N.Y., 374-382.
This learned writer (Wharton) also says, at Section 437 of the same treatise:
“Where conclusions depend upon facts whose evidential weight can only be determined by those familiar with a particular specialty, then these conclusions may be given by experts in such specialty.” Such also is the exact derivative meaning of the word expert, it being derived from the Latin word “expertus,” meaning, literally, “experienced,” and hence skilled by experience.
Functions of an Expert Witness Essentially Judicial.—It is the function of an expert witness to reason about facts, to explain their connection with one another, and to draw conclusions and inferences from them. Hence, a witness, however expert in any ordinary sense in his specialty, when he is called upon merely to narrate facts which he has observed, is an ordinary witness, and is governed by the same rules which apply to the ordinary witnesses. When, however, he is called upon, in addition to recounting facts, to explain or interpret them by reference to assumed facts, he becomes properly an expert witness. It thus appears that an expert witness must necessarily perform a part of the duties which devolve upon the court or the jury. His position is, therefore, essentially judicial, except that he has no power to enforce his determinations by judicial process. The importance and responsibility which the law thus confers upon an expert are of the highest character. He ranks the coequal with the tribunal itself in his peculiar province, so far as relates to his individual responsibility. That this should tend to elevate such witnesses to a high social position, and ought to require the most exact and faithful integrity of purpose and statement, is self-evident.
Difference Between Status of Expert Witnesses in France and Germany and in the United States and England.—In some foreign countries, notably in Germany and in France, experts in medico-legal matters have an assured official position, and are generally not allowed to be selected at hap-hazard according to the will or the length of the purse of those who need their services. The consequence of this method of obtaining expert evidence is, that expert witnesses in those countries command a high measure of respect and honor.
Unfortunately, however, in this country, where the opposite practice prevails, the weaknesses of human nature are such that the common people, newspapers, lawyers, and even the courts in some recorded opinions and decisions, have come to express a great want of confidence in the weight and value of expert testimony. This deplorable result of a bad system of procedure is universally recognized, yet our State legislatures have as yet refrained from attempting to correct it.
Hence, in considering the value of expert testimony in matters of medical jurisprudence, it must be conceded, in the first instance, that the difference between the system prevailing in this country and in England, and that which prevails on the Continent, notably in Germany and France, has not tended to raise but to depress the value of such testimony in the first-named countries. In the latter countries, the experts upon medico-legal questions are officers of the court, or are treated as such. They form, in a sense, a part of the judicial system, and the expression of their opinions consequently carries with it great weight. Moreover, under the system which prevails there, it has been possible for men to be educated up to a high degree of skill and experience in the particular branches of physiological or psychological or physical investigations which they pursue, while here in America, and to a certain extent also in England, experts are such for other reasons, and by the operations of other causes, than the fact of their permanent employment in that capacity. As a general thing they become skilled in their profession or in the particular branches of it in which they practise as specialists, and are summoned to testify simply because they are selected by one party or another to a lawsuit.
Mr. Wharton’s View of this Question in the Main Hostile to the Prevailing System Here.—The effect of the methods which thus prevail has not been entirely to the advantage of the medical profession or of our courts. Wharton, in his work on “Evidence,” Section 454, observes upon this point: “When expert testimony was first introduced it was regarded with great respect. An expert was viewed as the representative of a science of which he was a professor, giving impartially its conclusions. Two conditions have combined to produce a material change in this relation. In the first place it has been discovered that no expert, no matter how learned and incorrupt, speaks for his science as a whole. 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. Particularly 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. ‘Nihil tam absurdo,’ which being literally translated means that there is nothing so absurd that the philosophers won’t say it! In the second place, the retaining of experts by a fee proportioned to the importance of their testimony is now as customary as is the retaining of lawyers. No court would take as testimony the sworn statement of the 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 this conviction that in every civilized community the retention by a judge of presents from suitors visits him not only with disqualification but disgrace. Hence it is that, apart from the partisan character of their opinions, their utterances, now that they have as a class become the retained agents of the parties, have lost all judicial authority and are entitled only to the weight which sound and consistent criticism will award to the testimony itself. In making 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 their prior advocacy of them or from their readiness to adopt the opinion to be proved. In this sense we may adopt the strong language of Lord Kenyon, that skilled witnesses 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.”
This author then proceeds to show that under the civil law system the conclusions of experts were formerly treated as unassailable facts, but under the English and American common law system this is not the case, but their testimony is to be weighed by the court. He says: “The grounds on which the conclusion is reached may be asked for: the expert’s capacity for drawing conclusions, as well as his premises, may be assailed. Cases of conflict are to be determined, not by the number of witnesses, but by the weight of their testimony, and though the opinion of an expert of high character may be entitled to great respect, yet if questioned, its authority must ultimately rest upon the truth, material and formal, of the reasoning on which it depends.”
Judge Davis, of the Supreme Court of Maine, in Neil’s case (cited in Wharton and Stille’s “Medical Jurisprudence,” Vol. I., Section 294), said: “If there is any kind of testimony that is not only of no value, but even worse than that, it is in my judgment that of medical experts. They may be able to state the diagnosis of a disease more learnedly, but upon the question whether it had at a given time reached a stage that the subject of it was incapable of making a contract, or irresponsible for his acts, the opinions of his neighbors, of men of good common sense, would be worth more than that of all the experts in the country.”
Such stinging criticisms as these, and others which might be cited, of a like character, may not be always merited. It is certain that medical experts’ opinions, if fully enlightened by scientific research and free from partisan bias, ought to occupy a position like that of judicial opinions in weight and decisiveness upon the questions submitted to them. Such was the position occupied in the public estimation, and in that of judges and counsel, by the great Dr. Caspar in Germany, and Foedere or Pinel, and others since their time, in France. But this position was acquired chiefly because of the fact already mentioned, that under the system of administration of justice which prevails in those countries these great men were regarded, and acted, as a component part of the judicial system. They were called in as officers of the law to assist the court in forming a judgment, and determining disputed questions of fact, in cases involving life and death, or the devolution of property, where scientific experience, knowledge and skill, not possessed by judges or by counsel, was necessary for the determination of the questions involved. The root of the evil in America is, as already pointed out, to be found in the system which allows parties to retain and pay their own experts without any substantial restrictions. Sooner or later, among the other reforms in our judicial system, it will be found necessary to reform this evil by the enactment of laws requiring that the witnesses in medico-legal cases, particularly those in which a crime is alleged to have been committed, shall be designated by the court, or by some public authority, and paid from the public treasury instead of by the parties. Such experts would then occupy their proper position of special counsel, advising and assisting the legal counsel and the court, but they would not be taken out of this sphere and put in the utterly inconsistent one of witnesses. Their status and their duties would be as clearly distinguished from that of expert witnesses as now known, as the status and duty of the lawyer are from the status and duty of the judge. The present system has been said to be very much like putting a lawyer, who has just argued his client’s case, on the bench to decide it. Whether experts should be appointed as permanent government officials, like our judges, or should be selected specially for each case like juries, referees, or arbitrators, and in the latter event whether they should be nominated by the parties and selected by the court from such nominees, or otherwise, are all questions of detail.
Our judges and lawyers seem slow to recognize the fact that the duties of experts are judicial, or at least quasi-judicial; to pass upon certain facts which neither the court nor the jury can understand without their aid. But, as we have seen from the citations just given, judges and lawyers have fully recognized the unreliability of expert testimony, produced as it now is in England and in this country at the whim and selection of the parties and paid for, much or little, according to the means of the parties.[181]
Method of Preliminary Examination of Experts—On Medical Questions a Licensed Physician Presumed Competent.—As the system exists here, the only power that the court has over the selection of an expert, is to determine, in advance of his testimony and of the elucidation of his opinions, whether or not he is competent as an expert. But this power affords little or no check or restriction, because in the effort to get all the light that is possible upon the questions under consideration, and to avoid unduly interfering with counsel in the conduct of the case at bar, the practice has become universal, and is recognized in the decisions and text writers, of permitting any medical man who has a license to practise his profession, to testify as an expert, and to give his opinion as such on any question cognate to his profession. This is so without regard to the amount of study and experience he may have had in the particular matter under consideration. The naked fact that he is licensed to practise is enough. He then—that is, after testifying that he is a practising physician—is clothed with the garment of authority. The only way in which his knowledge can be tested is by cross-examination as to his experience and skill, and possibly by contrasting him as he appears upon the witness-stand and his history as he gives it, with other and more or less experienced and skilful men who follow him.
The rule is, that when a witness is produced to give an opinion on a medical question, he is interrogated by the counsel who produces him as to his qualifications. At this point, before he is allowed to give his opinion, it is proper and customary that the counsel upon the other side of the case should be allowed an opportunity to cross-examine as to his competency, and then the court determines whether or not he is a competent witness. If the court pronounces him competent, a hypothetical question is put to him stating the facts of the case, as the counsel interrogating him claims them to be established by the evidence, and the expert is then asked to give his opinion on the question at issue, based upon an assumption that the facts stated are truly stated. Then the opposing counsel has the right to cross-examine, and to ask his views and opinions upon the same question at issue, but assuming as true other and different facts or premises, as he claims them to be established by the evidence. This often involves a test of wit and intelligence, and of forensic acumen, between the counsel and the witness, which serves very little useful purpose, except perhaps to elucidate more strongly than has been here stated the defects of the system which now obtains. It is also not unusual, and in fact is the result of the workings of human nature, that under the manipulations of counsel skilled in cross-examination, skilled in methods of indirection in stating facts, and armed with the powerful weapon of the rule which permits them to insist upon a categorical yes-or-no answer to a question, the jury and the court become confused, the witness loses his temper, or becomes affected more strongly than ever before by bias against his persecutors, as he feels them to be, and the examination ends in a farce. This is not always the case, and the illustration given is an extreme one. Like the citations from judicial criticism of expert testimony which have been given, these matters are only adverted to here as danger signals, a warning to both professions, and with an earnest suggestion of the necessity of reform.