REPORT OF COMMITTEE ON MEDICAL EXPERT TESTI MONY. To the Members of the State Bar Association: At the last session of this association the committee on medical expert testimony was authorized to prepare and present to the then next session of the legislature a bill embodying some needed reforms in the matter of expert testimony. Your committee has the pleasure to report that such a bill was prepared, was presented to and passed by both houses of the legislature, and will in due course of time become a law of this State. So far as we are aware, Michigan is the first State of the Union to pass legislation of this kind. For twenty years or thereabouts the States of Massachusetts, New York and Pennsylvania, through the efforts of their several State bar and medical associations and other societies, have endeavored to secure legislation on this subject, but have failed. More recently Illinois and Minnesota have also made unsuccessful efforts in the same direction. An examination of the proposed bills in these several States and the discussions held thereon disclosed to your committee the fact, (as they believe), that in a majority of instances the changes proposed were either too radical or too complicated to meet the approval of the more conservative members of both the legal and medical professions, and that, in consequence thereof, the opposition to such measures led to their defeat. Naturally, a great deal of literature has accumulated on the subject in recent years in the form of discussions in textbooks, judicial opinions, magazine articles, and papers read and discussed at Bar and Medical Association meetings throughout the country. The opinon is by no means uniform that legislation of this kind is needed; many able papers have been presented in opposition to any reform whatsoever. But your committee believes that the weight of opinion is in favor of some reasonable and moderate regulation of the subject by way of legislation, and that the bill passed by our recent legislature will not only meet the approval of those who favor reform, but will not be obnoxious to those who oppose it. The work of the committee of the Bar Association received the earnest co-operation of a like committee appointed by the State Medical Association at its annual session held at Grand Rapids in 1904, consisting of Dr. J. B. Griswold of Grand Rapids, chairman, and Drs. David Inglis, Detroit C. B. Burr, Pontiac, V. C. Vaughn, Ann Arbor, and W. H. Sawyer. Hillsdale. The bill reads as follows: An act to regulate the employment of expert witnesses. The People of the State of Michigan enact: Section 1. No expert witness shall be paid or receive as compensation in any given case, for his services as such, a sum in excess of the ordinary witness fees provided by law, unless the court before whom such witness is to appear or has appeared, awards a larger sum; and any such witness who shall directly or indirectly receive a larger amount than such award, and any person who shall pay such witness a larger sum than such award, shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding one thousand dollars, or by imprisonment in the county jail not to exceed one year, or both, in the discretion of the court, and may further be punished for contempt. Section 2. No more than three experts shall be allowed to testify on either side as to the same issue in any given case, except in criminal prosecutions for homicide: Provided, The court trying such case may in its discretion permit an additional number of witnesses to testify as experts. Section 3. In criminal cases for homicide where the issues involve expert knowledge or opinion, the court shall appoint one or more suitable and disinterested persons, not exceeding three, to investigate such issues and testify at the trial; and the compensation of such person or persons shall be fixed by the court and paid by the county where indictment was found, and the fact that such witness or witnesses have been so appointed shall be made known to the jury. This provision shall not preclude either prosecution or defense from using other expert witnesses at the trial. Section 4. This act shall not be applicable to witnesses testifying to the established facts or deductions of science, nor to any other specific facts, but only to witnesses testifying to matters of opinion. Approved June 7, 1905. It will be observed: (1) The bill applies only to opinion evidence; (2), it prevents an expert witness from becoming a paid counsel in the case in which he testifies; (3), it limits the number of experts in civil cases; (4), it provides for the payment of experts by the county in homicide cases; (5), it authorizes the court to select one or more experts to testify in homicide cases. The first proposition is important, and is covered by the last section of the bill. It is based upon the distinction between a fact and an opinion. Only those witnesses who venture opinions are classed as experts, and come within the provisions of the law. The second proposition meets the objection to the current practice of the expert becoming virtually counsel in the case, and places the matter of compensation in the hands of the court. It does not prevent a physician or other specialist from advising a litigant or counsel in a case for any consideration he may be able to obtain, but it prohibits him from becoming a witness upon a matter of opinion in any case in which he has been so employed, by the terms of which employment he is to receive more than the legal fees. It does not prohibit him from testifying to any fact the same as any other witness. It is intended to take away the possible temptation to give a biased opinion that the promise of a large fee might exert upon a weak or unscrupulous witness. The competent and honest witness may rely upon the good sense and judgment of the court to award such reasonable compensation as his services are fairly worth. The radical reformers say that the courts should select and fix the compensation of all expert witnesses. Your committee believes that there are constitutional objections to the court making such selection. Parties have a right, under the law, to select their own witnesses. The proposed provision strikes a middle ground between the two extremes and should not, it seems to us, be objectionable to either side. Again, it has been generally held that an expert witness is not entitled to demand additional compensation other than the ordinary witness fees before attending to testify on the stand. Lonergau v. Assur. Co., 7 Bing. 729. Collins v. Godefroy, 1 B. & Ad. 950. N. Chicago S. R. Co. v. Zeiger, 182 Ill., 9. Buchanan v. State, 59 Ind., 1. Barrus v. Phaneuf, 166 Mass., 123. Le Mere v. M'Hale, So. Minn., 410. State v. Teipner, 36 Minn., 535. People v. Montgomery, 13 Abb Pr. n. s., 207-38. Allegheny Co. v. Watt, 3 Pa. St., 462. Northampton Co. v. Innes, 26 Pa. St., 156. Cone v. Higgins, 5 Kulp, 269. Summers v. State, 5 Tex. App. 365. Re Roelker, 1 Sprague (U. S.), 276. U. S. v. Howe, (U. S. Dist. Ct. W. D. Ark.,) 12 Cent. L. J., 192. But whatever may be the rule as to the duty of a witness to appear and testify in obedience to a subpoena duly served, it is clear from the cases cited that special services, other than attendance to give testimony on a trial, are not within the duty of any witness. Hence, a professional man is entitled to demand special compensation for such services as a chemical analysis, a post mortem autopsy, or any work ncessary to qualify such expert to furnish testimony. Your committee, in view of these considerations, therefore concluded that the objections so frequently urged against, the testimony of experts could be avoided by placing the amount of compensation in the hands of the court to determine, after the testimony had been given. In the third place, the right of the court to fix the number of experts in civil cases is conceded, and it is the universal practice. Fourth, in homicide cases parties are permitted to select their own experts, thereby avoiding the constitutional objections above suggested; but those selected by the court are to be paid by the county, the court fixing the compensation. The right given to the court to call in other experts, meets the demand of the reformers, and cannot be objectionable to the opponents of reform, if each party is given the right to select his own experts. This provision also takes a middle ground and avoids the objections that might be raised, which, if raised, would doubtless have caused the defeat of the law, as has been the case in other states. For the benefit of those who may desire to pursue their investigation of this subject further, we append herewith a list of the leading articles upon this subject, a majority of which were examined by your committee in the preparation of the bill before us. Respectfully submitted, WILLIS B. PERKINS, Chairman. MICHAEL BRENNAN, SAMUEL DOUGLASS, JOSEPH WALSH, HARRY D. JEWELL, BIBLIOGRAPHY. Justice Willard Bartlett, 34 Am. Law. Rev., 1. Judge William L. Foster, 11 Harv. Law Rev., 169. Committee. Judge G. A. Endlich, Report Penn Bar Association., 1899. Dr. A. B. Poore, Am. Lawyer, May, 1896. Dr. W. J. Herdman, Report Mich. Bar Assn., 1900. H. B. Hutchins, Mich. Law Rev. May and June, 1904. Clemens Herschel. 21 Am. Law. Rev., 571. Essay on Expert Test., 5 Am. Law Rev., 227. Dr. A. Walter Suiter, 27 Jour. Am. Med. Assn., 667. Dr. Solomon Solis Cohen, New York Medical Journal and Phila deliphia Medical Journal, Jan 7 and 14, 1905. Symposium. T. O'Connor Sloane, Rossiter Johnson, W. W. Gooding, Charles L. Dana, 138 N. Am. Rev., 608. Discussions by Drs. Hughes. Moyer, Marcey, H. S. Drayton and Bishop, 27 Jour. Am. Med. Assn., 667 et seq. Prof. Henry Fraser Campbell, 36th Annual Meeting, Am. Med. Assn., 1896. Editorial, 3 Cent. L. Jour. 297, review of discussion of Amer. Med. Assn. held at Atlanta, Ga., 1896. Dr. Persifer Fraser, Bibliotics. (Pub. 1894). Prof. Chas. F. Haines, 135 Journal Franklin Inst., 409, 436. Prof. Washburne, 1. Am. Law Rev., 49. James Fitz James Stephen, History of the Criminal Law of England. 1897. Prof. R. Ogden Doremus, 1. Crim. Law Mag., 315. Discussion, Penn. Bar Assn., 1898. Mr. Clark Bell, 13 Medico-Legal Jour., 23. 164 Littel's Liv., Age, 658. Taylor on Ev., Sec. 58. Best on Ev., Sec. 514. 1 Redfield on Wills, 103. Rossiter Johnson, 138 N. A. Rev., 605. Prof. Ordroneau, Am. Jour. of Insanity, (Jan. 1874.) Prof. John Ordroneau, 5 Am. L. Rev., 442. Discussion, Boston Medical & Surg. Jour., Oct. 22. Dr. W. W. Gooding 13 N. Am. Rev., 608. Dr. Putnam, Boston Med. & Surg. Jour. Oct. 22, 1890. A. R. Watson, 34 Am. L. Rev., 28. Editorial, 9 Albany L. Jour., 122. C. Goepp, 9 Albany L. Jour., 146. Article in 136 Boston Med. & Surg. Jour., 1897. Med. Expert Ev. and Juries, 10 Am. Lawyer, 195. Prof. Frank W. Clarks, 33 Pop. Science Monthly, 653. Dr. Persifer Fraser, Penn. Law Series, Oct. 1896. Wm. P. Mason, 56 Albany Law Jour., 209. Wm. P. Mason, 6 Science, 243. 1 Roscoe Crim. Ev., 139. Mr. Woodson, Kentucky Law Reporter, Feb. 1882. p. 477. |