The sun., 1910-02-17
MEDICAL EXPERT TESTwoNy
Views OF Judge william schoneId n, IN.
Massachusetts Superior Court.


Frcgt As Boston Msdleal and SuyCtcdl ,yo,-...
There is no provision OF the Federal Co,.
stitution or OF any State Constitution. so "a.
az my knowledge extends, which sarurs.
to q party che right TO select hia witness..
The Federal Constitution protects the rIwA.
Of trial by jury. OF conformation in crir,S
lnal Casea. and grants TO the accused tha
right to compulsory process to surnpor
witnesses TO his defence and secures in An
cases due process OF law. The Constie,I
tions OF many OF the States contain siuoila,
provisions. Neither the Federal nor An,
State Constitution expressly provides that
q party may select his witnesses. On ths
contrary. the rules OF evidence and IN.
qualifications Of witnesses are wholly undsr
the control OF the Legislature. 1 bslieva
that the Legislature has full control ovs-
the subject Of expert testimony. saving onIv
to the defendant the right Of confrontation
In criminal cases. So nrmly established
however. IL the belief that a party cannot
be deprived of the supposed right OF select
ing his own witnesses. including expert
witnesses. that every bill enacted or pro-
posed which have seen providing for a
List Of officially designated MEDICAL experta
contains the express provision that nothing
In the act shall preclude either party from
summoning and using other expert wit
nesses at the trial.
The prevalent feeling In favor of this
right Of party to select his witnesses. in
Guiding expert witnesses, is so strong that
probably no American Legislature could bs
persuaded to pass a statute which did not
reserve It. The probable result will be that
statutes providing for officially designated
experts to be appointed by the court will
not be used by the parties. Parties win use
the right to select experts for themselves
unless sorne advantage will come to them
from accepting the Official experts.
Until public opinion or legislative opinion
shall be 30 changed as to make It possible
TO prohibit the selection OF medical expert
witnesses by the parties there is no praoti-
cal advantage In enacting statutes which
provide for the appointment Of experts
by the court. The parties will go on select
ing their own experts and medical expert tes-
timony will so on as 1t was before. II su-
thority should be given to the court. as n
given in the Michigan statute Of 1905 and
In proposed statutes In other States. to
appoint experts on Its own motion and 10
call them as witnesses subject to cross-
examination. the result VIII be merely TO
add a third class Of experts to those selected
by the parties and TO increase the number and
possibly also the variety OF medical expert
opinions. The fact that the oficial board or
list Of medical experts cannot be made excu-
sive In q strong practical reason against
adopting the system Of official medical or
pert witnesses in the United States.
II statutes wers enacted regulating the
fees and contracts OF medical expert wit
nesses and prohibiting the acceptance BY
them Of any different fees either for attend
ance at court or for services. and RESTORING
the common law powers OF the trial Judge
conditions would be established in the
courts by which the evils Of medical expert
testimony could be greatly mitigated u
not wholly removed. Medical societies
can aid the reform by bringing forward
the moral issue involved and inpressinE
it upon students and practitioners. They
can establish rules OF conduct to be OBJ
served by their members when called upon
to act as medical expert witnesses.