THE MEDICAL EXPERT AS A WITNESS. By Frank S. Rice. OF all the cant that's canted in this cant ing world, expert medical cant is the most pernicious; and of all species of evi dence offered in a court of justice, none is so thatched with suspicion or further re moved from every suggestion of usefulness as is the evidence of a medical expert. Indeed these glib-tongued pundits have so effectually discountenanced themselves in juridical estimation that to adopt the vigor ous language of Lord Chancellor Campbell in the Tracy Peerage case (10 Clark & F. 1 54) : " They 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." Mr. Justice Earl of the New York Court of Appeals, commenting upon this declara tion of the distinguished chancellor, says: "Without indorsing this strong language which is, however, countenanced by the utterance of other judges and of some textwriters, and believing that opinion evidence is in many cases absolutely essential in the administration of justice, yet we think it should not be much encouraged and should be received only in case of necessity. Better results will generally be reached by taking the impartial, unbiased judgments of twelve jurors of common sense and common ex perience, than by taking the opinions of ex perts, whose views cannot fail to be warped by a desire to promote the cause in which they are enlisted." (Ferguson v. Hubbel, 97 N. Y. 507.) Subsequently another judge of the same court, wishing to italicize this condemnation, and affix an indelible brand upon the whole "job lot," said : " The frequent spectacle of scientific experts differing in their opinions upon the case, according to the side upon which retained, tends much to discredit such
testimony, or to impair its force and useful ness, and inclines us to prefer the formation of an opinion upon the real facts, when the case is not one beyond the penetration and grasp of the ordinary mind. (People v. Kemler, 119 N. Y. 580.) Mr. Wharton pilloried the whole guild in one of his most admired passages which is still quoted with approbation : — "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. Peculiarly 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 when off the stand. ' Nihil tam absurde dici potest, quod non dictatur ab aliquo philosophorum.' In the second place, the retaining of experts by a fee proportioned to the importance of their testimony, is now, in cases in which they are required, as customary as in the retain ing of lawyers. No court would take as authority the sworn statement of 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 judg ment; and so intense is their conviction that there is no civilized community in which the reception of a present from a suitor does not only disqualify but disgrace a judge. Hence it is that, apart from the partisan temper more or less common to experts, their utter ances, now that they have as a class become the retained agents of parties, have lost all judicial authority, and are entitled only to the weight which a sound and cautious criti cism would award to the testimony itself. In adjusting this criticism, a large allowance
