THE TESTIMONY 
- OF- 
Medical Experts. 
ANNUAL ADDRESS 
-OF- 
W H. PHILIPS, M. D.; 
KENTON, O., 
Retiring President Ohio State Medical Society. 
COLUMBUS, O,: 
COTT & HANN, PRINTERS, 
1878. THE TESTIMONY 
-OF- 
Medical Experts. 
ANNUAL ADDRESS 
-OF- 
W. H. PHILIPS, M. D., 
KENTON, O., 
Retiring President Ohio State Medicai^-Souiety:' 
COLUMBUS, O.: 
COTT & HANN. PRINTERS, 
1878. 3 
THE TESTIMONY 
OF- 
MEDICAL EXPERTS. 
ANNUAL ADDRESS OF THE RETIRING PRESIDENT, 
W. H. PHILIPS, KENTON. 
It will be remembered that at the last session of this 
Society, the subject of Medical Experts was referred to a 
special committee, of which I was made the responsible 
head. It has seemed to me not inappropriate to introduce 
this subject upon the present occasion, discussing it in its 
relation to the people generally, and to the medical profes- 
sion in particular. 
If we look to the origin of government, it will be found 
that the family preceded it, under the leadership of a patri- 
arch or chief. The interests of families came into conflict, 
and it became necessary for those whose interests were 
similar to combine for purposes of defense. To prevent 
anarchy, those thus uniting were compelled to form a 
national body, upon which such powers were conferred as 
tended to give security to the interests of all. In necesity 
government thus had its origin, the object of its formation 
being to give security to the individual and to everything 
that is dear to him. Differences have arisen among men 
as to the best means of obtaining this security; and from 
these differences have sprung the. various forms of govern- 
ment. But whatever form may approximate nearest to 4 
w. H. PHILIPS, M. D. 
perfection, certain it is, that the security, which the indi- 
vidual has, is directly proportionate to the fact, whether 
his government is good or bad. The whole is made up of 
parts. As are the parts so is the whole. Government 
consists of various departments. According as these de- 
partments are managed, the whole is managed ; and accord- 
ing as the whole is managed, the security which the citizen 
has is good or bad. 
It is the department of Justice with which we now have 
to deal, considering it merely with reference to those 
cases, wherein, for the proper investigation of truth, it is 
necessary to call in the testimony of medical experts. No 
other department comes so near home to the citizen as 
this. A few see the workings of the other departments, 
but the great majority are totally unacquainted with them 
except by hearsay. Their workings affect the people as a 
whole, and not as individuals. They seem far off, and 
their effects, though powerful, are mostly indirect and not 
easily described in their action. With the courts it is dif- 
ferent. There is not a citizen in the land who does not 
come in contact with their operations. It is here that he 
is punished, that his wrongs are redressed, and his rights 
obtained. He is affected as an individual. He sees and 
hears for himself the causes by which effects are wrought 
upon his life, his liberty, his property, or his reputation. 
The fact need scarcely be pointed out that where such im- 
portant interests are at stake, the instrumentalities em- 
ployed in securing justice should be as perfect as possible. 
The great progress which has been made in the last cen- 
tury in judicial science abundantly attests the general ap- 
preciation of this fact by the English and American people. 
The matter of medical expert testimony furnishes, how- 
ever, an exception. In this a conservatism has been dis- 
played which evinces either a marvelous confidence in the 
infallible wisdom of their ancestors who founded the pres- 
ent methods of procedure, or a neglect utterly at variance 
with the radical and reformatory ideas of the nation. 
Let us glance for a moment at the origin of our coroner 
and expert system. The office of the former is very an- 
cient, having been instituted long before Medical Jurispru- 
dence was known in England. He was originally of high 
rank, served without compensation, and was appointed for 
life. In the 16th century, when Medical Jurisprudence TESTIMONY OF EXPERTS. 
first came to be taught in England, the character of the 
office had changed: fees were paid, and all classes of 
society were made eligible, the occupants were corrupt, 
and justice was neglected. Medical Jurisprudence itself 
was in a very crude state. Barbers.and surgeons per- 
formed the same duties ; physicians were prophets, astrolo- 
gers and sorcerers; the superstition of the age forbade 
medico-legal antopsies; almost complete ignorance existed 
of either morbid or normal anatomy; chemical mysteries 
remained uninvestigated ; the standard works of the time 
contain chapters on Ghosts, Torture, Witchcraft, Miracles, 
Sorcery, Prophecy, Demonology and the like ; experts tes- 
tified learnedly as to the bleeding caused by the murderer 
approaching the body of his victim, while Judges, like Sir 
Matthew Hale, declared that ‘there were such creatures as 
witches he made no doubt at all; for first the Scriptures 
had affirmed so much ; secondly, the wisdom of all nations 
had provided laws against such persons, which is an argu- 
ment of their belief in such a crime.’ In this case the 
jury found the defendants guilty, and on the judge’s sen- 
tence they were executed. Asylums for the insane were 
unknown. They were regarded as brutes devoid of all 
sensibility ; were farmed out as slaves, and chained like 
beasts in stables and pens. 
Laws, it would seem, were scarcely needed to apply such 
principles as these in judicial investigations. Still such a 
system of laws did exist, the same which we inherited from 
our English ancestors, and have preserved unchanged even 
to the present day. But whilst the laws applying to it 
have remained stationary, medical jurisprudence, being a 
progressive science, has gone steadily forward, until now, 
in hundreds and hundreds of the cases that arise, our 
courts are powerless to do justice without an intelligent ap- 
plication of its principles. Scientific research has lifted 
the vail of ignorance and superstition which so long ob- 
scured it. Witchcraft and sorcery are things of the past. 
The mysteries of chemistry have been revealed, and from 
its rich stores contributions have been made to almost 
every science. Anatomy has been developed in all its 
branches. Medico-legal antopsies have come to be recog- 
nized as essential to justice. The diagnostics of diseases 
have been noted and recorded. By the aid of the stetho- 
scope, thermometer and microscope, the problems of life 6 
w. H. PHILIPS, M. D. 
and death stand almost solved. The insane have ceased to 
be regarded as “children of the evil one,” and are now 
the wards of the State, while comfortable houses have re- 
placed the barns and pens in which they were once kept, 
and mercy and sympathy now stand in the place formerly 
occupied by brutality and contempt. 
There arise annually in the United States not less than 
twenty thousand civil and criminal cases in which it is nec- 
essary to apply the principles of this science. Medical ex- 
perts are called to testify as to the causes of disease, the 
effects of wounds, the state of a person’s mind, the effects 
and symptoms of poisons, the results to be apprehended 
from a particular treatment, the likelihood of death occur- 
ring from certain causes, as to marks, burns, strains, signs, 
appearances, as to the determination of real or apparent 
death, as to questions of a sexual bearing, as to identity, 
age, legitimacy, survivorship, punishment, and questions 
of a like nature. These cases generally involve the most 
important interests in life. As a learned jurist has ob- 
served : 
“Life, fortune, reputation, friendship and happiness 
may depend upon the testimony of the medical expert. 
How responsible the position where interests of such vast 
importance to the parties and to society hang upon a single 
word that may fall from the lips of fallible man. With 
what care should the witness measure his words and adjust 
his language, so that the jury will not misunderstand him, 
or be misled by an unguarded expression. The position is 
responsible indeed, and should drive the ignorant pre- 
tender to medical knowledge to call upon the rocks and 
mountains to hide his shame and cover him up forever from 
the sight of his Maker and the eyes of his fellow mor- 
tals. ” 
The magnitude of the matters at stake shows the neces- 
sity of having highly intelligent and skilled experts to in- 
vestigate these questions properly. In so far as the pro- 
tection of the citizen in his rights is a matter of State con- 
cern, provisions for securing competent experts in these 
cases are also of State concern. Not one of our States has 
recognized this fact. On the contrary, they have utterly 
neglected to adopt a code of laws which would secure a 
rational application of medical science to judicial injuries. 
Supply follows demand. It is the duty of the State to TESTIMONY OF EXPERTS. 
7 
furnish a demand for competent experts. This has not 
been done, and hence the reason why medical jurisprudence 
has been so much neglected in our medical schools. 
It is no easy matter to determine who are experts in a 
given case, and who are not. Perhaps the best rule yet 
laid down for making this determination is that of Whar- 
ton : “The non-expert testifies as to conclusions which 
may be verified by the adjudicating tribunal; the expert to 
conclusions which cannot be verified. The non-expert 
gives the result of a process of reasoning familiar to every 
day life ; the expert gives the results of a process of reason- 
ing which can be mastered only by special scientists.” 
But who, under our law, is to decide whether the process 
of reasoning, required in a given case, is “familiar to 
every day life,” or can be “mastered only by special sci- 
entists?” The coroner or judge must decide. They may 
be men of intelligence and education, but not in one case 
out of a hundred have they that special knowledge of 
medical, surgical and psychological science which is needed 
in order to a proper performance of this duty. Notwith- 
standing, the law entrusts to them the examination of the 
expert’s competency and the formation of a judgment 
thereon. But how in the nature of things can this be 
done? All judgments are based on relations. The judg- 
ment as to the expert’s competency must be founded on 
the relation between the special knowledge of the expert 
and the special knowledge of the coroner or judge. If the 
coroner or judge has no such knowledge, he can form no 
correct judgment as to the expert’s competency. Hence 
the custom which has grown up of admitting any one to 
testify as an expert who will certify as to his own special 
knowledge, without any attempt being made to discover 
in what that special knowledge consists. 
A quack and a physician may be called to testify as ex- 
perts. The quack, equipped with brazen impudence and 
ever ready to advertise his acquaintance, not only with the 
special subject whose principles it is desired to apply, but 
with all other subjects, lays down, ex-cathedra, as it were, 
certain fictitious principles as true ; and as neither coroner 
nor judge knows anything to the contrary, he receives all 
the credit due to the competent medical expert. The phys- 
ician, on the other hand, painfully aware of the absurd 
confusion of the office of expert with the office of physi- 8 
W. H. PHILIPS, M. D. 
cian, knowing the immense scope of medical science, and 
the utter impracticability of one man acquiring special skill 
in all its branches, assured that his training as a physician 
has not fitted him to do justice, as a competent expert, in 
medical jurisprudence, either to himself or to the parties 
concerned in the case, perhaps hesitates, is uncertain, or 
frankly confesses his ignorance. As neither coroner, judge 
nor jury are able to determine the cause thereof, they are 
apt, generally, to judge him incompetent, and to give his 
testimony little or no weight. Thus, under present legal 
rules, is quackery exalted, justice trifled with, and the repu- 
tation of the highest physician injured. One result of 
leaving the choice of competent experts with those who 
are incompetent to distinguish between experts and non- 
experts, has been the establishment of the legal and popu- 
lar presumption that every physician is, by virtue, of his 
profession, a medico-legist, and therefore competent to 
testify as an expert in regard to all the special branches of 
medical jurisprudence. The same presumption attaches to 
all kinds of experts. Thus in New Jersey, a physician, not 
an oculist, has been admitted to testify as to diseases of the 
eye ; in North Carolina, physicians, not veterinary sur- 
geons, as to diseases of mules ; in New York and Alabama, 
other persons, not veterinary surgeons, as to diseases of 
animals; in New York, a physician, not a chemist, as to 
whether certain stains are apparently blood; in California 
and Iowa, a witness, not a chemist, as to the effects of a 
powder in removing ink spots; in Louisiana, a person, not 
a surgeon, to prove that a death was caused by wounds; 
in Alabama, a witness, who had frequently drank fer- 
mented liquors, and is able to distinguish them by their 
taste, although not having any special knowledge of chem- 
istry, as to whether a certain liquor which he has tasted is 
or is not fermented. 
Properly speaking, medico-legists only are medical ex- 
perts. A man may be the leading physician of his State, 
and yet not be competent for such an office. It requires a 
special training, which the State, as the guardian of the 
people and the dispenser of justice, should provide. This 
duty she neglects to fulfill, employing in its stead the pre- 
sumption referred to. Hence it is that reproaches have 
often been unjustly heaped upon the medical profession ; 
because they did not do as no reasonable man could expect TESTIMONY OF EXPERTS. 
9 
them to do. Hence it is that the testimony of experts has 
fallen into disrepute, because the law provides no means of 
winnowing the chaff from the grain. 
This confusion between the office of expert and physi- 
cian has long been to the profession a matter of annoyance 
and chagrin. But this feeling approaches one of outrage 
when we consider how often physicians are forced to 
attend court to the utter neglect of their business, and for 
no further compensation than the pitiful pittance paid as a 
fee to the ordinary witness. The justice of this practice 
has always been denied. In three cases out of four, where 
its legality has been tested, courts of higher resort have 
held that the State, as well as the individual, must pay the 
physician a full equivalent for his scientific opinions. 
“ Salus populi, suprema lex, ” was the governmental maxim 
of the Romans. It is equally applicable to us, in that the 
safety of the people being the primary object of govern- 
ment, all laws should tend to secure that end. The su- 
preme law of our State declares that private property shall 
ever remain inviolate, subject to the right inherent in every 
sovereignty to appropriate such property to public uses, 
upon just and adequate compensation. In many cases, 
private rights must be sacrificed to the public weal. A 
private inconvenience must be endured, rather than a pub- 
lic mischief. If the public good demand it, the services, 
property, or even life of the citizen may be employed for 
its protection. But closely attendant upon this govern- 
mental right, is the reciprocal duty of making full compen- 
sation to the citizen whose interests have been affected. 
It is a duty enjoined by our constitution; it is founded in 
natural equity ; it is laid down by jurists as a principle of 
universal law. Property is varied in its character. It may 
be corporeal or incorporeal, tangible or intangible. It 
may exist in the form of land, in a right or privilege, in 
the ideas found in a book, or flitting along the electric 
wire, or in a peculiar knowledge or skill. A son inherits 
a sum of money. He may become a money lender, and 
convert his money into evidences of debt. These are his 
property. He may invest his money in real estate. This 
is his property. He may employ it in educating his 
brains. The peculiar skill or knowledge arising from that 
education is just as much his property as the land or notes. 
The law recognizes this fact in the case of lawyers, referees, w. H. PHILIPS, M. D. 
master commissioners, and the like. An attorney is as- 
signed to defend a criminal, and receives proper compen- 
sation therefor. So with the referee and commissioner; 
they receive value for their special services. 
The relation of the medical expert to the court is ex- 
actly analogous. Yet, with one exception, there is not a 
statute, decision, or legal custom in force in our State 
under which he receives any more for his services than does 
the ordinary witness. The one exception referred to is a 
statute passed in 1861, providing compensation to physi- 
cians and surgeons for making post-mortem examinations, 
and which, owing to the manner in which this compensa- 
tion is to be computed, is a standing insult to the dignity of 
the medical profession. Under this enactment, the coroner 
or other officer, at whose motion the examination is made, 
is obliged to keep account of the time during which the phy- 
sician is at work, and the nature of the operation performed. 
Upon his report of these facts, the court determines the 
amount of compensation. In other words, the value of 
the expert’s services are to he judged of by one who is gen- 
erally totally unfitted by education to form any judgment 
thereon ; and he is to be paid like the day-laborer, accord- 
ing to the time employed. 
A distinction has been made between “ordinary” and 
“ skilled ” witnesses. Persons testifying as to the facts 
come under the first head; medical experts and experts 
generally under the second. When called on to testify as 
an ordinary witness, the physician admits it his duty to 
testify in the same manner, and for the same compensa- 
tion, as any other citizen. But when called on to give his 
professional opinions, he denies the applicability of the 
word witness to him at all. It is a word in whose meaning 
is implied a personal attendance upon, a direct cognizance 
of the facts. The medical expert has had neither. He 
stands like the attorney or referee, a pro tern, officer of the 
court. His relation is that of an adviser, an arbitrator, or 
assistant. His opinions are intended as simple advice, to 
influence the judgment of the court. But whatever be his 
relation to the judge, certain it is that his special knowledge 
is his stock in trade, the product of his labor, the capital 
upon which he speculates, the source from which he draws 
his livelihood. Like all capital, however, in order to be 
profitable it must be kept in constant use, and at the TESTIMONY OF EXPERTS. 
11 
proper place. If the physician is carried away from his 
business and kept in attendance upon the courts, this con- 
stant use is stopped, his special knowledge is taken from 
the place where it might have been profitably used, and he 
is injured according to the value of that use during the 
time he has been deprived of it. Our constitution says 
that the citizen shall not be thus deprived of his property 
without adequate compensation; and there is but little 
reason to doubt but that, if a test case arise, our Supreme 
Court would hold, as that of Indiana has just done, that 
the special knowledge of the physician is his property, and 
the State must pay for it or leave it alone. 
Leaving these two topics, the method of determining 
who are experts, and the amount of compensation, let us 
look at other branches of the subject. Medical experts 
are often called to assist at inquests. To assist whom ? 
The coroner,—a man who ought properly to be a person of 
intelligence, thoroughly versed in medical jurisprudence, 
and elected, or better, appointed for life, in order to be- 
come acquainted with his duties and relieved of political 
influences. But who is he in fact? With rare exceptions, 
a man without medical, legal, in many instances without 
literary, education ; owing his office to political favor, and 
subject to its influences; his compensation small; unac- 
quainted with the duties ; in every way unfit for his im- 
portant office. As Dr. Beck has expressed it, in his work 
on Medical Jurisprudence: ‘‘The duties of his office are 
imperfectly understood, and often most negligently per- 
formed. * * * The individuals appointed are 
often unfit for the situation, both from habit and educa- 
tion.” 
These are the men, who, under the Anglo-American 
mode of practice, determine who are experts, to whom 
physicians often have the pleasure of standing in the rela- 
tion of assistants; by whom their opinions are weighed, 
accepted or rejected; and who gather together the impor- 
tant facts in the case, upon which to form a basis for the 
opinions of experts in the higher courts. Inasmuch as an 
ignorant or incompetent man is apt to look for assistants 
among his own kind, nothing but accident will generally 
prevent an inquest from being presided over by an incom- 
petent coroner, aided by a corps of incompetent assistants. 
Accurate medico-legal autopsies are essential to justice in 12 
W. H. PHILIPS, M. D. 
many cases. There are many signs, marks, and circum- 
stances connected with a dead body, or the scene of an 
affray or other crime, which in themselves are sufficient to 
identify the criminal, or to designate the cause of various 
effects. These evidences may be very delicate, and an ex- 
perienced eye required to observe them. In a short time 
they disappear, and the means of detection are lost 
forever. Elwell, in his work on Malpractice and Medical 
Evidence, observes on this point, that “when the coroner 
does not detect the perpetrator of a homicide, in most 
cases he is not detected at all. When a crime has just 
occurred, there is more interest felt and wakefulness exer- 
cised than afterward. The body of the deceased is fresh ; 
the opportunities of scientific examination are usually per- 
fect, much more so than after disorganization has destroyed 
the structure of the body. Those who saw the victim last 
and the circumstances surrounding him are present. The 
witnesses have not yet been tampered with. * * * 
If the guilty party is followed up immediately, with sharp, 
quick strokes, the chances of arriving at the truth are 
greatly increased.” 
These facts show the significance of the coroner’s in- 
quest. Furthermore, they show the necessity of a change 
in the present system which will relieve it of its deformi- 
ties; which will place in charge of these investigations 
men who are competent to make them, to select proper 
assistants when needed, and to testify to the facts if the 
case is carried into the courts. 
The method of applying expert testimony in civil and 
criminal trials is no better than at the inquest. Nominally 
the judge is to determine who are experts. But the 
same difficulty meets us as in the case of the coroner. 
Skilled in the law they may be; but judges are not neces- 
sarily, or even commonly, acquainted with the principles of 
Medical Jurisprudence. Inconsequence, what is known as 
the “voluntary system” of experts has grown up. The 
parties are allowed to summon whom they please to tes- 
tify in their favor. Neither party summons a witness 
whose testimony he is not certain will aid his side of the 
case. The experts found in our courts are therefore men 
of pre-ascertained views, brought into court because they 
are advocates of some particular theory which is needed to 
sustain the complaint or defense. Hence it is that in al- TESTIMONY OF EXPERTS. 
13 
most all our criminal trials experts are found swearing 
positively and directly contrary to one another. In the 
Stokes-Fisk case, for example, experts were equally in 
opinion as to whether the deceased died from the effects of 
the wounds, or the manner in which the ball was extracted. 
In the Wharton-Ketchum case, experts swore positively as 
to the presence of poison in sufficient quantity to produce 
death; whilst others were equally certain that there was 
not a trace or symptom of poisoning. 
A striking illustration of the Ciceronian maxim, that 
“there is no theory so absurd but that some expert may 
be found to maintain it,” was exhibited in the Superior 
Court of New York in 1872. The case involved the right 
to use a bull’s head as a trade-mark upon boxes of mus- 
tard. One of the most eminent chemists in the city, on 
being called as an expert, testified that, by personal ex- 
periment, he knew that mustard contained eleven per 
cent, of starch. Professor Chandler of Columbia College, 
on being called by the opposite party to rebut this evi- 
dence, denied that mustard contained any starch at all. 
The case then went to the jury. The expert first called 
was not satisfied however, and he applied to the presiding 
judge for permission to make his experiments in the pres- 
ence of the court. Leave was granted. The mustard was 
ground in a mortar, placed in distilled water and heated 
over a lamp. The solution was then poured on filtering 
paper, the chemical test for starch was applied, and the 
result was a deep blue coloring, which seemed to demon- 
strate, without question, the presence of a considerable 
amount. Professor Chandler, on being recalled, expressed 
dissatisfaction over the first experiment. At his suggestion 
the chemical test was applied to a sheet of paper entirely 
free from the solution of mustard. The same blue color 
characteristic of starch was again exhibited; thus showing 
that the starch was not in the mustard, but in the paper 
upon which the experiment was performed. 
In addition to the serious conflict of authority, always 
sure to arise, wealth and self-interest are also significant 
factors in this system. If experts, with views which will 
sustain the peculiar theory set forth in a party’s complaint 
or answer, are not to be found in the vicinage, wealth, 
with its long-reaching arms, can send for them where they w. H. PHILIPS, M. D. 
are to be found ; whilst poverty, in its weakness, is obliged 
to rely for assistance upon incompetence or chance. 
Life and liberty are the dearest of man’s possessions. 
In the case of the criminal it is these that are at stake. His 
property, his own best exertions, the influence of friends, 
all stand ready to aid him in securing means of defense. 
Hence it is that eminent experts so often appear for the de- 
fense in criminal trials. Notwithstanding these experts 
stand alone in the advocacy of some extravagant idea, they 
are often able to impose this idea upon the court as the 
expression of sound scientific opinion. The prosecution 
does not feel the impetus that moves the defense. He 
often neglects to provide competent experts to use in rebut- 
tal. Sometimes he is surprised. But the law itself impedes 
him still more. A rigid cross-examination of the empyric 
as to the opinions of other men, known to be true scientists, 
might expose the imposition; this the law forbids. The 
opinions of competent experts might be taken by deposi- 
tion ; this the law does not allow. Finally, even if the 
prosecution do send for competent experts, the law fur- 
nishes no means with which to make proper compensation 
for services and expenses. 
It will be noted that these bizarre theorists, called to 
sustain some unique principle of defense, are not only now 
chosen on account of their pre-ascertained views, but they 
are also paid by the party calling them to advocate these 
views. Your attention has already been called to the re- 
lation which medical experts bear to the court. They are 
witnesses in no proper sense, but are in truth medico-legal 
advisors, whose office is to aid the court in determining 
what particular scientific principles are law in a given case. 
Then, if it be bribery to pay a judge to decide that certain 
false principles are law, how much less is it bribery to pay 
them for their services whose duty it is to assist the court 
in forming that decision ! 
It is a legal principle that opinions of experts must be 
founded on science, and that mere theories are inadmissible 
in evidence. Upon the judge rests the duty of harmoniz- 
ing the opposing views of experts, of weighing their testi- 
mony, of rejecting speculative theories, and of informing 
the jury of the scientific principles which they shall recog- 
nize in making up their verdict. But how can our judges 
properly perform this duty, without special training in TESTIMONY OF EXPERTS. 
medical jurisprudence? He who would produce harmony 
must know what harmony is. In order to harmonize the 
opinions of medical experts, he must himself be a medical 
expert. In'order to *weigh their opinions, he must have a 
standard in his own brain by which to estimate this weight. 
Not one judge in a hundred has this knowledge, this stand- 
ard, by which to judge the opinions of others upon a 
special science. The science of medical jurisprudence is 
progressive, not exact. What was regarded as theory 
yesterday, is regarded as science to-day. What is science 
in the judgment of some, is theory in the judgment of 
others. The judge who declares what is theory, declares 
what is not science. He who knows what is not science, 
must know what science is. Judges, however, do not pos- 
sess this knowledge. They are not medical scientists. 
Hence the gross absurdity of entrusting them with the 
duty of weighing medical opinions, and of determining real 
from speculative science. 
Under a practice like this, whereby such advantages are 
enjoyed by wealth, whereby no provision is made to obtain 
the true sense of the great body of experts, whereby ex- 
perts hired by the parties are allowed to advise the court 
as to the opinion which should be formed—no two cases 
can arise, however similar in fact and circumstance, in 
which the same principle of medical jurisprudence will be 
applied to each case. The determination of this principle 
will always depend upon three .ever-varying elements: 
ist, upon the character and standing of the experts sum- 
moned for the defense; 2d, upon the ability of the experts 
whom the prosecution has been able to subpoena; and 3d, 
upon the competence of the judge to harmonize opposing 
opinions. But, even supposing these elements constant in 
the two cases, it is in most cases impossible for even a 
competent expert to give a just and accurate opinion, 
owing to the rule of legal evidence which requires the 
facts, upon which the opinion is based, to be present- 
ed to him in a hypothetical form, by attorneys who 
are interested in suppressing material facts, or who 
are ignorant of the facts necessary to be presented in order 
to the formation of an intelligent and satisfactory opinion. 
Both medical and legal professions could not fail to be dissat- 
isfied with a system so barbarous in its conception, so unjust in 
its consequences. Prof. Chaille, speaking for the medical 16 
w. H. PHILIPS, M. D. 
profession, declares that “with the power of medical 
science crippled at the coroner’s inquest, then prostituted 
by the partisan opinions of incompetent experts, then per- 
verted by advocates, and at last, when emasculated of all 
vigor, submitted for decision to those unable to estimate 
its weight—what wonder that such gross misapplication of 
medical knowledge brings upon it that public contempt 
which belongs justly to methods so monstrous, and to 
which true medical knowledge is a helpless, pitiable and 
disgusted victim.” 
Lord Campbell says, “that skilled witnesses came 
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.” 
Chief-Justice Chapman, of Massachusetts, observes: “ I 
think the opinions of experts are not so highly regarded 
now as they formerly were ; for, while they often afford 
great aid in determining facts, it often happens that ex- 
perts can be found to testify to anything however absurd.” 
Judge Davis, of Maine, goes even farther: “ If there is 
any kind of testimony that is not only of no value, but 
even worse than that, it is, in my opinion, that of medical 
experts. ” 
Judge Redfield, of Vermont, also remarks that there is 
“ but one opinion as to the fact that this kind of testimony 
is extremely unsatisfactory. * * * We are more and 
more confirmed in our opinion, that the difficulty comes 
largely from the manner in which witnesses are selected. 
* * * If the State, or the courts, do not esteem the 
matter of sufficient importance to justify the appointment 
of public officers, * >:< * it is certain the parties must 
employ their own agents to do it, and it is perhaps almost 
equally certain, that, if it be done in this mode, it will 
produce two well-trained bands of witnesses, in battle array 
against each other, since neither party is bound to pro- 
duce, or will be likely to produce, * * * witnesses who 
will not confirm their views.” 
It was this opinion existing in the two professions which 
led to the founding in 1867 of the Medico-Legal Society of 
New York, an organization worthy of imitation in other 
States. The object of this Society is to assist in remedy- 
ing the evils of our present mode of practice, to create in- 
telligent public opinion upon the subject, and to supply, TESTIMONY OF EXPERTS. 
in so far as it can, the omissions of State legislation. It 
now numbers between four and five hundred distinguished 
physicians and lawyers, and owns one of the finest medico- 
legal libraries in existence. Much has been already done 
to improve the laws of New York in regard to experts. 
Its labors, if properly carried on, will doubtless eventually 
result in a procedure founded on justice and intelligence. 
England originated the voluntary system, and she and 
her colonial offspring have had a monopoly of its absurdities. 
Under the Roman law a system somewhat similar pre- 
vailed. The parties were allowed to call experts at their 
own option. But if the judge was not satisfied with the 
testimony, he could call experts (artis pariti) to testify im- 
partially, in regard to such physical laws and natural phe- 
nomena as he was not sufficiently acquainted with to pro- 
perly weigh the evidence produced by the contending 
parties. The canon law appears to have recognized a similar 
practice. The civil law became the law of France. But, 
unlike ourselves, the French failed to recognize the infalli- 
bility of their ancestors. The importance of competent 
and impartial expert testimony in judicial investigations 
was perceived at an early day. Fegislation was had 
in the Sixteenth Century, encouraging the teaching of 
medical jurisprudence. But not even the courts escaped 
the reign of corruption that attended upon the Bourbon 
rule. At the time of the French Revolution, the office of 
medical expert had become venal and hereditary. Since 
then, France has been most liberal in the encouragement 
of medico-legal science. Under the present practice, the 
voluntary element is totally eliminated. The judge, only, 
has authority to summon experts. None are competent, 
save those who have attended at least one course of lec- 
tures on medical jurisprudence, and have passed a rigid 
examination. Thus do they aim at avoiding incompetency 
and obtaining impartiality. Such a method of procedure 
is far in advance of our own. Yet it is bitterly criticised 
and denounced by the French themselves, on the ground 
that their judges are incompetent to make proper selec- 
tions ; that they are apt to give preference to their family 
physicians, and to practitioners of mere popular repute; 
and, on what is perhaps a better ground, that official pa- 
tronage is a thing entirely inconsistent with the judicial 
office. 18 
w. H. PHILIPS, M. D. 
We must turn for the model system to that of Prussia. 
Two centuries and more ago, what is now a great and 
prosperous Empire comprised a lot of insignificant little 
States. The master mind of the Prussian King conceived 
the idea of gradually uniting them under one great head, 
that would lend strength and dignity to all. The rapid 
fall of all governments based on force, convinced him of 
the utter futility of employing that element for his pur- 
pose. He determined that this new Empire should be 
founded on intelligence which should be thoroughly in- 
fused among the people and into every branch of govern- 
mental service. The verification of the German status is 
now complete. In the midst of great calamities and trials, 
by long years of hard work, under administrations eco- 
nomical to parsimony, he and his successors have devel- 
oped an educatipnal system, which for half a century has 
won the admiration of the world by its intellectual con- 
quests, and which, in the past ten years, has aroused the 
world’s wonder by its political and social triumphs. 
In Germany alone has medical jurisprudence received a 
proper estimate of its worth. It was introduced into the 
German Universities at their foundation, and made a part 
of medical education. The expert was made a government 
officer, holding his position because of his peculiar skill 
and fitness. The present organization is the result of con- 
tinuous legislation upon the subject since the early part of 
the 16th century. It consists entirely of medico-legal 
officials, and is divided into four divisions. The County 
Physician and County Surgeon constitute the first, the 
County Tribunal. They are required by law to be thor- 
oughly educated in medicine, surgery, and obstetrics, and 
to have a special training in medical jurisprudence. This 
training is certified to by examinations before a Supreme 
Medical Commission. The duties of the County Tribunal 
are two-fold. It is incumbent on them to investigate all 
medico-legal questions referred to them by the courts. 
They also perform the duties which in this country are 
performed by the coroner. Their appointment is continu- 
ous, and they owe it to neither party, but to the State. 
They make personal investigation of the facts in every 
case. Power is given them to take testimony. They may 
call experts as counsel if they wish, but these experts must 
have certificates, received from State examinations, of TESTIMONY OF EXPERTS. 
their skill in the specialty whose principles it is desired to 
apply. The facts and proofs, and the conclusions arrived 
at by the expert tribunal, are then shaped into a written 
report, which is carefully preserved along with the report 
of the subsequent proceedings had. So far as the court 
making the reference is concerned, this report is conclu- 
sive ; but the physician and surgeon may disagree, or the 
parties interested may be dissatisfied. To meet these 
cases, an appeal is made to the second division of this 
organization. This division consists of a medical commis- 
sion of from four to six members, and is somewhat analo- 
gous to our district courts. One such commission exists 
in every province. If dissatisfaction exists with the de- 
cision of this tribunal, an appeal lies to the third division. 
This is the Supreme Medical Commission, comprising 
men of national reputation. In the fourth division we find 
the Minister of Medical and Sanitary Affairs, who presides 
over the entire department of State medicine. 
We may demonstrate the difference between the two 
systems by an illustration : Suppose a criminal case in 
which moral insanity is set' up as a defense. Under the 
American practice, the expert gives his opinion as to there 
being such a thing as moral insanity. The judge deter- 
mines the degree of responsibility in one who is morally 
insane. The jury return a verdict as the fact whether the 
prisoner is insane or not. In other words, the expert ad- 
vises the court as to the major premise of the syllogism. 
The jury find the minor premise. The judge draws the 
conclusion, For example, the expert says: “It is my 
opinion that there is such a thing as moral insanity.” If 
the judge is satisfied with this opinion, and also thinks that 
moral insanity will free a criminal from responsibility for 
his acts, he lays down the major premise thus: 
“ All criminals morally insane are not responsible for 
their acts, and should be discharged.” 
The jury then lay down the minor premise in this man- 
ner: 
“The criminal undergoing prosecution is (or is not) 
morally insane.” 
The judge then draws the conclusion : 
“The prisoner is (or is not) discharged.” 
If either is wrong, the conclusion must be wrong. But, 
as has been before pointed out, it is impossible for the 20 
w. H. PHILIPS, M. D. 
jury to determine the fact, or the judge to determine the 
degree of responsibility resulting from the fact, unless they 
have become acquainted with the nature and phenomena 
of moral insanity through that study and observation 
which one or the other are sure not to have made. The 
Germans have escaped this absurdity by leaving the deter- 
mination of both major and minor premise, the determina- 
tion of scientific principles and scientific facts, to those who 
have made scientific principles and scientific facts a life- 
long study. To the judge is left only the drawing of the 
conclusion from premises prepared by the scientific tribu- 
nal—a duty which any one acquainted with the simplest 
rules of logic can perform. 
Critics, having in mind the old conflict in England be- 
tween the law and equity jurisdictions, may anticipate such 
another with the expert tribunals. But in practice this 
has not arisen ; nor is it likely to arise, any more than con- 
flict is likely to arise between courts and referees or mas- 
ter commissioners, or between legislative bodies and their 
committees. Science is the limited sphere in which the 
expert tribunal must move. Without, its acts would be a 
nullity; within, the courts have hitherto done little more 
than injustice. If a strong feeling is growing up against 
the determination longer of scientific questions by tribu- 
nals totally unqualified for the purpose, and to whose pro- 
cedure antiquity and custom alone lend any dignity, there 
can be but little doubt but that if scientific tribunals were 
to innovate by assuming to meddle with questions of law 
and ordinary fact, which in the nature of things they were 
unfit to pass upon, national conservatism and public con- 
venience would afford an impassible barrier to such an as- 
sumption. 
Such an organization as that of Germany recognizes the 
duty of government to employ every instrumentality that 
will secure justice to the citizen. It recognizes the full 
importance of the skilled and competent expert in judicial 
inquiries. It recognizes the fact that experts stand to the 
court in the relation of assistants. It therefore denies, to 
those who are interested, the choice of these assistants. The 
educational requirement renders the expert competent. 
His appointment by the State ought to render him impar- 
tial. His own knowledge will enable him to select compe- 
tent assistants, and to properly determine the weight of TESTIMONY OF EXPERTS. 
21 
evidence. The right of appeal furnishes ample security 
against injustice or mistake. Delays may be caused, 
it is true, but justice can afford to move slowly so long as 
it moves with certainty. Besides, it will be but a few 
years before all the main questions that can arise will be 
settled and precedents recorded in medico-legal reports. 
Judicial proceedings will thus be shortened, and a uni- 
formity obtained in the decisions of subordinate tribunals, 
which will more than compensate for temporary delays. 
The absurdities of the American method of procedure 
render its reform imperative. The only effective reform 
is to build anew. Its voluntary character should be taken 
away and itself made part of the machinery of government. 
When our State makes the demand, our medical schools 
will furnish an ample supply of competent medical experts. 
The change may be expensive, but there can be nothing 
more expensive than the injustice wrought by the methods 
now in use. Medical officers should be officers of the 
government, as are the judges whom they assist. They 
should be appointed for life, in order to secure impartiality. 
They should be rigidly examined, that competent men 
may be obtained. They should be well compensated, 
that men of ability may be induced to occupy the office. 
There should be a right of appeal, that mistakes may be 
corrected. The duties of coroner should be performed by 
men specially trained for the purpose. 
If our government should consider the science of medk 
cal jurisprudence and its application to judicial investiga- 
tions of sufficient importance to justify the establishment 
of a Department of State Medicine, these, to my mind, are 
some of the principles upon which it should be built. In 
such an event, we might expect to see the medical pro- 
fession freed from the unjust reproaches which have so 
often been heaped upon it, and the testimony of medical 
experts rescued from the disrepute into which it has now 
fallen. Then might we look upon the true medical expert 
as he has been ideally painted—he who vindicates truth 
by contributing to the ends of justice, who is disembar- 
rassed of all personal relations, who has no client to serve 
and no past partisan extravagances to defend, who will 
render his opinion as the advocate neither of another nor of 
himself; but who can speak as the representative of the sense 
of the special branch of science which the case invokes. 22 
REPORT OF COMMITTEE UPON COMPENSATION 
OF MEDICAL EXPERTS. 
The committee to whom was referred the subject of 
“Compensation for Services rendered by Medical Ex- 
perts,” have considered the same, and beg leave to re- 
port— 
1st. We find it to be a custom generally prevailing 
thoroughout our country, to employ the sovereign power 
of our State, through its judicial machinery, to order the 
attendance of physicians and surgeons upon the trial of 
criminal and civil cases, there to hear testimony and to 
give counsel and instruction upon such medico-legal ques- 
tions as may arise in the case. 
2d. We find there are no laws upon our statute books 
to provide for a proper compensation for such services. 
With but a single unimportant exception, the law pro- 
vides only for fees for ordinary witnesses. 
3d. The manifest injustice to medical experts, growing 
out of this neglected legislation, has seemed to justify the 
acceptance of a suitable fee, compensating in some degree 
for the loss of time and business, the expense and the 
value of the service rendered by the medical expert from 
the parties litigant or their attorneys. Hence the origin, 
and the apparent equity, of what may now be considered 
the established usage. 
4th. This results in bringing into the courts, voluntarily, 
two sets of witnesses, each impliedly under contract to 
render his best service in the interest of the party by whom 
he is paid. REPORT OF COMMITTEE UPON EXPERTS. 
23 
This naturally, and in the opinion of your committee 
very properly, tends to bring medical experts into disre- 
pute, to degrade the high character which their proper 
office should command, and in many cases to subvert the 
ends of justice. 
We submit that such legislation and such customs are in 
their very nature subversive of the very objects for which 
they were instituted, and ought to be speedily abolished, 
and a new system created which shall be based upon prin- 
ciples of equity and of justice to all concerned. 
In the opinion of your committee the State should pro- 
vide for the employment of a sufficient number of medical 
experts, whose competency should be secured by such 
rigid examination as would place their qualifications be- 
yond question ; whose impartiality and independence shall 
be secured by appointment for life; who should be officers 
of the State, as are the judges whom they assist. They 
should be well compensated, that men of ability may be 
induced to accept the position. There should be a right 
of appeal, that mistakes might be corrected and true 
science vindicated. There should be a department of State 
medicine, organized and put under their care, which, if 
properly managed, would secure to our people a return in 
value of tenfold the cost of such a system. 
These radical reforms cannot be accomplished by a single 
spasmodic effort; they must come as the growth of years 
and experience. 
In the meantime we would commend to such members 
of the medical profession as may be called upon to serve 
as medical experts, to decline any and all offers of compen- 
sation from parties litigant in advance, but to render such 
service as may be required, after which to make out and 
present for the approval of the court a bill for services 
rendered, based upon considerations of the value of the 
services, the time spent, and such other considerates as are 
usual in estimating the value of professional services. 24 
REPORT OF COMMITTEE UPON EXPERTS. 
These bills would in a large majority of cases be approved 
by the court, and taxed and collected as are other costs. 
This is the method by which the legal profession is com- 
pensated by the courts for services rendered as referees or 
master commissioners, and it has often been resorted to in 
the case of medical experts. 
Your committee would recommend the organization of 
a large committee, consisting of one or more members in 
each county in the State, whose duty it should be to take 
charge of the proposed reform, to secure the repeal of the 
present system and the building up of a new one upon its 
ruins, and especially to educate and secure an interest in 
the coming legislature upon this subject. 
Respectfully submitted 
W. H. 
C. P. Landon.