The sun. [volume] (New York [N.Y.]) 1833-1916, 1909-06-06
The Opinion Evidence OF Doctors,

Inc ODthIou VI
An exceptionally wise and sensible
article ON medical expert testimony is
contributed to the current number Of
the North American Reriep by Judge
ALPHoNso T. CLEARWATER Of Kingston,
NY. The author is q leader OF the bar
in his locality. has been County Judge
OF Ulster county by election and a Su-
preme Court Justice Of the Third al
bany) judicial district by appointment
from the Governor, and ia the chair
man OF a committee of the New York
State Bar Association which prepared
a bill authorizing the designation Of
medical experts by the Appellate Divi-
sion Of the Supreme Court. This meas
ure got through the Assembly but was
rejected by the State Senate.
Whenever a celebrated case has in
volved an inquiry into the mental ca
pacity OF a defendant on trial for a
crime or OF a testator whose will is at
tackled, the verdict is usually followed
by bitter newspaper denunciation of our
system OF taking medical opinion evi d.
dence, accompanied by equally strident
demands for reform. While the evils of
the system are manifest, the proposals
for their cure are almost all framed in
apparent ignorance OF the fact that the
principles Of American constitutional
law will not permit the enactment OF any
statute which would deprive a litigant
of the right to call such witnesses as can
give material and relevant testimony
in support Of his cause He cannot be
forced to rely upon the evidence of off,
cial experts chosen for him by the
judiciary Or any one else. The constitu-
| tional right to the aid of ones own wit
nesses is Universally regarded as more
important than any reform in reference
to medical expert testimony. and Judge
CLEARWATER has done we'll to point out
to physicians and laymen that no legis-
lation which ignores this right has any
prospect of enactment " would prove
| effective il adopted. The constitutional
barrier stands in the way.
The chief evil Of the present system
is due to the fact that the medical
expert witness, being paid by the liti.
CANT who calls him, is apt to color his
opinion evidence in accordance with
the interests of his side Of the case.
Scientific impartiality cannot reason
ably be expected where the relation Of
employer and employed thus exists be-
tween party ayd witness, A recon-
mendation which has found much favor
among the leading medical men who
have considered and discussed the sub
ject is the designation OF a body OF
official experts by some judicial or
other authority whose duty it shall
be to give medical opinion evidence
in any civil or criminal case at the re-
quest OF any party without expense to
that party, the services being paid
for by the State. 1t is argued that the
opinions Of such witnesses would GER
tainly not be affected by pecuniary bias.
and that as the appointing power would
doubtless take great pains 10 select
only experts Of high professional stand
ing the jury would give their opinions
more weight than those of non-ofioial
experts. On the other hand the oppo-
nents Of this scheme contend that the
State cannot properly give to the words
of any witness, by bestowins an ap.
pointment upon him prior 10 a trial
q greater probability Of truthfulnees