[Reprinted from The Philadelphia Medical Journal], May 27, 1899.] 
THE PROPOSED LAW GOVERNING EXPERT 
TESTIMONY. 
H. C. WOOD, M.D., 
of Philadelphia, Pa. 
To the Editor of The Philadelphia Medical Journal:— 
In the Philadelphia Medical Journal of May 13 there is 
an editorial upon a proposed Act of Assembly, published in 
the Legal Intelligencer of January 7, we believe, as a suggestion 
from Law Reform Committee of the Pennsylvania Bar Asso- 
ciation, relative to expert or opinion testimony. The source 
from which this proposed act emanated is such as to require 
very careful consideration of the bill on the part of those in- 
terested. After such consideration it is to my thinking clear 
that the enactment of the bill as published would leave the 
situation in our courts, at least so far as medical matters are 
concerned, worse rather than better. My own belief is that 
the attempt at reform is in the wrong direction, but this is of 
course a matter ever open to discussion. On the other hand, 
it seems to me possible to point out the deficiencies of the 
bill so clearly that they will be universally recognized. 
The first section of the bill is directed to providing for the 
appointment of 4 experts, who are to be paid by both par- 
ties directly or indirectly, and are supposed therefore to act 
without bias. Section 1, inter alia, states “Nor may any 
person be so chosen [as expert] if he has been approached 
or consulted or ['aid in reference to such proceeding or to 
the subject under inquiry by or on behalf of either party. 
Nor may he be so chosen if he has already formed a fixed 
opinion concerning the right or the guilt of either party to 
such proceeding or concerning the existence of some mate- 
rial fact relevant to such right or guilt.” Let us see how this 
would apply in medicolegal matters. 
Take first a case of supposed poisoning. Until the chem- 
ist has done his work there can be no trial, and in a large 2 
proportion of cases until the chemist has done his work 
there is not sufficient ground for any legal proceedings save 
for that of investigation by the District Attorney’s office. It 
is suspected that A has died of poisoning—the proper por- 
tions of the corpse are put in the hands of the chemist; if 
he finds the poison then it is the duty of the District Attor- 
ney’s office, if possible, to connect the poisoning with some 
person; until, however, such connection is definite there 
can be no trial and no agreement between two parties. Un- 
der the proposed law the expert testimony of the chemist 
would be ruled out at the trial, and the whole judicial system 
would collapse. It will not do to say the law could be evaded 
by declaring that the chemist’s testimony is as to matter of 
fact, not as to matter of opinion. The line between matters 
of fact and matters of opinion is largely arbitrary ; it may be 
a matter of fact whether a certain stain upon a piece of glass 
is or is not arsenic, but so far as the expert is concerned it is 
a matter of opinion with him that this is arsenic. His opin- 
ion concerning the alleged fact is certainly open to contra- 
diction, and if he be emyloyed by one party as an expert, 
the other party would necessarily have the right to employ 
somebody else as an expert to test the accuracy of his 
opinion. 
Again, in regard to testamentary capacity. I suppose 
every expert in mental diseases is from time to time con- 
sulted as to the mental capacity of persons who are about to 
make wills; and under such circumstances written opinions 
are often put in the safe-deposit boxes with the will. It is ab- 
surd to say under these circumstances that the expert is under 
a bias; he gives the opinion and the will is made, if the opin- 
ion is that there is testamentary capacity; while the will is 
not made if the opinion of the expert is contrary. Death 
comes perhaps 5, 8, 10 or even more years after the making 
of the will; in the trial, under the purposed law, the expert 
who examined the patient at the time of the making of the 
will, and really had knowledge of the facts of the case, would 
be put aside for one who must give his decision without per- 
sonal knowledge, basing his opinion upon the shadowy state- 
ments of interested relatives, servants, and other more or less 
cultivated or ignorant witnesses, who are themselves more or 
less involved in what may be a very bitter controversy. 3 
Again, take the matter of the most contested of all judicial 
matters, personal injuries. I suppose almost every expert has 
been consulted shortly after an accident conjointly by the 
railroad that has done the injury and the person who has 
received the injury ; has given an opinion to each party, re- 
ceiving half a fee for the opinion from each party; and then 
the parties concerned disagreeing as to the amount of dam- 
ages, the case has been taken into court. It is plain that the 
opinion of such an expert would be of much more value than 
the opinion of an expert of equal intelligence, who wrould 
examine the patient simply at the time of trial. 
Some years ago I was employed by the City of Philadelphia 
to examine a woman, of whom it was affirmed that she had 
been permanently injured by falling into a hole in the street. 
Careful examination and study of the case led me to the posi- 
tive conclusion that the woman was suffering from no disa- 
bility, and to a belief that there had not been any injury. 
Notwithstanding decided testimony in accordance with this 
conclusion, $1,500 was awarded to the woman, the legal offi- 
cers of the City expressing, however, great satisfaction, since 
they believed damages for thousands of dollars would have 
been given if it had not been for my testimony throwing 
doubt into the minds of the jury. Some years afterward, 
coming out of the court-room, I was met by a lawyer, who 
said, “ Doctor, do you remember such and such a case ?” I 
said, after some little hesitation, “Yes.” He said, “The 
woman is dead now, and I think you will be gratified to 
know you were perfectly right. The case was a set-up one, 
the woman never had had any fall, never was hurt, but after 
all we were smart enough to get $1,500 from the City in spite 
of you.” 
A great deal of medicolegal work is in the investigation of 
such cases as these ; very commonly the discovery of the truth 
involves the coaxing of the patient to go into a hospital, the 
putting of a trained nurse in the house, or the use of the pro- 
fessional detective, the alleged symptoms being of such a 
character that they cannot be seen by the doctor in examina- 
tion. The medical expert, who had detected such a fraud as 
this, would, under the proposed bill, be entirely ruled out 
of court. In many cases of fraud, the detection at a single 
examination, such as would be made by experts appointed at 
the time of trial, is almost impossible. 4 
Again, let a case of alleged malpractice be considered; or 
almost any medical case. If an expert has been called early 
in the case, has watched the case through, has perhaps 
known the patient before and after the occurrence, he is the 
one who has the most intimate knowledge of the whole 
affair; and yet, under the Act he certainly would be ruled 
out of court. 
It must be clearly remembered, as before said, that in ex- 
pert mailers there is no line between matters of fact and 
matters of opinion ; it is always a matter of opinion what are 
the facts of the case. Myelitis and broken backs are facts, 
but it is an opinion whether they exist in a given case or not. 
Section 3 of the proposed Apt says plainly that no expert 
or opinion testimony may be offered by either party except 
that of the official experts. Section 8 of the proposed law 
provides that no hypothetic question shall be submitted, but 
that the opinion of the expert witness must be based “ either 
upon agreed or undisputed facts, or upon facts known by the 
witness and previously testified to by him, or upon the en- 
tire consistent evidence of a party or a witness, assuming the 
evidence to be true, or upon the several aspects of such evi- 
dence, assuming first one aspect and then another aspect to 
be true, or upon a combination of all or of any of the fore- 
going matters.” 
The difficulty of applying these sections to some medico- 
legal cases seems to me quite apparent. Supposing that this 
bill were enacted into a law, and that it were possible under 
its provisions to have a trial for poisoning; the official ex- 
perts would find themselves in this position : the prosecuting 
District Attorney claims that a certain substance was arsenic; 
the defence claims that it was not arsenic; the conviction 
or acquittal would result according as the case put forth 
by the District Attorney or that set up by the defence was 
believed. The experts could not give any opinion in regard 
to .the final matter under the provisions just given by the 
law because they could only give an opinion based upon one 
set of the alleged facts, and if they did give a decision based 
upon the whole testimony in the giving they would usurp 
the position of the jury, deciding as to matters of alleged 
fact. What good to the jury would be the statement of an 
official expert that if the case of the prosecution be correct 5 
the substance is arsenic; but that if the statement of the de- 
fence be correct the substance is not arsenic? What the jury 
wants is guidance from an expert as to whether the sub- 
stance is or is not arsenic; and this brings us to the fact that 
probably, if it be possible in any way to reform expert testi- 
mony to advantage under the present jury system, such re- 
form would consist in giving an expert assistant to the judge, 
who would expound to the judge the ins and outs of the expert 
testimony precisely as the judge expounds to the jury the 
ins and outs of the law in regard to other matters of evi- 
dence; the expert of course not addressing the jury directly 
but aiding the judge in the preparation of his charge. 
Such considerations as those of the last paragraph are, 
however, perhaps of minor importance, since the purposed 
law, if enforced, would evidently altogether prevent cases of 
poisoning from getting to the jury. 
A serious question is involved in the compensation of ex- 
perts provided for under the bill. The giving of expert 
testimony is the most difficult branch of practice in medi- 
cine, involving the coexistence in the expert of the widest 
practical experience and the largest theoretic knowledge of 
the matters concerned; requiring also the highest judicial 
mental capacity and the greatest conscientiousness. No man 
is fit to give expert testimony on a medical matter who is 
not in daily active contact with all classes of the diseases in 
question. At the same time, the uncertainty of the engage- 
ments, the detentions in court, the amount of time involved 
in the proper investigation of cases, interfere very greatly 
with the regular duties of the doctor. Moreover, to most 
men few things are more disagreeable than to be made 
a target for the wit and the abuse of a man whose training 
has been largely directed toward the baffling of witnesses 
and the hiding or the bringing to light of the truth, ac- 
cording as his present needs lead him to desire. Under such 
circumstances expert testimony of really high order must 
be well paid for, and unless the payment is liberal the work 
will be done solely by very inferior men, and for the cause 
of justice would better be left undone than done. A recent 
adventure of mine indicates very strongly what would be 
the probable outcome of payment by courts in the country 
districts. The matter was a difficult case of alleged insanity; 6 
three or four afternoons were given to its consideration; but 
the court finally held that $lO was a full remuneration for 
the expert. 
A study of Section 10 of the proposed law, concerning the 
compensation of experts, will show further that in criminal 
cases the expert would never know whether he would get 
anything for his work or not. Unless the judge intervened 
his only claim for compensation would be an order upon a 
convicted defendant, to be enforced as part of the sentence. 
Exactly how much and what the convicied thief or assaulter 
would be willing and able to pay remains uncertain, but cer- 
tainly few experts of eminence would be strongly tempted 
to follow such an ignis fatuus; if they did, one or two mirings 
would probably afford sufficient experience. 
There are other objections to the proposed law which could 
be readily brought forward, but it does not seem here well 
to occupy more space. Instead of attempting to reform 
jury practice as it now exists, would it not be wiser to 
begin to limit trial by jury to subjects which are not abso- 
lutely outside of the normal horizon of the jury’s vision? 
For example, a very large proportion of the medical expert 
difficulties could be solved by a simple law which said that 
no question of sanity or insanity should be referred to the 
ordinary jury, but to a commission composed of one lawyer, 
one doctor, and one layman (representing by its composition 
the three points of view), which commission should decide 
finally upon the question of sanity or insanity after hearing 
the evidence, both ordinary and expert. In the case of an 
alleged criminal the Commission should make the first in- 
vestigation ; if the sanity of the alleged criminal were upheld 
he should appear before the petit jury for trial as to guilt or 
innocence. If, however, the criminal were adjudged insane, 
he should become the ward of the court, to be taken care of 
according to the character of his crime and of his insanity.