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

and impaKtiality In the minds OF the
Jury than is attributable to the words
Of other witnesses not belonging to the
same privileged class. In brief they
assert that it is un-American and unfair
to establish by statute a privileged class
of witnesses, even II litigants are left
at liberty, as they must be under the
Constitution, to call other experts.
The answer to this objection is that
the scheme is purely permissive in char
acter. No one would be compelled to
resort to the official experts for the
opinion evidence which he desired in his
case, and IL an official expert gave tes-
timony against him he could have the
jury instructed that the mere fact that
the witness had been appointed an Off
cial expert did not entitle his opinion to
be accepted in preference to the opin-
ions OF other and non-official witnesses.
In some respects the creation OF a body Of
medical experts available as witnesses at
the public expense would be advantage
OTIS to the administration Of justice indie
pendently Of the general considerations
which have been mentioned. The Dis
trict Attorney would have qualified wit
nesses at hand to testify to their opin-
ions in cases where insanity was speci-
fed as a defence under the plea of not
guilty, and in will cases where the men
tai competency Of the testator was at
tackled tho proponents Of the will would
always know where to look for impartial
opinions on the question Of testament
tary capacity.
In addition to the emphasis which he
gives to the point that the establishment
Of any system would be unconstitutional
which excluded all medical opinion evil
dence except that given by officially
designated experts, Judge CLEARWATER
corrects the prevalent notion among
laymen that the medical expert wit
ness is a comparatively modern figure
in the courts and that the hypothetical
question Ia an abomination in the law.
The legal annals Of ancient Rome, Of
the dominions Of Emperor CHARLES w.,
Of France under HENRY Nv. and Of Eng
land since the time Of HENRY II. all
show that the courts occasionally called
upon medical experts to assist in the
determination of causes by giving their
opinions. The subject matter Of dis
cussion therefore ID not a development
Of modern civilization. The usefulness
Of the hypothetical question as a basis
for opinion evidence ia recognized by all
practising lawyers Of much experience.
The method is ito frame a question upon
the assumption that certain facts are
true, and then to ask the witness, assum-
ing they are true, his opinion regarding
them The reason why hypothetical
questions have become discredited in
the public mind is not that the method
is wrong but because counsel have been
permitted to abuse it. The hypothet-
ical question has been heightened be-
yond all bounds of reason, utility or
common sense. To lengthen a state
ment Of assumed facts beyond the capac-
ity Of the jurors or even OF the witness
himself to keep them all in mind il to
render the response absolutely value
less as a guide to a just and correct ver-
dict. The trial Judge has the right to
limit a hypothetical question in this
respect, and this power ought to be
exercised whenever such interrogatories
are inordinately long.
The evils which characterize medical
opinion evidence cannot be remedied
without the cooperation OF the doctors.
the lawyers and the Judges. The law-
yers must not try to get doctors to Dol
ster up their cases by false opinions on
matters Of medical science. The doc
tors must refuse to testify to false opin-
ions. immortality in this respect on the
part Of members Of both professions is
at the bottom Of the trouble. The
courts themselves are less responsible:
but the Judges can help the cause Of
reform by limiting the length Of hypo-
thetical questions, and oftentimes by
conducting the trial in 30 discreet a
way as to make manifest to the jury
on which side perjury lies.