EXPERTS AS WITNESSES. 
A LECTURE 
DELIVERED BEFORE THE 
l\ civ |Jorls j$|etlko- 
— BY — 
HORACE BARNARD, 
FEEftUAHY 26, 787/,-. 
o *? 1* : 
RUSSELL BROTHERS, PRINTERS, 
17, 19, 21, 23 Rose Street. 
1874. EXPERTS AS WITNESSES. 
A LECTURE 
DELIVERED BEFORE THE 
ck- flarlt J,l|eilico-||.cgal RocLMii, 
— BY — 
HORACE BARNARD, 
FEEHUsHtY 26, 1S7&. 
a*w S«eU: 
RUSSELL BROTHERS, PRINTERS, 
17, 19, 21, 23 Rose Street. 
1874. EXPERTS AS WITNESSES. 
HORACE BARNARD. 
Dr. Eeid, in liis u Inquiry into the Human Mincl,” uses these 
words: u The wise and beneficent Author of nature, who in- 
tended that we should be social creatures, and that we should 
receive the greatest and most important part of our knowledge 
by the information of others, hath for these purposes implanted 
in our natures two principles that tally with each other. The 
first of these is a propensity to speak the truth, and to use the 
signs of language so as to convey our real sentiments.” In this 
the learned Doctor is unfortunately at direct issue with another 
equally renowned philosopher, at least so far as regards the use 
of language. Possibly, from a realization of the existence of 
other ideas on this subject, which hake also received expression 
in the teachings of the Church of Calvin, the Doctor is not slow 
to qualify his battering estimate by somewhat humiliating con- 
fessions. It is natural to speak the truth, and it is unnatural to 
lie, but it is a result of the ease of the one and the difficulty of 
the other. Speaking truth is as agreeable as taking our daily 
food, but falsehood is as nauseous as taking physic. Now, plea- 
sant as it is to consider our nature as being what the Doctor de- 
scribes it to have been in the beginning, human experience has 
more than verified his apprehension that u there may be, indeed, 
temptations to falsehood which would be too strong for the 
natural principle of veracity, unaided by principles of honor 
and virtue.” How to afford it that aid, so that men could in- 
dulge in safety their other natural propensity to credulity, has 
been a source of anxious study to men of all ages of which we 
have any record. It would not be possible, if proper, to even 
sketch these various efforts, which, one and ail, recognize maifis 
fearful declension from that state of moral elevation and equi- 
librium so happily described in the inquiry. It will be quite 
sufficient for our present purpose to devote a little space to that 
method which we have received from our ancestors, and which 
it is our duty to hand down unimpaired, if not improved, to our 
children. 
This method of evoking from witnesses, upon a question of dis- 
puted fact, such truthful utterances as to warrant reliance, is 
such as, we may well conceive, would recommend itself to a 
brave, liberty loving race. It is to compel them to testify opeidy 
and publicly, and under the sanction of oath, in such manner 
that their utterances can be sifted by those interested to ascer- 
tain the truth of their statements. Nothing being admitted but 
what could be openly avowed and shown, the trial per pais, or 4 
by the jury, taken from the people and sworn to impartiality, 
naturally recommended itself to all the northern nations as the 
fairest as well as the best mode. It certainly calls into exercise 
those sentiments of honor and virtue, or courage, which we 
have seen are needed to protect our principle of veracity from 
the temptations to falsehood. Coupled with the comparatively 
modern privilege of representation by counsel learned in the 
law, and the wide range and power given to cross-examination, 
there would seem to be but slender chances of its failing to attain 
its object. Where it has failed, the cause of the failure will be 
found in the moral condition of the community from which the 
jury is drawn. Of this they are the true representatives, now 
as formerly, neither rising above it nor falling below. If, there- 
fore, we find that certain acts, of the commission of which there 
can scarce be doubt, are lightly treated if not wholly condoned 
by the verdicts of our modern juries, we should apply our cen- 
sure to the source of the evil in the lax moral tone of the 
community, or find an excuse in the manner in which the tes- 
timony had been presented. Regarded originally as the safe- 
guard of the subject or citizen from the oppression of power, the 
jury is unfortunately itself subject, only too much, to the control 
of popular opinion. Against this danger, in turn, devices have 
been adopted (and an oath is administered), to the end not only 
that the truth of the statements made to the jury may be tested 
and determined, but that they shall true verdicts give according 
to the evidence. Hence the duty of the Judge presiding at the 
trial to exclude from their consideration, in former days, the 
testimony of interested parties, that they might not only be re- 
quired to pass upon the utterances of impartial witnesses; and, 
now that this barrier against temptations to falsehood has been 
swei>t away, the existing duty of excluding from their consider- 
ation statements made on hearsay, and everything which cannot 
be reduced to statements of fact on positive knowledge. Of the 
manner in which this judicial duty should be performed, what 
should be admitted, and what excluded, and of the little effect 
which the neglect of it should produce on the minds of an ideal 
jury, I cannot better explain than by the following extracts 
from u Phillips’ Golden Rules” for their guidance : 
“An honest juryman should suffer death rather than consent 
to any decision which he feels to be doubtful or unjust, or which, 
in his own private judgment, is not warranted by clear and un- 
controvertible evidence. 
“ Every juryman should be jealous that no other opinion than 
his own directs the decision; for his office would be a mockery 
on himself, on the parties and on his country, if his decision 
were not the result of his own unbiassed convictions. The jury- 
man who, ignorant of his duties, is inattentive to the progress 
of a trial, and decides on the suggestions of others, betrays his 
sacred duty, and is himself unworthy of the privileges of the law 
and of the protection of justice. “Ill deliberating1 oil tlie verdict every juryman is bound to 
think for himself, to give his individual opinion freely and boldly, 
and to bear in mind that it is the sole and entire object of the 
institution of juries, that every juryman for himself should de- 
cide according to his own judgment on the points at issue.” 
Having thus laid down these cardinal rules for the guidance 
of the jury in forming their verdicts, he exhorts them to guard 
against popular prejudice, the insidious sophistry and daring 
artitices of counsel, and against undue influence in whatever 
quarter it may arise; and to decide only on an abstract and cool 
consideration of the proved facts and the positive evidence of 
credible witnesses. 
When one reads rules for conduct like these, a vision of the 
Golden Age arises. If the jury, who are to be taken from the 
mass and fairly represent the people, are capable of appreciating 
the nobility of their duty, and have the courage and ability to 
perform it, there would seem to be no need of the Judge to pro- 
tect them from the insidious sophistry and daring artifices of 
counsel, or undue influence whatsoever. The people among 
whom such juries are common, scarce need their assistance. 
Unfortunately, however, the moral tone of mankind has not yet 
risen so high as to render obsolete the ninth commandment of 
the Decalogue, or to destroy the necessity of insisting upon the 
well considered rules of evidence. The insidious sophistry and 
daring artifices of counsel have not wholly failed of a market. 
Increasing wealth has brought in its turn increased luxury, 
with its attendant passion for display, and the need of great 
and greater means for its gratification, with less and lesser 
power of resisting temptation. The ordinary struggle of life has 
grown to be a competition so keen as to present the only alter- 
natives of success or destruction. What wonder is it, then, if 
we find the Courts invaded by the parties to this struggle, and 
the attempt, too often successful, made to bend their time-hon- 
ored rules to the advancement of selfish interest ? 
I have described the tribunal, in the words of Phillips, such 
as it ought to be, but when I add that it is of and represents 
the people, subject to like passions and sharing in their short- 
comings, it will be apparent that a great privilege is accorded 
to that witness, who is to such a degree absolved from the ordi- 
nary requirements of law as to be permitted to offer it his 
opinions with authority. This is the exceptional power of the 
expert, and it is mainly in his character as a witness before a 
jury that I propose to consider him. Were he an exceptional 
man the inquiry might be unnecessary, but he certainly is not. 
It is evident that in a case in which the nature of an invention, 
science, or other mystery is involved, the mere narration of the 
technical terms thereof would be of small aid to an ordinary 
jury in forming their verdict, and it is equally plain that any 
explanation or translation thereof would be perfectly right and 6 
proper. This, from the necessity of the case, is the proper 
province of the man of superior skill or experience therein, or— 
as we term him—of the expert. From this simple duty, and 
the correlative power of informing the jury of the proper nature 
and relation of facts otherwise proved to them, has been derived 
the custom of admitting his opinions in defiance of the ordinary 
rule. 
It would seem from our experience that it is not in social dif- 
ferences only that explanations are dangerous. The recurrence 
to the “ hypothetical case” as a means of restraining the expert 
from assuming directly all the powers both of judge and jury is 
an after thought, is a weak invention, which has, if it has done 
nothing else, stimulated the inventive powers of counsel. Be- 
tween the testimony of experts and the sophistry of advocates 
the results which one might expect from the observance of the 
Golden Rules of Phillips have hardly been reached. Too often 
have verdicts been but the record of the interested opinions of 
experts, shocking the sentiment of the community from which 
they have been drawn. 
The frequent recurrence of such results, following the admis- 
sion of expert opinions as testimony, would seem to point to the 
propriety of either remodelling our system of trying disputed 
questions of scientific fact, or the exclusion of expert opinions 
from the jury. The advocates of this latter measure, daily 
growing more numerous, are met by the assertion that there is 
a necessity for their admission—that otherwise there would 
often be a total failure of proof. Without adopting either side, 
or admitting that opinions can be called proof in any sense, let 
us inquire a little into this excuse for their admission. 
As it will not be contended that merely theoretical opinions 
should be admitted, we have only to deal with those which are 
founded on fact (and medical books being excluded as evidence, 
in that direction at least)—on facts ascertained by personal 
observation and study. When, therefore, under the present 
system an opinion is admitted, it is either preceded by proof of 
qualification as expert, or tested to that extent by cross-exami- 
nation, by either of which the facts are brought out on which it 
is founded. The opinion is reduced, therefore, by analysis to a 
result of an exertion of the memory, comparison, and reasoning 
powers of the expert witness. In regard to this, the highest 
court in our State (in Newell vs. Doty, 33 N. Y., 1)4) has decided 
that a question calling for such an exertion is not allowable. 
Apart, however, from the “authority” cited, why could not the 
witness have testified to these facts '? If the witness was con- 
fined to a simple narration of his knowledge, the counsel quali- 
fied to ask the question could, doubtless, as well exert his rea- 
soning powers in a fair, open argument, the soundness of which 
could be maintained or overthrown by his opponent. Surely, 
therefore, in the interest of fairness, it will not be contended 
that the witnesses should be allowed to argue the case by way 7 
of testimony under plea of necessity, and an argument on facts 
is all that a well founded opinion amounts to. 
In the case of Carter vs. Bolin the suit had been brought to 
recover certain insurances on a trading fort in the East Indies, 
and was defended on the ground of concealment of material 
facts from the insurers, contained in two letters of the assured. 
On this point—of the effect which those letters would have pro- 
duced—the defence offered the testimony of the broker as an 
expert, u that in his opinion those letters ought to have been 
shown or the contents disclosed, and if they had been the 
policy would not have been underwritten.” On this Lord 
Mansfield says: u Great stress was laid upon the opinion of 
the broker, but we all think the jury ought not to pay the least 
regard to it. It is mere opinion—which is not evidence. It is 
an opinion after an event. It is opinion without the least 
foundation from any previous precedent or usage. It is an 
opinion which, if rightly formed, could only be drawn from the 
same premises from which the Court and jury were to deter- 
mine the cause, and therefore it is improper and irrelevant in 
the mouth of a witness.” 
This case was one relating to insurance law, which, as it 
involves in the formation of the bargain for insurance the cal- 
culation and estimation of future risks, would seem to afford 
proper ground for the operation of expert opinions. We have, 
nevertheless, seen it excluded by such a leader in the law that 
no man may hesitate to follow in his footsteps. That it is still 
admitted is true, but that there is any necessity therefor I am 
bound to deny. Let us look at a few instances without discus- 
sion : 
1. An expert machinist can opine that a machine is not made 
in a workmanlike manner (Curtis vs. Guuo, 2G H. Y., 24G); that 
the principle of two machines is the same (Barrett vs. Hall, 1 
Mass., 470). Manner of building a bridge (16 N. Y., 158). 
2. A medical man may give his opinion as to the permanency 
of injuries (Buell vs. X. Y. C. It. It., 31 H. Y., 314). 
3. Attesting witnesses as to testator’s mental condition at 
the time of the execution of his will (I)elafield vs. Parish, 25 
N. Y., 9-97). 
The opinions of the medical experts—not under oath in this 
case—were regarded by the Court, as “ valuable disquisitions,” 
instructive to the Court, but not evidence. That they are pre- 
cluded from forming their decision, by law, from anything but 
facts sworn to in a legal manner. Judge Selden, however, in 
his dissenting opinion, holds that “ when a physician, from per- 
sonal observation or an authentic description of the symptoms 
of a case, has arrived,” etc., his opinion is received in evidence. 
As far as the opinions bear upon the medical symptoms of the 
case, they are to be regarded as the opinions of experts; but as 
far as they rest upou testimony as to mere want of intellect, 
they are no better than the opinions of ordinary witnesses. 8 
4. A medical man conversant with the disease of insanityr 
having had prior observation of the habits, conduct and ap- 
pearance of the prisoner, may give his opinion as to the sanity 
or insanity of the prisoner (People vs. Lake, 12 N. Y., 363) ; 
though it is doubted, on principle, whether he can after only 
hearing the testimony; he may be asked, under cover of the 
hypothetical case, the same question in the main—he certainly 
cannot on a part of the testimony (see post, Sanchez vs. People, 
22 N. Y. 154). 
Omitting the thousand others, these are enough to show that 
the expression of the opinion can be obviated by narrating 
experience, and that the real reason for their admission at all 
is the supposition that labor is saved thereby. If, therefore, 
we cannot find a sufficient basis for the plea of necessity in in- 
troducing well founded opinions, it is not likely that we will 
find sufficiently good grounds in the relief which it brings to 
the Court as a seat of judgment. As now introduced the 
experts who give opinions are produced by one side or the 
other, and the jury, who listen to the final charge, cannot help 
perceiving that it is often dictated by the witnesses. Such 
cases so decided are not, and ought not to be satisfactory. In 
one shape or another they rise until they reach their final rest 
in the Court of last .resort, or the utter exhaustion of the 
suitors. 
In that class of causes which relate to inventions, the duties 
of the expert are so clearly defined in the theory, at least, of the 
law, that they would seem to be, at last, in their proper position 
as aids to the Court in instructing the jury. It is the province 
of the Court, in patent causes, to determine what is intended to 
be patented, the certainty of the specification, so as to entitle 
the invention described to patent, and, in short, to decide what 
the patent is for and whether it is valid. The Court is to instruct 
the jury as to the meaning of the specification and the legal 
construction of the patent ; but when there are terms of art in 
either which need explanation, or other surrounding circum- 
stances which affect the meaning of the specification, these form 
a qualification in the instruction which calls for the assistance 
of experts. They are, from their experience, to explain the 
terms of art and surrounding circumstances. The statutes re- 
quire that a specification should so describe an invention that 
those skilled in the art, etc., may be able to use the same. Con- 
sequently, experts may, very properly, explain these terms, and 
show whether the invention is practically useful. Of course, if 
the Court possessed the requisite skill, this aid would be both 
unnecessary and improper; but until that hope of inventors—a 
proper tribunal for the trial of patent causes—is organized, we 
must be content with what we have. 
From this short sketch of the duties of the Court and the ex- 
perts, one would scarcely expect that there could be more than 
one opinion in a patent cause—that of the Judge, given to the jury. Let us glance at the facts. Inventors are numerous, 
courts few and time precious; lienee, a class of men lias arisen 
who have become professional experts in patent suits, and who 
command a rate of compensation which may well excite the envy 
of less fortunate men. It may be, therefore, only envy which 
inspires the suspicion that the nature and manner of their em- 
ployment—not to mention the pay—tend to warp their judg- 
ment. Whatever the reason, the fact is well known that there 
is scarce a patent cause brought into court which is not prose- 
cuted and defended by means of expert opinions on both sides. 
[ cannot better illustrate this curious fact than by repeating, 
as nearly as possible, the words uttered by one of our most dis- 
tinguished advocates in open court. Referring to the immense 
heap of expert testimony introduced into the cause, and then 
piled up before his antagonist, he said, u That he would not 
have the slightest difficulty in furnishing an amount equal in 
bulk and quality which should contradict it flatly. I know,” 
said he, u two brothers, experts by profession, of high reputa- 
tation and acknowledged skill, one of whom 1 have examined 
on the direct and the other on the cross-examination, in the 
same suit on the same matter, and in relation to the same state 
of facts, and 1 have received from them diametrically opposite 
opinions thereon.” The gentleman whom I have quoted is a 
man of great ability but also of equal charity. Doubtless, 
therefore, he would join his professional brothers in the regret 
that the laws of mechanics, and what are called the exact sci- 
ences, are so unsettled as to produce such diverse opinions. 
These opinions, such as they are, are submitted under a very 
wide construction of the statutes already referred to. They are 
given under oath, and being ordinarily taken in form of deposi- 
tions, are subject to the close scrutiny of prolonged cross-exam- 
ination. If sound, this develops the facts on which they are 
founded, and, at the same time, would seem to take away all 
reason for their admission—since, as has been stated, the Court 
is bound to pass only on facts, and the formation of the effective 
ruling opinion is the province of the Judge and jury. The allow- 
ance of them on one side begets a necessity for the production 
of counter opinions on the other; and the manner in which this 
is at present conducted inflicts a wrong upon the public. Few 
inventors are rich enough to afford one of these expensive con- 
tests. Either, therefore, their inventions are abandoned, or 
they pass for a trifle into the hands of some powerful combina- 
tion, which is thereby enabled to inflict all the mischiefs of a 
monopoly upon the people. 
This cursory glance at the confusion which often arises in suits 
involving the application of mere mechanical principles, from the 
contradictory testimony of costly experts as witnesses, is enough 
to satisfy a reflecting mind of the danger which attends their 
unrestrained use in cases less capable of exact demonstration. If 
great wrong and injustice can be done in matters capable of ma- 10 
terial proof, what may not happen in cases involving the mys- 
teries of sciences not yet fully explored, and which are professed 
by different and conflicting schools’? The testimony of the 
former class, known to have been paid for by the party produc- 
ing it, may be weakened, if not destroyed, by making manifest 
its partisan and disingenuous character; but how will we meet 
the testimony of experts belonging to an honorable profession, 
and deserving, by their private virtues, of the respect of all ? It 
is not to be supposed that such men, under the restraining in- 
fluence of their own honorable character, and especially when 
under oath, will deliver opinions in which their own faith can 
be shaken—and it is not for the purpose of restraining such ex- 
perts from the utterance of intentional falsehood that the strict- 
est rules of evidence should be invoked ; but when we recall the 
lessons of experience, and bear in mind the diversity of opinion 
which has always existed, the conflicts of the schools, the pro- 
verbial disagreement of doctors, and the imperfect and unsettled 
condition of the science of medicine itself, does it not seem a 
little hazardous to admit (see People vs. Lake, supra) the opin- 
ion of a medical expert as testimony in cases involving life and 
death ? Did our system admit of the rendering of Scotch ver- 
dicts of “ not proven,” one objection to their admission might 
be removed by the instruction of the Judge to the jury to limit 
their verdicts in that manner, where their decision depended, in 
any degree, on the opinions of experts. But with the necessity 
of deciding positively one way or the other, it would seem much 
better to cling to the well established rule of requiring facts, 
and to reject every opinion which cross-examination could or 
could not reduce to a concise narration of experience. It is cer- 
tainly the safer rule, and more accordant to the spirit of our in- 
stitutions. 
The principle of our criminal law that the prisoner should 
have the benefit of the doubt, and that it is better for the com- 
munity, in sustaining their respect for law, that ten guilty 
persons should escape rather than that one innocent person 
should be punished, would seem to demand the exclusion of all 
testimony which, like opinions—even of experts—failed in the 
element of certainty. With us the fate of the accused is to be 
decided by the testimony of credible witnesses to positive facts 
—and it is for the jury alone to form an opinion from them when 
so proven, and yet the books are full of cases in which this 
testimony has been allowed. 
In that of the People vs. Lake, physicians, as experts in 
insanity, were in the first instance allowed to give their opinion 
on the sanity of the prisoner after only a partial hearing of the 
testimony, and the accused was convicted and sentenced. Re- 
versed as this sentence was by the Court of Appeals, although 
the Court doubted w hether medical witnesses ever should be 
allowed to give a general opinion on the insanity of a prisoner, 
it yet holds that such opinions may be evidence when the ex- 11 
pert lias had opportunity for observation, and is conversant 
with the disease. 
In the case of the People vs. Montgomery, tried first in 1870, 
the accused was convicted and sentenced for the murder of his 
wife, mainly, if we may judge from the report, on the testimony 
of physicians that he was sane at the time. “ The question at 
issue on the trial (says the Court) was chiefly a medical one, in 
respect to which the opinions of medical men would be likely to 
exert a great if not controlling influence.” In examining this 
case for the purposes of this paper, at the suggestion of Mr. It. 
S. Guernsey, I discover such a wealth of illustration that I am 
tempted to make larger extracts. While differing from him as 
to the right of a juryman to have a private opinion, for reasons 
given in the Golden ltules cited, I cannot but pay the highest 
compliment to Mr. Guernsey for the learning and research 
shown in his note appended, and which forms a portion of an 
article which I have not had the good fortune of reading. 
It is true that the admission of these opinions is subject to 
the after charge of the presiding Judge; but even wdiere, as in 
Cole’s case, the jury are told by such a Judge as the late Judge 
Hogebooin that they must estimate their value—that they 
are the ultimate judges on this point, or they are as fully dis- 
cussed as in Montgomery’s case—the jury are not always able to 
emancipate themselves from the thraldom which the supposed 
superior wisdom of the expert imposes. And this again fur- 
nishes a serious objection to the admission of the expert as a 
witness, apart from all interested motives ; and if the sciences 
professed were reduced to the perfection of certainty, instead of 
being for the most part imperfect, he would still be objection- 
able as a witness; but with the present state of uncertainty 
in medical, chemical and related sciences, the very reputation 
of the man intensifies the objection. The jury are not compe- 
tent to criticise him, and the higher his position the more they 
will be influenced by his opinion. If, therefore, the school in 
which he has obtained his instruction and subsequent success 
should happen to be incorrect in its tenets, and he clings thereto, 
as we know he will, what danger do we not incur when we per- 
mit him to leave the narration of the facts of observations and 
utter the opinions of his sect! How shall we disabuse the jury, 
and confine them to their duty, unless by calling in another 
expert, equally learned, of the opposing school, and by their 
conflict seek to determine the law and the facts'? See Mont- 
gomery’s case. 
Fortunately for courts and community such conflicts are 
rare, and even when they do occur the juries recollect that 
they too have a right to an opinion. They may listen patiently 
to learned disquisitions which they do not comprehend, but 
often their verdict proves that the effort has been labor lost. 
Need I do more than refer to that somewhat recent death by a 
pistol shot, which called forth such able essays on the deadly 12 
effect of soporifics and the lethal consequences of shock. While 
reading the record, one is tempted to believe that the jury 
alone remembered that there was a shot wound in the bowels. 
In the early days of the West there were model juries, who de- 
cided that every man found with a round hole through his head 
had died by drop fever, or visitation of God, but when a bullet 
was found in the head gave it the credit of the death. 
The case to which allusion has been made would seem to 
have been one in which the scientific testimony would have 
taken the simplest shape, and that beyond the evidence of the 
surgeons none other could have been admitted ; yet, under the 
relaxation of the rules of evidence, we have seen how great a 
cloud of witnesses were allowed to ventilate their theories in its 
connection. The result, if it has manifested anything, has 
shown the wisdom of greater strictness of their exclusion, if 
only for the sake of economy. 
In cases of death by poisoning there is an apparent necessity 
for scientific testimony. Let us see if they afford any better 
reason for the relaxation of the rules of evidence. Suppose, 
then, that all the preliminary investigations by chemists and 
surgeons are completed and the case on trial—what ought to 
be the testimony of the expert called ? Certainly nothing more 
than the description of the processes employed, a positive aver- 
ment of the chemical result, and possibly an assertion of the 
absence of other causes of death. But here he should stop. By 
what right should either chemist or surgeon say that, in his 
opinion, the poison found was the cause of death"? If an un- 
doubtedly deadly poison be found in sufficient quantities to 
produce death, doubtless he can say just that fact—this will 
be enough to enable the jury to do their duty—and here his 
office ends. Allow him to say more, even in a case free from 
doubt, and a precedent will be formed for use in cases where 
the facts are not so clear. Remember that assertion may be 
shaken on cross-examination, but opinion, even when producing 
conviction, gives no good hold. 
To show how carefully even such testimony as is based on 
scientific experiment, the result of which rises from opinion to 
the evidence of a fact demonstrated, should be criticised before 
admission, let us refer to one or two recent cases : 
In tlie first—that of Dr. Schoeppe—there was every apparent 
reason for charging him with the crime for which he was 
brought to bar, and yet, as the result has proved, there 
was the greatest necessity for even something more than 
the strict application of the rnles of evidence to secure him 
a fair trial. Of foreign birth and manner, he labored under the 
weight of popular dislike and prejudice. His engagement to 
marry Miss Steinecke, a woman so much older than himself, 
the consequent will in his favor, his constant attendance upon 
her, furnished the apparent motive and opportunity for the commission of the crime. Her sudden death completed the 
chain of suspicious circumstances. It is evident that the facts 
in the case had already made their impression upon 13r. Aiken, 
the expert called by the State, before he began his investiga- 
tion, and that he had already formed his opinion before he had 
ascertained the facts, llis own convictions blinded him to the 
truth that his duty compelled an exhaustive search for facts, 
and not for the means of supporting his own opinions. The cir- 
cumstances already mentioned lead us to take the most chari- 
table view of his actions, and to give him credit for an invin- 
cible conviction of the guilt of the accused ; nothing less than 
this will excuse his manner of performing his scientific duties, 
as subsequently shown. Were it possible in this paper to com- 
ment at large on all the processes employed by him to produce 
the result attained, it is not to be doubted but that it could be 
shown that at each step he took something for granted—that 
every one of his experiments was founded on a false assump- 
tion, and the result a mere expression of opinion. Fortunately 
it is not necessary. We all know the effect produced by his ex 
parte testimony on the jury, and to whom belongs the credit of 
saving the victim of this u opinion v and public prejudice from 
the gallows. Had Dr. Schoeppe been less intelligent than he 
was, or less able to appeal to the assistance of his fellow profes- 
sionals, he would undoubtedly have added another name to the 
list of the victims of what is mistakenly called circumstantial 
evidence—in reality the admission of mistaken expert opinions 
as evidence. This result of the final trial, obtained by such 
unheard of exertions by a class of men second to none in influ- 
ence, due to character and reputation, made manifest not 
merely that the chemical investigation of Dr. Aiken was con- 
ducted on a mistaken basis and in a faulty manner, but that a 
system which permitted an opinion, as I may call the ex parte 
investigation, to be offered in evidence, was in itself faulty. 
Nor is it to be doubted that the Court which, on a verdict ren- 
dered on the strength of such testimony, sentenced an innocent 
man to be hanged, and brought him so near that fate as to be 
measured for his coflin to the sound of the carpenters building 
his scaffold, will for the future require strict proof of the facts 
of every process, and retain for itself and the jury the expres- 
sion of opinions thereon. 
If it should be said that the case of Dr. Schoeppe is an ex- 
ceptional one, and that such another would not occur again in 
a century, it should be answered that such startling exceptions 
show us the necessity of clinging more closely to the rnle of 
evidence, and that some provision should be made whereby, in 
similar cases, all danger of the expression of sncli mistaken 
opinions might be averted. This would seem to be an easy 
task, and one which could be performed in manner similar and 
on the same principles which now regulate the prosecution of 
criminals by the State. Every one knows that a criminal can 14 
obtain not merely a statement of the crime with which he is 
charged, but a list of the witnesses by whose testimony the 
charge is to be substantiated, and that all ex parte testimony is 
excluded. What is there to prevent a similar communication 
to be made whenever a post mortem examination is to be or has 
been made “l Why should not the accused be informed of the 
intentional process, or of the processes already had, so that by 
employing experts to attend on his own behalf the possibility of 
error might either be wholly averted or the chances thereof 
greatly diminished t The State cannot stoop to surprise a 
criminal, much less an accused citizen, not yet proven, through 
conviction of guilt, to have forfeited his right to protection. 
The investigation necessary is to be used, not for the purpose 
of conviction but for the manifestation of truth. This is the 
end of all evidence, the object of all legal and proper processes 
of trial; and surely such an investigation as the chemical analy- 
sis of human remains, the contents of the stomach and viscera 
of a person dying under suspicious circumstances, which can 
scarcely be repeated, should be so conducted as not to rest for 
belief in its fairness on the opinion, character, or reputation of 
witnesses summoned for one side only. How much better that 
such investigation be made under the jealous scrutiny and 
criticism of a chemist or analyst employed for the defence, who 
should thereby prevent anything from being taken for granted, 
and, pari passu, with the process, mark the doubts and demon- 
strate the facts. It is no more to be supposed that this course 
would be attended with any more danger to the State than the 
very common practice of assigning counsel to defend an accused 
who “lias no lawyer;” and it would seem that, on the same 
principle of securing him a fair trial, that he is entitled to this 
aid to his defence. Is it not evident that if this course had 
been pursued in the case of Dr. Sclioeppe, he would never have 
been tried at all, and that both the State and the accused would 
have been spared the immense expense and suffering caused by 
Dr. Aiken’s error of mistaking the product of his own process 
for the producing cause of death ? It would seem, therefore, as 
if an enlightened economy would dictate the adoption of this 
course, especially where, in cases of life and death, the humanity 
of the law compels the production (and explanation) of the best 
evidence before the jury. Without this provision, as long as 
such testimony from experts is admitted, the accused, when 
poor and friendless, is exposed to the danger of having apparent 
proof exhibited against him, prepared beforehand and testified 
to by an expert in every way disposed to maintain his own tes- 
timony. Trained it may be in a faulty school, the tenets of 
which he has adopted, his professional pride binds him to make 
good the apparent results of his theoretical experiments, and, as 
long as he is enabled to testify to his opinions, he is freed from 
the necessity of determining any doubts that may have arisen. 
If an obstinate, conceited, or prejudiced man—all of which are 15 
perfectly compatible with a high popular reputation for skill 
and character—how will it be possible to permit such an expert 
to testify to his opinion without incurring the gravest risks ? 
Again, the idea that opinions should be admitted, because 
otherwise there would be a failure of all evidence, is wrong, 
not only because with sufficient care the facts on which opinions 
are based can be themselves testified to, but also because, when 
in any case the facts could not be testified to, the opinion would, 
of necessity, be mere conjecture or inference, and, as has been 
shown, utterly out of place in the mouth of a witness. If an 
opinion based on facts, then it is an usurpation of the functions 
both of Judge and jury; if a conjectural one, based on theory, 
it is certainly not evidence. The admission of such testimony 
at all would rather seem to be the result of a belief that trials 
were instituted for the purpose of conviction. With most 
people the fact that there is an accusation is proof sufficient of 
guilt, and they deem it but the duty of the State’s attorney to 
adopt every means of developing a criminal out of the accused. 
To effect this, in the opinion of such persons, any means not 
absolutely dishonorable, should be employed. Such, however, 
is not the spirit of our laws and institutions, but is an idea bor- 
rowed, with fashions of dress and manner, from the French. 
With that nation the public prosecutor, and even the Judge 
before whom the accused is examined, is allowed and praised 
for practices which, with us, would create a popular uprising. 
With us, as has been said, the prisoner is assured the benefit 
of the doubt, the oidy qualification being that the doubt should 
be founded in reason. How is it consistent with this principle 
of our public law to allow the introduction of opinions ? If we 
are told that otherwise professional men would refuse to testify 
at all if they were compelled to swear absolutely, is not that 
a confession that there is so much doubt on many points 
whereon experts are usually called for their opinions, such 
division among leading authorities, that such testimony ought 
to be wholly excluded ? Until these divisions of the doctors, 
proverbially so difficult to heal, shall be brought to happy 
accord by established fact and demonstration, let us bear in 
mind that provision which declares that a man shall only be 
deprived of life, liberty, or property by due process of law, 
and cling the more closely to the strict rule of legal evidence. 
It is scarcely necessary to refer to the recent cases of Mrs. 
Wharton, in Maryland, or that of Heggi, in our own State. 
The adoption of the provision of conducting the chemical analysis 
under the eye of a professional analyist as counsel, as has been 
suggested, for the defence, would have saved Dr. Aiken from 
being a second time brought to open shame—the prosecution 
would have discovered the lack of foundation for the accusation, 
or, it may be, the improbability of obtaining a conviction, and 
would not have been under the necessity of turning the Court room into a laboratory in tlie discharge of its duty. These cases 
have, however, demonstrated anew the fact that one cannot 
always rely on experts, as used at present, for thorough imparti- 
ality, and that if they are to be permitted to express their opin- 
ions as witnesses, it is absolutely necessary that both Judge and 
jury be thorougldy well read on both sides of the question. 
When this is the fact, it is evident that the true office of the 
expert would be destroyed, and that there would be no room for 
that instruction in the science involved which, it is maintained, 
is the only good reason for his introduction. Thus far 1 have 
confined my citation of illustrations of the uses of expert testi- 
mony to those cases which involve points of mechanical, scien- 
tific or chemical knowledge and experience, and, however im- 
perfectly or cursorily, have, T trust, said enough to show that 
in all the material or exact sciences there is no necessity for the 
admission of opinions as evidence. In the criminal cases to 
which reference has been made, however exceptional they may 
have been in their circumstances, enough, too, has been said to 
justify their exclusion, under the merciful provisions and spirit 
of our public law. 
But leaving all that great variety of cases which derive their 
complexity and difficulty from the insufficient exploration of the 
fields of material science, we are brought face to face with those 
which seem to pass beyond the domain of matter and involve 
us in the mysteries of the human mind. In these cases, strange 
to say, the position of the expert is reversed. He is no longer 
a danger to the accused, threatening life or liberty with the 
faulty products of ill founded theory, but he is a peril to society 
itself. Interposing between the guilty and the sword of public 
justice, he stays the execution of sentence for crime committed, 
and so, by rendering punishment uncertain, he weakens that 
sense of accountability which is the security of civilized society. 
How to exclude his testimony, or so to admit it as to prevent 
the utterance of mere conjecture as true opinion, and yet not 
otfend the merciful leanings of the law itself, is a problem not 
yet satisfactorily solved by the courts. How to brace up juries 
to resist their own tenderheartedness, and apply the test of rea- 
son to the doubts he suggests, so as to find their verdicts in ac- 
cordance with strict law and justice, is a task for the prosecu- 
tion which he renders more and more difficult. 
Both statute law and reason itself decide that no man should 
be held criminally responsible for acts committed when insane; 
but it is evidently necessary that this immunity should not de- 
prive the community of the power of protecting itself; that in 
thus creating a city of refuge, to which all criminals might flee, 
it should at least have the privilege of criticising their right to 
admission, and of so guarding its gates as to prevent their re- 
turn to active mischief. Unfortunately for the community, the 
subject is itself but imperfectly understood, even by those who 
claim to have devoted their lives to its investigation. How, 17 
then, can one apply a test, when as yet there lias been no un- 
failing touchstone found ? How require proof of facts where 
everything- is guesswork and conjecture ? The popular predis- 
position to believe in pleas of insanity is shown in the saying 
“ That there were more lunatics outside of than in the asylums.” 
Every man can recall to himself some instance of sudden, unex- 
pected mental aberration, often without apparent or sufficient 
cause. How then can an easy going, it may be sympathetic, 
jury be compelled to do their duty to society, if an expert can 
only be found to opine that the accused was, is, or ought to be 
insane ? The law itself, which gives the prisoner the benefit of 
the doubt, would seem sufficiently lenient, but when there is 
added thereto the aversion of all men to inflict severe penalties, 
the fact of punishment inflicted becomes so rare as to be almost 
phenomenal. Nor is this power of paralyzing the arm of the 
law confined to capital cases only. Its efficacy has led to its 
being exploited in so many directions, that already the right to 
inflict any punishment at all has been denied, on the ground 
that the commission of crime is in itself evidence of insanity. 
The credit perhaps, of first application of this system of phil- 
osophy to practice is due to the late James T. Brady, who, re- 
duced to invention for a plea for Huntington, the forger, gravely 
urged in his behalf the defence of moral insanity. Unfortunately 
for his client the jury remembered that the hearts of all men 
were equally desperately wicked, and that being the normal con- 
dition, his client was found guilty of the exceptional enormity 
of sanity and forgery combined. Despite this unfortunate re- 
sult the defence has found, as has been hinted, great favor in 
the eyes of all the defenders of the accused, and they have ap- 
plied their talents with such unflagging zeal to its elaboration, 
that at the present day there is no unrestrained act of anger, 
lust or avarice, which has not been classified and passed upon 
as a peculiar species of emotional insanity. Fortunately, neither 
my duty nor inclination compel me to offer what would be neces- 
sarily inexpert observations on the nature of the various forms 
of amentia, dementia or mania. It is enough to comment upon 
the manner in which it is introduced, the appeal to the sympa- 
thies, coupled with the usual disquisitions on the infirmities of 
human nature. If so fortunate as to have had a known grand- 
father, the foibles of people long dead and gone are resurrected, 
with which, and the conduct of the accused, to make up a hypo- 
thetical case for the decision of the expert. The kleptomaniac 
and the murderer both have shared the benefits of the defence, 
—the one to return to the bosom of his disgusted relatives, the 
otliet to become a leader in the land. 
In Macfarland’s trial we have an illustration of the “hypo- 
thetical case” carried to its highest perfection, and of its eminent 
success in the conduct of a desperate defence—when addressed 
to experts competent to give an opinion. In the Judge’s charge 
you will find the following : u Experts have been called in this 18 
case. They are to be considered rather as mirrors with which 
merely to reflect upon you their opinions, but you remain the 
sole judges whether those reflections are accurate. Sometimes 
the expert is an enthusiast, sometimes he is a clever charlatan— 
hence the usefulness of the jury as an umpire.” The Recorder 
nevertheless allowed these experts to hear a narration of the 
same facts presented to the jury, and declare thereon the opin- 
ion that the accused was insane (see Yance and Hammond); 
whereupon, after a decent hesitation, the jury sheltered them- 
selves behind the opinions of the expert and acquitted the 
prisoner. 
Unfortunately there is no adequate remedy for morbid sensi- 
bility, partisanship, or lax regard for the obligations of an oath. 
For these causes of the failure of justice and defeat of law we 
must look to the morals of the community ; and if we wish to 
insure fidelity to duty, as prescribed by Phillips to the tenants 
of the jury box, we must, in some degree at least, reform society. 
If dereliction from duty was visited with the penalty of social 
ostracism, the courts would be idle. 
In the absence of this restraint we can, however, hope to effect 
the desired object by removing excuses, behind which the fault 
when committed can be sheltered. If we remove the tempta- 
tions of this kind, falsehoods in the verdicts of juries will become 
less frequent. When, therefore, we shall find Judges on the 
bench who shall remorselessly exclude all testimony which, 
under the strict rules of evidence, does not bear upon the main 
fact, we will find juries much less frequently shutting out, as 
it were, the facts from their verdicts. 
In cases in which insanity is the chief defence, it would seem, 
at the first glance, harsh to insist upon the strict application of 
this rule. The disease exists in so many forms—it is so often 
unsuspected even by those in constant contact with the sufferer, 
that one may well ask how it is to be detected or proved if not 
by experts—and how can it be proved by them, if not by admit- 
ting their opinions ? If it were the fact that it can only be 
proved in this way, that should be sufficient to exclude this kind 
of proof from trials at law, as this view substitutes theory for 
that certainty which is the mainstay of society and law ; but as 
the proper expert duty is to describe and explain symptoms of 
genuine attacks, so that the jury may form a correct opinion, one 
can hardly see how the charge of harshness could be justified. 
It would, of course, be bad for the accused if the facts were not 
strong enough, but it would not be a reason for complaint on 
the part of the community. 
Why should an expert be allowed to express an opinion 
as a witness ? If he is called as an observer, or living record of 
the symptoms of others, he is not properly a witness, but an 
addition to the body of the law on this subject. His office is that 19 
of a commentator, and liis utterances should be used like those 
on any other branch of the law. 
The duty of the witness, it is to remembered, is to testify to 
the facts of the particular case. If he is both a witness of the 
daily condition and acts of the person at the bar, and an expert 
beside, of course he will be on that account the better able to 
speak with certainty, leaving to the cross-examination the task 
of exposing his falsehood or ignorance. If, however, such a wit- 
ness, so amply htted by position and skill, should only be willing 
to testify to his opinion, would one not at once conclude that he 
doubted the truth of his own observation? Ought it not to be 
properly excluded, or, if admitted, destroy his evidence? If, 
then, it would not be proper to admit his testimony in the shape 
of an opinion that the acts observed were insane, why should 
an expert be allowed to give an opinion on a hypothetical case, 
which is propounded to him as a witness ? Hypothetical cases 
presuppose the existence of actual precedents. If, therefore, the 
expert is the embodiment of a knowledge of these, is it not suffi- 
cient that he shoidd narrate his experience, describing cases 
parallel in character and symptoms with their results? 
Doing this he would supply to the Court the lack of what in 
law we call u reports ” on his particular science, and enable it 
to perform its duty to both the State and the accused. He 
would, and should, in fact, act not as a witness in the case, 
called by the side which employs and pays him, but as a witness 
to his science, and not be allowed to act as a willing respondent 
to the hypothetical cases put to him by a partisan employer. 
Precedents and descriptions of precedents he might well recite 
and verify, but their parallelism and relevancy should not be 
allowed to be shown by him in an opinion, but should be reserved 
as matter of argument for the advocate and charge by the 
Judge, to be passed upon by the jury. 
If, in addition to his experience, he has a knowledge of the 
recorded experience of others, he might also identify and authen- 
ticate such records, giving, as he ma»y be well htted to do, the 
proper share of weight and authority to each. 
We must remember that the rules of evidence, which would 
seem so to limit his scope, have been adopted as the best means 
of arriving at the truth. Harsh, therefore, as the exclusion of 
opinions and the limitation of hypothetical cases may be said to 
be, it is not an exclusion of anything of material importance— 
at least to the attainment of justice. The innocently accused 
would not require such aid; nor can history supply us with 
many—I have not been able to find any—instances in which 
they have suffered for want of such assistance; while, on the 
other hand, books both of history and law, from that recording 
the crucifixion of our Saviour, in whom was found no wrong, 
down to the suicide of Mrs. Waters in England the other day, 
are full of instances of innocents who have suffered from the ad- 
mission of opinions to the witness stand. We must not forget 20 
that the utter exclusion of everything like these opinions from 
testimony as not being lawful evidence, is by no means to de- 
prive either party of its use—it is simply to apply to all experts 
the rule which, in courts of justice, is applied to the lawyers 
themselves. These certainly, though experts in their profession, 
would think it a strange procedure in a trial of a case to manu- 
facture invented and supposititious cases to propound to another 
lawyer on the witness stand, in the hope and expectation of 
thereby deriving opinions which should influence the judgment 
of the court and the verdict of the jury. Doubtless the absurd- 
ity of the thing would strike others with equal force; but it does 
not seem to occur to men in general that the ordinary use of ex- 
perts amounts to the same thing. In the case of the lawyer, 
with his hypothetical cases of law, it would imply ignorance of 
law on the part of the Court. Surely, it implies nothing else in 
the cases involving scientific inquiry. If, therefore, the impli- 
cation is a just one (and as mankind has but a short life and art 
is long, it is no reproach), the proper position of the expert, 
when admitted at all, is as an instructor in the facts of his sci- 
ence, and the laws relating to the same. The opinion which he 
is forbidden to deliver is that which the jury is to form, under 
the direction of the enlightened judge, who sits for the purpose 
of instructing them in the law, after they have heard the pre- 
sentation of all sorts of cases, hypothetical and other, in the 
argument of counsel. The exclusion would, therefore, deprive 
the parties, plaintiff or defendant, of nothing, but would simply 
put that part of the performance in the hands of the proper ac- 
tors. It would, indeed, do more than this ; but all that it could 
do would be in the way of a more certain and speedy adminis- 
tration of public justice. It would remove from the practice of 
the law certain reproaches which now cling to that honorable 
profession. It would prevent the office of experts from being 
invaded by those who have but the slightest claim to the honors 
of the professions they do so much to bring in doubt, while it 
would bring into deserved honor and reputation the men of real 
learning and true merit. As the expert is now used and allowed 
to testify, it is but seldom that men of real eminence are in de- 
mand. The person now desired is that one who has the “great- 
est facility of communicating ” his opinion to the jury, wrho will 
so deliver it as to favor the side for which he may be called, and 
by no means that man whose patient research and laborious 
study has made him the master of his mystery. The latter 
would, doubtless, make permanent additions to the law and the 
sum of human knowledge; but he would be a most unlikely 
personage to depend on for the suggestion of a useful fiction. 
The probability of this, and the need of some such shelter for the 
criminal without just defence, has called the other class of ex- 
perts into being, and the admission of opinions has furnished 
the means of operation. An oath, and the penalties for falsehood 
attached, uiay prevent the manufacture of facts ; but opinion is intangible. It is subject to no rules—is pronounced, as it were, 
on honor, and the proof of utter want of foundation affords no 
ground for a prosecution for perjury. That this means of 
escape has been used to the utmost; that, thereby, the sword of 
justice has been blunted and her arm paralyzed, there is no need 
of the citation of cases to prove to any citizen of New York. We 
have already alluded to the manner in which it has been used in 
proving insanity in the defence of criminals of all grades, from 
that of murder to embezzlement; and we are justified in the as- 
sertion that the scope thus given to the use of expert testimony 
is dangerous to society. Evils of this kind, fortunately, like any 
other bad laws, work their own cure. From a serious obstacle 
to the prosecution it is becoming a laughing stock. Juries are 
being educated up to the point of having opinions of their own, 
and now and then startle us with verdicts in accordance with 
the facts. Soon the revulsion will reach that much to be desired 
point when the opinion out of place will destroy rather than 
raise the doubt. 
If the revulsion would only stop here one might well he 
satisfied with the effect, without too nice questions of the 
mode of its production; hut, unfortunately, this very mode 
of cure brings evils in its train almost equal to the original 
trouble. If juries can be allowed to disregard what is ad- 
mitted by the Court as evidence, because the popular senti- 
ment is aroused against it, there is an end to all fixed rules and 
established law. There will be nothing left to curb the course 
of that popular opinion which is as utterly out of place in the 
jury box as it has been shown, or at least attempted, it is in 
the mouth of a witness. The remedy on which I would much 
rather rely will be found in the return to the more stringent ap- 
plication of the rules of evidence, with penalties for disregarding 
them, whereby a salutary check can be efficiently put to the 
progress of this evil. 
In the foregoing pages I have endeavored to show that it is 
in no way necessary, either to the cause of justice or the elimi- 
nation of truth, that an expert should be allowed to give an 
opinion upon the witness stand. In so doing I have avoided 
going into the technicalities of the law of evidence, but have 
given what I may call popular reasons. As an illustration of 
the completeness with which an expert will combine in one 
opinion all the functions of witness, advocate, Judge and jury, 
permit me to quote rather liberally from one now lying before 
me. In justice to the eminent author, I wish most distinctly to 
state that I do so without the slightest idea of imputing any 
improper motive to him whatsoever. I use it as an illustration, 
fortunately in print, of the extent to which an expert can go, 
and the many characters that he feels called upon to assume, 
not doubting but that the memory of my auditors will recall 
instances of oral testimony on kindred subjects, which, if not so 22 
full and comprelieusive, were of similar character. I find in 
the preface to this, the second edition, the following: “ The 
finding of the jury was adverse to the contestants; but it will 
be seen that the Judge sustains all the legal and scientific 
points upon which I have insisted in my view of the case.” 
While, therefore, the “ finding of the jury ” will relieve us of any 
suspicion of criticising it from any connection with a case lost 
by its means, the fact of its “legal and scientific points” 
having been sustained by the Judge, shows that as a contribu- 
tion to law on the subject it was regarded justly as of great 
weight. That in this light it might be proper, and a grateful 
amelioration of the labors of the Court, there would be no 
shadow of doubt, did not the perusal of the whole production 
prove it to be the issue, not of a calm, impartial instructor, but 
of an interested and partisan advocate. Admirable and rich as 
it is in stores of learning on the subject of insanity in general, 
and monomania in particular, it is more like a brief for an 
advocate retained to prove one James C. Johnston destitute of 
testamentary capacity than anything else. 
Retaining the form of an opinion, it opens with an introduc- 
tion of the testator, continues with a sketch of his manner of 
life, antecedents and surroundings, as viewed from the con- 
testant’s point, and then, with the certainty of conviction, pro- 
nounces him incapable of making a will because of mental 
derangement. After this, however, he weakens the force of his 
own dictum by acknowledging the extreme difficulty of giving 
such a meaning to the word “insanity” as will “cover all pos- 
sible cases of deficiency or aberration in the mental faculties, 
and yet not include those instances of cerebral disease which 
cannot properly be classed under this head,” and filling the 
next five pages with the citation of varying and clashing 
authorities. The author, however, passes them by, and confines 
himself to the one available form of insanity, which in this case 
he claims was monomania. This, with the utmost distinctness 
he declares, was the matter with the testator. Sane on all 
other points but the one of disliking his own nephew, his dislike 
for him was proof of a monomania that prevented in law his 
leaving his property to whom he liked. Eight pages of the 
opinion are therefore devoted to an essay on the subject of 
monomania, after which, lest there should linger with the jury 
some prejudice in favor of granting some rights to a mono- 
maniac, he proceeds to afflict him with paroxysmal mania. As, 
unfortunately, paroxysms imply cessations or lucid intervals, in 
one of which a will might be made, it becomes necessary to 
dispose of this difficulty. “ Naturally,” he says, “ the next 
point to be considered is the legal relations of monomania and 
lucid intervals.” Naturally, a lawyer would say, this part of 
the case belongs to the Judge; but the author of the opinion 
rises to the height of the emergency, and takes the matter into 
his own hands. To this end he cites numerous reported cases 23 
and decisions, which enable him to pronounce authoritatively 
that lucid intervals are a delusion and a snare—and, in fact, 
that there is no such thing-. This established, it follows, of 
course, that the testator could not have had any, and, if the 
logic may be completed, he was at all times crazy, if not always 
a maniac. After this rather partisan argument he says, “ This 
concludes what I have to say relative to the law and science of 
monomania, as the same are acted upon and understood in 
Germany, France, England and the United States at the pres- 
ent day.” 
u This is all I have to say,” says this expert, renowned for his 
knowledge, and with his great reputation, to influence the ver- 
dict of a jury. But this is by no means the position which an 
expert should be allowed to occupy. If it is all that can be 
said, there is no fault to be found ; but if it is not, then it is at 
least reprehensible. The very reputation of such an expert for 
knowledge and skill in observation would add such weight to 
such a statement as to make an ordinary jury believe that it 
was all—that the u law” of the case had been fully and fairly 
stated. The obligations of honor are binding upon the expert 
to do this—for his only right to give an opinion, or to testify at 
all, is derived from the belief that he is a minister of the truths 
of science. In any other view the citation of authorities scarce 
to be comprehended, and hardly to be refuted by lawyers in a 
court of law, can be only made for the purpose of darkening 
counsel and confusing the jury. As an opinion by an expert, 
written with full opportunity for reflection, and therefore much 
less liable to be swayed and distorted from the most perfect 
impartiality than when delivered in court during the heat of a 
contest, it will be useful to consider closely the one now under 
examination. If it fails in this respect, what may we reason- 
ably expect from the other I 
In the first, portion of it the author uses the following ex- 
pression, inadmissible under all the decisions : UI am entirely 
satisfied, after a full consideration of such evidence, documents 
and statements as have been submitted for my examination, 
that the testator was not of sound and disposing mind,” etc. The 
judicial character of this declaration, which, however, legally 
destroys the opinion, can hardly fail to be noted. The ordinary 
inference is that the testimony on both sides had been sub- 
mitted to him ; if not, it is not possible to believe in the impar- 
tiality, or attach any value whatsoever to the declaration made. 
Remembering, however, that this declaration is not made by an 
ordinary witness, but by one lifted above the common herd— 
by one selected as an expert—does it not show the danger of 
giving the power of such utterance to those who may be so un- 
mindful of the ordinary obligations of fairness among men ? 
The author does not, however, through all his long opinion, 
give us the slightest proof that he has seen the testimony in 
behalf of the testator’s sanity. Everything of that kind de- 24 
pends on unsupported inference; and yet, in the quiet of his 
study, he deems he has a right to prepare for utterance the 
most decided declarations. Let me quote from the second part 
of his opinion : “ The testator been insane for fifteen years 
prior to the execution of this will, and his sister was similarly 
affected. His attacks of delirium were paroxysmal in their 
character, and in the intervals he would be of apparently sound 
and healthy mind. Over these attacks of delirium he had, as 
is common in insanity of this form, a certain amount of control. 
When persons before whom lie wished to appear to advantage 
would approach him he would suppress his ravings, but would 
again break out in them when left alone, or with those whose 
presence had become familiar to him. At times, too, after 
becoming thoroughly exhausted with his delirium, he would 
regain his calmness, beg pardon of those who had been with 
him, admit the existence of his insanity, and state that he 
ought to be carried to an asylum.” 
Now, not to state that, according even to this rather strong 
statement, the unfortunate Johnston exhibited an unusual power 
of will and self-knowledge, ought it not to have occurred to the 
expert that he was himself “piling the agony” upon a mono- 
maniac—possibly from one sided statements by interested per- 
sons? The context seeming to bear out the idea that this tes- 
mony and evidence was so furnished, ought he not rather to 
have utterly refused to have given any opinion at all unless fur- 
nished with the fullest evidence on both sides ? Of this fact 
the opinion, as it is professedly a judgment on the law and 
fact on insanity applied to the case in hand, should have con- 
tained abundant and convincing proof. 
Up to the point which I have now reached in this “ opinion” 
there has been maintained some slight semblance of judicial 
tone and style—enough to make one suppose it was intended 
for a one sided charge to the jury. From this point, how- 
ever, it abandons it entirely, and becomes an open partisan 
argument. That it is an able one, and perfectly allowable ta 
an advocate avowedly retained by one side, can be admitted, 
though it may well be doubted whether any Court would per- 
mit, or any counsel dare to impute motives and feelings so 
recklessly and positively on so slender a foundation of proof. 
Not only is this done on slender proof, but the poor man is 
accused of sentiments of which there is no proof whatever, 
and which must have been locked up in his own bosom. 
That he did not act in accordance with such imputed motives 
and feelings is adduced as proof of his insanity. It seems that 
the testator had supported a nephew and his wife for many 
years, but that an opportunity occurring to break up his estab- 
lishment, he sent both adrift for reasons expressed in a letter 
which is cited. This act the “opinion” terms the “consumma- 
tion of a plan which, with all the cunning of a monomaniac, the 25 
testator had kept long confined in his own bosom.” If the line 
of argument and logic is correct, it wrill be eminently dangerous 
for any one to bear patiently with a household grievance until 
the day of delivery arrives. 
After a continued preparation for his final effect, in the same 
strain, the author introduces the will and the directions to the 
executors in extenso. These he pronounces such as no sane per- 
son would write. Odd they are, doubtless, but without dis- 
paraging the author’s judgment and opportunities for forming a 
judgment, it may well have occurred to him to reflect that there 
is no source of litigation so fruitful as the testamentary dis- 
positions of ignorant or ill-tempered decedents. A moment’s 
thought would, perhaps, have shown him that there were two 
sides to the question so positively decided. 
Large as is the space which 1 have devoted to the criticism of 
this opinion, I cannot dismiss it without referring to the con- 
clusion which is contained in “ seven points.” Of these the 
first four relate to the disease of monomania. The fifth repeats 
the charge that the testator was a monomaniac, and incapable 
of making such a will as he would have made if sane. The 
sixth affirms that “ there could not possibly have been a lucid 
interval when the will was written, signed, acknowledged and 
reaffirmed, because all these acts show a continuance of the 
delusions under which the testator labored,” and the seventh 
decides u that therefore he was not possessed of testamentary 
capacity, and that, consequently, the paper dated the 10th 
April, 18G3, and reaffirmed the 13tli of September of the same 
year, is not his last will and testament.” 
Annexed to the opinion is the charge of the Judge, which, 
however, does not verify the statement in the preface that I 
have quoted, inasmuch as in offering to the jury the usual 
choice of alternatives, he very far fails from sustaining the 
expert in the last of his “legal and scientific points.” This 
fact, and the verdict of the jury in opposition to the directions 
and conclusions of this “ opinion,” tend to confirm me in my 
expressed suspicion that there was some testimony or proof on 
the other side to which the author gave no attention. 
While confessing that I am puzzled to assign the particular 
office which this production was intended to perform, I am by 
no means in doubt as to the lesson which it serves to enforce. 
If a gentleman of high standing in the community, of large and 
extensive practice and great acquired knowledge in his profes- 
sion, will, in the quiet of his study, prepare such an u opinion ” 
for use in a cause involving the mere right to property in a dis- 
tant State, what can you reasonably expect of an expert on the 
stand, where his feelings are enlisted and excited, and the game 
is one of life and death'? How can you expect the impartiality 
of the pure scientist when the expert is allowed to be summoned 
as a witness for one side H That he should be allowed to furnish 
a one sided brief seems equally out of rule. 
If I have thus far—in directing your attention to the relaxation 26 
of the rules of evidence in admitting the opinions of experts as 
testimony, as the cause of evil to society, inasmuch as it intro- 
duces an element of uncertainty—seemed to have treated the 
subject too much from the lawyer’s point of view, it is because 
that point of view ought to embrace all sides. It certainly does 
not entirely leave out of sight that one which reflects the obliga- 
tion which the expert owes, not only to society but to those 
other honorable men, his professional associates, who also devote 
their lives to the pursuit of scientific truth. As a lawyer, I 
would exclude his opinions from testimony only to raise them 
to the dignity of law; I would remove him from the arena of 
strife as an advocate, and exclude him from the witness stand, 
that I might raise him to the position of an amicus cur ice, owing 
no allegiance to either party, and only bound to declare the 
established and demonstrated truths of science for the enlight- 
enment of all. I would elevate the man, and through him the 
science he professes, by putting him beyond all suspicion of in- 
terest, all thought of partisanship, and I well believe the strict 
application of the rules of evidence would effect this in a great 
measure by removing temptations which now too strongly ap- 
peal to the weaknesses of human nature. 
As an authoritative recognition that this is the proper posi- 
tion of the expert, at least on the question of insanity, recur for 
a moment to the statutory provisions of our State thereon, and 
see if there is any reason, in principle, why this defence, when 
pleaded, should not be passed upon by the Court, aided by ex- 
perts summoned by itself, before as well as after the verdict of 
the jury. In itself a statutory defence, its regulation by other 
statutory provisions could scarcely be obvious to the constitu- 
tional inhibition. A trial so regulated would be as much due 
process of law as any other, and the jury would receive the law 
of the case on this subject, as well as on the public law, from an 
enlightened Court, instead of being, as now, compelled to recon- 
cile the opinions of diverging, because partisan, expert witnesses. 
Let me recall to your memory the recent case of George Francis 
Train as an illustration. Ilis verdict of acquittal having been 
rendered on the ground of insanity, and the Court having 
been certified by the jury, or otherwise (for so says the statute as 
it stands), of that fact, the Court was bound to carefully inquire 
and ascertain whether his insanity in any degree continued. 
The Court did so inquire and ascertain,by means, we must sup- 
pose, of impartial experts, and did further, as the statute pro- 
vides, order him into safe custody. Whether he went to the 
asylum, and if not, why not, Mr. Bell can give us full informa- 
tion. The point is, that in cases of the successful use of this 
plea, the Court now has a right to retry the accused with the 
proper assistance of experts, and that on their decision, as the 
law now stands, depends the liberty of the citizen. As the stat- 
ute seems to take from the petty jury the right of deciding upon 
the present insanity of the prisoner, then and there under their 27 
personal observation, it becomes matter of wonder that they 
should be allowed to pass upon that question at all. If they 
cannot tell whether he is insane noiv, how can they tell that he 
teas at the time of the commission of the act charged as a crime ? 
The plea being a confession and avoidance, it would seem emi- 
nently proper that the avoidance, when statutory and depending 
for recognition on scientific knowledge and skill, should be 
passed upon in the first instance by the same court which, as 
we have seen, has the power of passing upon it in the second. 
If it is objected that in practice the criminal is not bound to 
declare his special defence until the last moment, the objection 
can be obviated by compelling him to put in his special and 
especially statutory defences before trial, and as a correlative 
duty oblige the State to call the necessary adjuncts to the ordi- 
nary Judge to fit him to pass upon this plea. It must be 
remembered that in theory the plea is always supposed to be 
interposed in good faith. There cannot, therefore, be any rea- 
sonable objection to a course which would speedily verify and 
sustain it. 
Even now the statute book shows a further approach to a 
recognition of the propriety of this course, for it is provided 
that if any person in confinement, under indictment or sentence, 
or under any than civil process, u shall appear to he insane,” the 
first Judge of the county, or his substitute, as therein mentioned, 
“ shall institute a careful investigation, call two respectable 
physicians and other credible witnesses, invite the district 
attorney to aid in the examination, and, if he deem it necessary, 
call a jury,” with power to compel their attendance; and if the 
insanity is satisfactorily proven, the prisoner shall be discharged 
from prison and be removed to the asylum, where he shall be 
retained until restored to his right mind, when, if the Judge 
shall have so directed, the convalescent shall be returned to 
prison to be tried, serve out his sentence or be discharged. In all 
these cases the provision of the statute applies to insanity 
proved at the time, evident at the time of the act, or developed 
in confinement; but there is no apparent reason why the same 
provision should not be made to apply to the trial in chief before 
the ordinary petty jury. As far as it concerns the accused it 
would seem to be preferable to the present course, though it 
may be that justice and truth are not always what he desires. 
At all events, it would be equitable to him and practically 
beneficial to society, while to the expert—really deserving of 
the name in restoring him to his true position of scientific inter- 
preter—it would be a rescue from past reproach and constant 
suspicion. 
A popular idea concerning trials at law is that they are all, 
civil and criminal, simply trials of skill between trained trick- 
sters; that the merits of a cause have much less to do with 
the decision than the skill of the attorney in preparing his side 
of the case for presentation to and the power of the advocate in enforcing it upon the jury; that in such cases, as in love and 
war, all tricks are allowable, and, when they assure success, 
laudable. As experience has afforded many seeming instances 
of proof, and as success uniformly brings large profit to the suc- 
cessful practitioner, it is not strange that all expedients condu- 
cive to that end have been adopted. This—of the use of expert 
testimony—has been by no means the least popular. But while 
I recognize the strong inducements on the part of the ambitious 
and unscrupulous lawyer for its use, I confess that it strikes me 
with no little astonishment that members of equally learned, if 
less ambitious professions, should so readily yield themselves to 
his service. Nor is my surprise diminished by the knowledge 
that while nearly every learned profession in the land has at 
least some sort of organization, no one of them has taken any 
public step to check the extravagance of those professional 
experts who play the charlatan in the courts. It is an act 
which they ow e to their own dignity and self-respect, and which 
cannot be long delayed without the diminution of both the loss 
of popular esteem and veneration. This, as I have tried to 
show, the courts may assist them in doing, by excluding 
opinions and confining these representatives of the learned pro- 
fessions to their demonstrated facts and discoveries; but the 
organized bodies of these professions can do more, by making 
the law of professional honor bear with greater stringency 
against those who offend against its tenets. When the two 
shall work together and attain this end, lawr and justice will be 
much more closely approached, and the popular regard for them 
greatly enhanced. Officers of the j?ocictn for 1873-4. 
o 
President, 
CLARK BELL, Esq.„ 20 Nassau Street. 
First Vice-President, 
J. C. PETERS, M. D., 83 Madison Avenue. 
Second Vice-President, 
CHARLES P. DALY, Esq., 84 Clinton Place. 
Recording Secretary, 
GEO. W. WELLS, M. D., 144 Broadway. 
Correspo n ding Seer eta ry, 
J. F. CHAUVEAU, M. D., 134 West Houston Street. 
• 
Treasurer, 
T. S. BAHAN, M. I)., 461 Hudson Street. 
Librarian, 
R. S. GUERNSEY, Esq., 150 Broadway. 
Curator and Pathologist, 
P. E. DONLIN, M. D., 129 West Houston Street. 
Chemist, 
Prof. R. OGDEN DOREMUS, M. D., 70 Union Place. 
Assistant Recording Secretary, 
M. N. MILLER, M. D., 356 West 18th Street. 
Trustees, 
T. C. FINNELL, M. I)., 132 West Houston Street. 
STEPHEN ROGERS, M. D., 249 West 42d Street. 
JAMES ROSS, M. I)., 65 Bank Street. 
GEORGE H. YEAMAN, Esq., 14 East 16th Street. 
W ILL! AM A. HAMMOND, M. D., 162 West 34th Street.