A REPORT TO THE SUFFOLK DISTRICT MEDICAL SOCIETY. 
Published, by vote of the Society, in the Boston Medical and Surgical Journal for Feb. 17,1870. 
The Committee of the Suffolk District 
ledical Society, appointed last winter, 
lith instructions to consider and report on 
io subject of 
the law proposed by the Committee, or of 
some other of a similar character, or allow 
the whole to go by default. Your Commit- 
tee would suggest that a copy of the law 
be entered in full upon our records for fu- 
ture reference. 
The Committee ask permission to lay be- 
fore the Society some of the arguments and* 
facts, pro and con, in reference to the whole 
subject of experts in courts of law. 
Let us suppose that in a civil case a ques- 
tion is to be brought before a court about 
which neither the judge, counsel nor the 
jury can know much. Moreover, it is 
so intimately associated with some peculi- 
arity of science, or of art, or of fact, that 
it would be impossible for either of these 
parties to learn much, if they can learn 
anything, upon the subject during the short 
period of the trial of any cause. Still further, 
there are causes for the proper elucidation 
of which a long series of scientific study or 
of experiment is needed. To meet such a 
case the following course is usually pursu- 
ed. Either party in the cause has the right 
to employ any one he may choose as expert. 
If the case involves large interests, the 
wiser and wealthier party generally en- 
gages a sharp-witted man of science, and 
tells him what it is desirable for science to 
prove in order that he may gain his point. 
Under such circumstances, however learn- 
ed or honest the expert may be, his mind 
will be inevitably inclined to bring all his 
energies to bear upon the idea of success 
for his employer rather than to learn the 
exact truth in regard to the entire subject. 
By study and experiment he may thus be 
enabled to bring a great amount of learned 
evidence, and apparently quite overwhelm- 
ing in behalf of his patron. But if the op 
ponent in the cause has been equally 
wealthy and wise in the world's ways, and 
has also engaged for his side of the question 
some scientific rival, there may be ar. 
equally scientific display on the other side. 
Between these two witnesses the minds of 
the jury are clouded rather than enlightened. 
They have not been trained to such studies. 
They do not see the fallacies that perhaps 
lie under both displays, and they at times 
seem to forget that self-interest has perhaps 
marred the testimony of both witnesses. 
The discrepancy between the two may be 
easily seen, but no light comes from them. 
The result sometimes is, that the jury ig- 
nore altogether the scientific evidence, an<L 
decide according to what some perso; 
call the dictates of common sense; 
others, adepts in the science involvec 
the question, style it the veriest nonsei 
All the while that this battle of the gi 
Medical Testimony and Experts, 
erewith present their final report upon the 
uestions, as originally submitted to them, 
nd as recently recommitted to them for a 
tore detailed examination. 
The Committee are fully aware of the 
nportance of the questions, and at the 
line time are conscious of the many and 
reat difficulties that surround the proper 
jnsideration of them. These difficulties 
ave of late years exercised the thoughts 
if some of the best minds in the medical 
nd legal professions. They have been 
iiscussed by individuals and by social sci- 
nce associations in Europe and America, 
t s very evident that some change must 
iventually be made in the present mode of 
ivestigating civil and criminal cases in- 
olving questions that require scientific or 
(killed witnesses to testify upon matters 
f science or art, and of which the court 
nd jurymay know little or nothing previ- 
us to the trial. The rapid advances 
lade by science and art require that ex- 
erts in these departments should be sum- 
loned in order to aid those who are finally 
3 decide the cause. As at present con- 
ucted, this custom of summoning experts 
hay actually lead to error rather than truth, 
'his is especially liable to occur in civil 
ctions, as we shall endeavor to show in a 
ubsequent part of our report. 
Under a vote of this Society, your Com- 
littee was directed to ask the American 
tcademy to appoint a similar committee, 
rith the idea of a joint appeal to the Leg- 
(dature for the enactment of a law upon 
fie subject. The Academy appointed the 
Ion. Emory Washburn, lion. Joel Parker 
f the Dane Law School, Prof. Horsford, 
1. B. Bigelow, Esq., and Dr. H. R. Storer. 
• After a long and ample discussion of the 
Ihole matter by this joint committee, and 
mid grave doubts whether any law would 
Jeet all the contingencies, it was unani- 
mously voted that Hon. Emory Washburn 
hould draw up a bill and present it to the 
udiciary Committee of the last Legislature, 
>nd urge its passage. This was done, and 
draft of the proposed bill is herewith ap- 
pended. Judge Washburn appeared be- 
mre the Committee and urged its adop- 
ion. It, however, never came to light 
fterwards. We know of no reasons for 
his, nor is it necessary for us to seek for 
ny. But it is for the Society to decide 
hether it will again urge the passage of 2 
is going on, no one hints aloud that the 
strong element of self-interest is perhaps 
underlying science and really warping both 
witnesses. Both should therefore be treat- 
ed as common witnesses, and be closely 
cross-examined. To have this performed 
effectually it should be done by their peers, 
viz., by experts trained in the same science 
or art, but speaking through the mouth of 
the judge or either of the advocates. Ilence 
it would be most appropriate that the judge 
should have the right to summon men skill- 
ed in this special training, either thus to 
question others, or to give their own 
opinions upon the matter in dispute. Such 
men would come untainted with the breath 
of suspicion of favoritism, or of self-in- 
terest, leading them to favor one side or 
the other of the question in dispute. If 
this be true, should not the Legislature, 
pro bono publico, assume the right to re- 
quire of any person learned in any branch 
of knowledge to give his opinion, either in 
open court or upon written testimony, and 
thus enable the judge and jury to act un- 
lerstandingly in the premises? This is 
what the law, suggested to the last Legisla- 
ture by the Joint Committee of this Society 
and of the Academy, proposed to give to 
the judge. 
The preceding remarks on the clashing 
of the testimony of experts in any civil 
case may not apply exactly to the pro- 
cesses usually pursued in a criminal cause. 
In this latter case the expert called by the 
State is supposed to be, and really ought to 
be, above the suspicion of favoritism ; for 
the theory of such a trial is, on the part of 
the State at least, to get exact truth and 
o administer exact justice. Ilence, when 
i learned man is called upon by the State 
Attorney to investigate the facts, he has no 
reason for wishing to arrive at one conclu- 
non rather than another. But even in 
criminal cases very discordant opinions are 
sometimes advanced. The immediate cause 
of the raising of the present committee was 
the remarks made by the presiding judge in 
a criminal trial. It is undoubtedly true that 
under the present initial processes of the 
law, matters for examination may be placed 
in the hands of an ignorant or unreliable 
so-called expert by some distant country 
magistrate, policeman, or coroner, entirely 
unfitted to make such selection, before the 
affair in question comes to the knowledge 
'/en of the Attorney-general or any com- 
ent law officer. This necessarily brings 
j the case at trial a person who should 
ve no connection with it, or may even 
vent its investige 'on by other and pro- 
--rol]ab» •arsons. In other 
countries, only those authorized officially 
by the courts or high authorities can be 
employed in the investigation of criminal 
cases. 
Among the objections to giving this 
power to any judge may be cited the fok 
lowing:- 
It is contrary to the usual custom in out 
community to compel a man to testify to 
the opinion he may hold on any subject. 
That opinion is considered as something 
sacred, and which the State has no right 
to demand of any one. It is his property, 
and as such no one, not even the State, has 
a right to take it from him. But is this as- 
sertion really tenable, when considered in 
the light of the rights usually claimed by 
the State ? The sovereign has always as- 
serted, and has now gained the right to 
demand of a man, the free confession of all 
of his knowledge about certain facts bear- 
ing upon matters important to the public 
welfare, and about which the witness is 
supposed to know what others do not. The.1 
State can take the property of any one forj 
the public good. During the late rebellion! 
even life itself was often taken for the 
safety of the Republic. Your Committee 
cannot see how any rights are invaded 
more in the case of a learned man, who is 
required to give his opinion merely in a 
certain cause, than in another case where ; 
life itself is taken without scruple. It is ' 
true that the necessities of the attending 
circumstances may be undoubtedly greater 
in one case than in the other. Neverthe- 
less, human life may be at stake in both 
cases, and if the argument hold good for 
one it ought to hold for others where per- 
haps human interests alone are at stake, 
inasmuch as they become at times quite a.f j 
important as life itself. 
The payment of such scientific or learned I 
experts, when summoned by the judge t< J 
give. their opinions and render essentia!] 
service to the State in its courts of justice j 
should be proportioned to their high skil 
and to the time and trouble involved, ar 
subject to the approval of the Court th / 
should summon them. 
If such an aid should be granted to th I 
Court in any case where hired opposin I 
athletes in science present their opposit I 
opinions and reasoning, or in crimina.1 
cases, where such high advice is needed, ift* 
is evident that such are and will be still 
more necessary in those grave cases wher I. 
no expert has been called, or in those 
which individuals claiming to be expert*- 
but without a single qualification justifying 
their assumption of that title, may give c\]f 
deuce and may state opinions whollv eri fn 3 
neous, whereby the property and possibly 
life of a citizen may be endangered. In 
one or all of these contingencies it would 
?eem most important for the sake of justice 
-hat the Court should have the power to 
jummon any one it may choose to aid in 
;he determination of a case. 
Your Committee, therefore, cannot but 
regret that no provision has been made by 
the Legislature for this purpose. 
The Committee deem this a fitting occa- 
sion for them to bring before the members 
of the Profession certain facts connected 
with the present mode of conducting trials, 
and at the same time they will take the 
liberty of suggesting some evident rules 
of conduct, which, as it seems to your 
[Committee, might well be followed by any 
•professional man when called upon the 
(stand. 
A medical witness would do well to re- 
member, 1st, that no one has a right, as the 
law now stands, to ask an opinion of him. 
2d, that, if asked for an opinion, he may 
refuse to give it; and 3d, that in order to 
throw doubt on his testimony the opposing 
counsel will, at times, endeavor to entrap 
him into the expression of an opinion, and 
afterwards, by subsequent questions, to 
lead him to absurd conclusions, whereby 
his testimony, although strictly accurate, 
may be made to appear wrong in the eyes 
of the jury. 
4th. In the statement of facts your Com- 
mittee believe that it would be well to be 
as brief as is consistent with clearness. 
Moreover, the witness should, as far as 
possible, avoid all technical language. For 
example, a witness when about to instruct 
a jury will lose credit for clearness of state- 
ment, and may darken the minds of the 
ivhole court, by telling of the scapula instead 
t>f the shoulder-blade, or using clavicle for 
hollar-bone, sternum for breast-bone, &c. 
5th. If he be not sure that he is really an 
-Xpert in the matter in hand, he should be- 
i are of going upon the stand at all. If he 
so, he deserves and probably will get a 
anvere castigation from opposite counsel, 
mid he has no right to ask sympathy from 
nig professional associates. He cannot 
slame lawyers for even apparent rudeness 
h their attempts to prove him before the 
;nry to be the ignoramus he really is. 
I'6th. A medical man should beware of al- 
' wing himself to be called into court save 
■ 'an independent witness, to give evidence 
.1 |on " the truth, the whole truth, and no- 
h ing but the truth." Your Committee 
h tow of no act of villainy greater than that 
a scientific man commits when he 
voluntarily takes the witness-stand, and 
then fails to act upon this noble rule. Yet 
this has been done in Massachusetts, and 
may be done hereafter. If on cross-ex- 
amination the perjured scientist have suffi- 
cient coolness and the opposing lawyer lit- 
tle wit, he may escape detection, as he has 
escaped,bcfore. Under the present law the 
Court cannot summon any one of his peers 
to catch him in his wordy windings, and 
he may thus escape the righteous indigna- 
tion that would arise were his fraud dis- 
covered by the community he thus out- 
rages. Such men actually at times may 
pervert justice. As pertinent to these re- 
marks the Committee would cite the follow- 
ing remarks made by the present Lord Chan- 
cellor of England, in reply to questions put 
to him by the Committee on State Medicine 
of the General Medical Council of England.* 
" Every witness should eschew altogether 
the notion of partizanship. He should be 
ready frankly and unreservedly to give his 
opinion, regardless of how it may tell. He 
is there not as an advocate, but in order to 
inform the court and jury according to his 
best judgment." 
This is undoubtedly true doctrine. Your 
Committee believes that a really truthful 
expert will be fully alive to the honorable 
and important position that he will hold. 
He will come prepared not merely to tell 
the whole truth, but to see that none of it 
is hidden through his evidence. He will be 
careful to prevent if possible any question 
being put to him which by answering cate- 
gorically may hide a part of the truth, and 
if he perceives that counsel have that aim 
in view he will answer with sufficient de- 
tail to reveal the truth in its wholeness. 
He will endeavor that no false interpreta- 
tion shall be put by counsel on the facts pre- 
sented by himself or others. And if oppor- 
tunity be afforded him he will explain all 
facts in such a way as to make the truth 
appear in the fullest light. 
7th. The conceit and desire for self-glori- 
fication of some experts produce evil re- 
sults. They deliver themselves more like 
professors from their chairs of instruction, 
and sometimes talk with less precision than 
is required in a court of law. Such exhibi- 
tions are apt to afford ample opportur 
for subsequent criticism on the par 
counsel. 
8th. Some while on the stand seem 
forget the great difference there is between 
the statement of a fact or of a series of 
facts, and the inferences that may be made 
* Med. Times and Gazette, Nov. 13.1869. 4 
from these facts. The facts should be giv- 
en, the inferences may be left to the wisdom 
of the court or jury to make. If the wit- 
ness makes them he does so at the risk of 
severe criticism. 
8th. Some really scientific men are so 
prejudiced that the simple fact that another 
with whom they may have had some pre- 
vious antagonism has expressed an opinion, 
will induce in their minds a tendency to a 
belief precisely the reverse of that given 
by the opponent. Nothing can more effec- 
tually prevent one from arriving at exact 
truth than this mental quality, if brought 
to the witness stand. 
There is one other topic on which your 
Committee feel called to make some re- 
marks-viz., the relations of the lawyer to 
the expert. While human nature exists as 
at present, it may be feared that we shall 
never arrive at perfectly satisfactory re- 
sults, even if we get these wisest of men 
for experts. However wise and truthful 
the witness may be, he cannot be sure 
while on the stand of not meeting unwise 
or unprincipled lawyers. One of the sove- 
reign ideas of the law is that there are al- 
ways two sides to every question, and an- 
other is that it is the bounden duty of each 
advocate to present his side of the question 
in the best light, and if possible in a better 
light than that of his antagonist. If, there- 
fore, in conducting an important trial, it 
appear obvious to an able but unprincipled 
lawyer that he can gain any advantage by 
brqjvbeating a witness, he will be very 
likely to try that method. If by any trickery 
of words he can make his opponent's wit- 
ness stumble, he will be likely to try to 
make him do so even at the expense of 
truth. Nay, more ; we fear that it must be 
admitted that some lawyers who rank high 
as gentlemen and men of honor in the com- 
munity, and who, in their dealings with 
men in common society, would not dare to 
use words of insult to others when off the 
stand for fear of personal violence from 
those thus attacked, will within the sacred 
precincts of a court of justice indulge at 
times in remarks worthy of Billingsgate. By 
insult and sharp and repeated questioning, 
or by inuendo they will endeavor so to con- 
fuse or irritate a witness that perhaps some 
mky admission will be made by him. 
is all that is wanted, and the expert 
<. be made to appear ridiculous, and his 
stimony may thus become of little or of 
no avail in the the jury. On such 
an occasion, therefore, it is of paramount 
importance for the witness never to lose 
his self-possession, and if he can give the 
retort courteous to the advocate it will be 
fortunate. And above all else he must be 
sure of not going in his evidence beyond 
the bounds of strict truth. Preserving that 
as his basis whereon to stand, he may defy 
all such attempts to upset his testimony. 
If he find himself pressed by repeated and 
what he perhaps may think absurd ques- 
tions, for the obvious purpose of confusing 
and degrading him, he may appeal to the 
Court, or decline further speech, ever re-1 
membering that it is better for truth's sake \ 
for him to avow ignorance enough to be, 
unable to reply to unwise questions, and. 
decision of character and self respect suffV 
cient to enable him to refuse to answer one 
that is put for the purpose of confusing him. 
Such a witness will command the respect 
and close attention of all the court. The 
ungentlemanly lawyer will not dare to at- 
tack him for fear of equally sharp replies 
to any questions offered. The honorable 
advocate will not wish to attack him.. 
The judge will greet him as a co-worker 
and as a most efficient aid to himself in 
the careful and thorough unravelling of 
all the intricacies of the case in hand,' 
and upon the proper and just investi- 
gation of which, perhaps, depend all the 
solemn destinies of life or death of a human 
being. 
To establish a system whereby such an ex- 
pert could be summoned by a court to aid it 
in its high duties is an object devoutly to be 
wished for by every one. Whether we shall 
ever get a law establishing such a system 
remains yet in doubt. Wiser men in the 
eyes of the community than the Joint Com- 
mittee of the two Societies, viz., the Judi- 
ciary Committee of the last 
have apparently decided that nothing cat 
be done towards obtaining it. Your*Co 
mittee do not believe that all wisdom 
centred in the Legislatures of the pa 
They hope much from the future. Wh< 
ever a great evil exists, then and the 
close beside it, though invisible for a tine 
lies undoubtedly its antidote. We mu 
look for it, however, or it will not be foun 
Meanwhile, we have only to discuss i 
questions having relations thereto in t. 
full conviction that under the light of li 
man reason we shall eventually obtain : 
and more than we now ask for. 
With these remarks the Committee at 
to be discharged from further considerate 
of the subject. 
Henry I. Bowditch, j 
Henry W. Williams, Com. of 
F. Minot, Suf oik 
George Derby, Dist. Me 
R. M. Hodges, Societv 
James C. White,