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.
EXPERTS, HOW SUMMONED INTO COURT.
They Must Obey the Summons and Appear and be Sworn. In General they need Not Give their Opinions unless Duly Compensated.—An expert witness is brought into court like an ordinary witness by the usual process of the court. This process is, under the American system, an ordinary subpœna, and, being process of the court, whether or not he has been paid or promised compensation for giving his opinion he must obey the process to the extent at least of appearing in court when called, to be sworn. Interesting questions have been raised as to his obedience to the subpœna to the extent of testifying when he has not been compensated. It has been argued, and the argument is sustained by the decisions of courts of high authority in some States, that his knowledge and skill, acquired by study and by experience, is his property, of which he cannot be deprived without just compensation, under his constitutional rights guaranteed to him by the organic law of this country. On the other hand, in some other States it has been held that he is so far a necessary part of the judicial system that he may be called upon to give the results of his experience, knowledge, and skill forming his opinion, without payment other than the ordinary compensation to witnesses. It is believed, however, that the better opinion is the former; that he does not stand on the same footing as an ordinary witness, whose province it is to testify solely to matters of observation of fact, but that he stands in the position of one who has something to give; something to impart in the way of knowledge or experience, which is his property as much as any other thing movable or immovable of which he is possessed.
A somewhat different question has arisen in the case of a witness who, like a family physician or attending physician, has learned facts and has been paid for his attendance, or who exacts payment for his attendance, as a physician from his patient, and this question is; when such a professional man has been called upon to testify to the information he thus attained, whether he can be asked for, and required to give, opinions based on those facts? Necessarily, having learned the facts by observation, such as the appearance, symptoms, and actions of the patient, he is, when testifying as to these matters, nothing more or less than an ordinary witness, because he is testifying to matters of observation. As to these matters public policy requires, except so far as it has been modified, or rather extended, by our statutes which forbid testimony as to privileged communications, that he must testify, the same as any other witness. But suppose that, having so testified to the facts, he is asked to give his opinion; for example, in an insanity case, whether the symptoms that he found in his patient led him to the belief as a professional man of experience and skill that his patient was sane or insane. The question is, Can he be compelled to give that opinion, if he chooses to decline to give it without the promise or assurance of further compensation than the mere per diem fee and mileage of an ordinary witness? The best authority is to the effect that he must so testify, the reasoning of the court being that his opinion is only a part of what he derived from his original relation of physician to his patient. Wright v. The People, 112 Ill., 540; same case, 33 Alb. L. J., 79.
Same Rule in Civil and Criminal Cases.—The rule is the same whether the professional man is called to testify as an expert in civil or criminal cases. In either one he is not obliged to give an opinion as such, independent of a personal knowledge of the facts in the case, without being paid or assured reasonable compensation therefor. His proper course of conduct is, when he has obeyed the subpœna and is in the presence of the court and has been sworn, and the questions put by counsel disclose that the object of his examination is to elicit from him an opinion, to state to the court that he has not been paid any other compensation than that of an ordinary witness, and that he respectfully declines to give an opinion in the case as an expert, without compensation proportionate to the value of his opinion.[182]