II. REPORT OF COMMITTEE APPOINTED TO MEMORIALIZE 
LEGISLATURE OF THE STATE OF MASSACHU- 
SETTS ON THE SUBJECT OF EXPERT TESTIMONY. 
Read, Oct. 14, 1873. 
Your Committee, who had in charge the duty of presenting to the 
Legislature the importance of some legislative action upon the subject 
of employing the testimony of the class of witnesses known as experts 
in the trials of causes in courts, respectfully report. 
The Chairman received a notice from “ the Committee on the Judi- 
ciary on the part of the House ” that they would “ give a hearing to 
parties interested in an order relative to medical testimony in criminal 
cases,” on the 28th day of March last. And although the order, in its 
terms, was more limited in its scope than the subject with which your 
Committee deemed themselves to be charged, the Chairman attended at 
the time appointed, and endeavored to present what was believed to be 
the views of the Academy upon the general subject of expert testi- 
mony, with the reasons why, in their judgment, some efficient measures 
of reform in respect to this was important and desirable. 
These views were listened to by the Committee with great courtesy 
and apparent attention. To aid them in understanding the purposes at 
which the Academy aimed, as well as to suggest some of the means by 
which, in their judgment, these purposes might be attained, the draft 
of a bill or legislative act was laid before them, which had been sub- 
mitted for consideration to able and discreet jui'ists, and others of 
acknowledged sagacity, as well as several members of the Academy, 
and had been by them approved. Of this the Committee were fully 
apprised; as well as of the fact that, in what they were doing upon 
this subject, the Academy were acting in harmony with three other 
associations of gentlemen interested in science, — viz., The Suffolk Dis- 
trict Medical Society, The Boston Society for Medical Observation, 
and The Boston Society for Medical Science, — and that the attention of 
these Associations had been specially called to the subject of expert 
testimony, by more or less of their members having been required to 
give such testimony in matters of scientific inquiry and investigation. It was urged, too, before the Committee, that it was obviously 
ungenerous, as well as unjust, at the same time that it tended to bring 
the administration of justice into contempt, to compel honest and 
honorable experts, who had made themselves masters of any science by 
study, observation, and experience, to put themselves in conflict in 
open court upon, so far as the public saw, terms of equality with pre- 
tenders, who were willing to lend themselves, and the science to which 
they pretended, for hire, to promote the views or interests of their 
employers. And this, too, when the comparative claims of the two to 
confidence and respect were to be passed upon and determined by 
jurors drawn from the various walks and pursuits of life, untrained 
and uninformed in the matters upon which they are called to judge. 
Instances were cited and enumerated from both English and American 
courts, where juries have been subjected to such a discrimination, while 
the lives of persons upon trial depended upon the bap-hazard result 
to which they might come in trying to distinguish between what was 
true and false in science. 
Whether and how far these suggestions were deemed worthy of 
thought or attention, your Committee have no means of judging. The 
first and only communication with which they have been favored by 
the Committee of the Judiciary was a brief note, bearing date May 
24th, which simply announced that “ the Committee do not see their 
way clear to reporting favorably upon the accompanying bill.” This 
refers to the original draft of the bill, which had been left with them, 
and accompanied the note. The note contained no reasons for the 
result at which the Committee had arrived, nor how far, if at all, the 
scheme found favor with them. 
If the bill was objectionable in any of its terms or details, it is 
much to be regretted that it did not occur to the Committee that these 
might easily be modified or wholly changed, inasmuch as the bill, as 
offered, was merely by the way of suggestion, and might, without 
objection, have been wholly changed in its form, if it could any better 
express the views of the Committee. 
If the brevity of the session, or the period of two months during 
which the Committee held the matter in their hands, was inadequate to 
the forming of a satisfactory conclusion upon the subject submitted to 
them, it ought to be regarded as a public misfortune. If, on the con- 
trary, it was the deliberate judgment of that Committee that the 
course of justice is better served, and the honor of our courts more 
effectually advanced, by such exhibitions of trumped-up testimony and 
pretended skill and science as have, at times, signalized what are called judicial trials, than would be likely to be done by any proposed reform 
which they were asked to inaugurate', it might perhaps lead the Acad- 
emy to believe that the public mind is not yet sufficiently awakened to 
the importance of providing a remedy for an existing crying evil, and 
thereby stimulate them to a still further effort to convince others of the 
necessity of some action in the premises. 
As things stand, they ought not to let the matter rest in silence. 
The mischief at which they aim is becoming more glaring every year, 
and public attention in various quarters is being called to it in a sig- 
nificant manner, both in England and our own country. Nor is it wise 
to suffer this interest to subside, until some remedy has been devised, 
or is found impracticable. 
Had the Committee on the Judiciary seen fit to favor the Academy 
with their views upon the matter, it might have aided its members in 
forming a judgment as to the course they ought to pursue. In the 
absence of these, however, your Committee have thought proper to 
accompany their report by the draft of the bill before-mentioned, that, 
if the Academy should hereafter see fit to take any further action upon 
the matter, it might serve, by way of suggestion, to point out the 
objects which are aimed at by them. 
In conclusion, your Committee cannot but express a hope that the 
attempt to interest the Legislature in the subject now under consider- 
ation,-which has been twice repeated, will be renewed and reiterated 
till associations as numerous and respectable as those who have here 
undertaken to speak in behalf of the cause of science and truth, in 
which they have a personal but no pecuniary interest, may hope to 
obtain a response from those to whom their appeal is addressed, which 
will sustain them in their endeavors to accomplish a public benefit, or 
show wherein they are mistaken in what the public needs. Nor are 
they willing to doubt that, in due time, a community so ready as ours 
is to boast of its schools, its colleges, and its institutes of science, will 
devise some way by which, in the investigations of scientific truths in 
judicial trials, the value, together with the honor and dignity, of 
science, as well as truth, may. be vindicated and sustained. 
An Act concerning the Testimony of Experts. 
Be it enacted, 8fc., as follows : 
Section 1. Whenever the District Attorney of any district in the 
Commonwealth, or the Attorney-General, shall be informed of the death 
of any person in such district, and that there is reasonable cause to sus- 
pect that the same is a case of homicide, and he shall be of opinion that it is proper to cause a scientific investigation to be made into the causes 
and circumstances of such death, it shall be his duty forthwith to apply 
to one or more of the justices of the Supreme Judicial Court to appoint 
one or more discreet and experienced experts, who shall be deemed to be 
competent to conduct such investigation, and to form a conclusion upon 
the questions involved therein. And said justice or justices shall there- 
upon select and appoint such expert or experts accordingly. The com- 
pensation which shall be adjudged reasonable by the Court for the services 
of such experts, together with the costs of making such investigation, 
shall be allowed and paid in the same manner as other costs in criminal 
proceedings. 
Section 2. If, in the trial of any issue in any of the courts of the 
Commonwealth, the presiding judge shall be of opinion that the testi- 
mony of one or more expert witnesses, versed in matters of skill or 
science, a knowledge of which is material to a satisfactory determination 
of such issue, may be useful or important in such trial, it shall be com- 
petent for such judge, upon the application of either party to such issue, 
and after a hearing of such parties, if they shall desire it, to select and 
appoint one or more such expert witnesses, and to require their attend- 
ance to give testimony in such trial. And the witnesses so selected and 
appointed shall attend and be examined in the same manner as other and 
ordinary witnesses, when testifying in the trial of such issues. The 
court shall allow such witnesses, for their services and attendance in such 
trial, such sum as may be adjudged reasonable, to be advanced and paid 
as is provided in respect to the fees of ordinary witnesses. And the 
sums so advanced and paid by either party, if prevailing in the suit, 
shall be charged by and allowed to him as a part of his costs, as in the 
case of other witnesses, unless the court for good cause shall order other- 
wise. 
Section 3. Neither party shall be entitled to claim a delay or continu- 
ance of any trial, for the purpose of calling in the testimony of expert 
witnesses, unless the court shall be satisfied that there has been no 
unreasonable delay in making application for such appointment.