Expert witness

“ When expert testimony was first introduced it was received with marked respect. The expert witness was counted as a professor in his specialty, and his word was almost final. Experience, however, has materially altered all this. The field from which the expert may be cited has been vastly broadened, whilst at the same time his testimony is accepted with much more caution, and less credence. ”

“ While the Court, or Judge, determines the competency of the witness to testify as an expert, the weight to be accorded to his testimony is for the jury to decide. The testimony of an expert is to be weighed and tested like any other kind of evidence, and is to receive just such credit as the jury may think it entitled to. ”

“ The evidence of
I. Common witnesses of Facts which they have observed. They state the minor premiss of the forensic argument. Those who can describe technical matters which they have seen are skilled common witnesses: medical men usually appear in court as skilled witnesses. Job’s “I shall see for myself, and my own eyes shall behold, and not [Pg 9] another,” indicates the correct attitude of a common witness of fact.
The testimony of
II. Expert witnesses concerning their Opinions. They state the major premiss of the syllogism, whose conclusion is found in the verdict of the jury. ”

“ Where a witness is called to testify to handwriting, from knowledge of his own, however derived, as to the hand of the party, he is not an expert, but simply a witness to a fact in the only manner in which that fact is capable of proof. ”

“ In all these cases it is to be observed that the expert is to speak from no knowledge of the particular facts which he may happen to possess, but is to pronounce the judgment of skill upon the particular facts proved by other witnesses. Of course the court must be first satisfied that the witness offered is a person of such special skill and experience, for if he be not, he can give no proper assistance to the jury ”

“ In reality the testimony of expert witnesses is very good evidence. If it is given in plain and understandable English and the jury think the expert a clean-cut, sensible man, it is just what the jury want to learn. ”

“ Rule 302 of the Military Rules of Evidence is amended by changing paragraph (b) (2) to read as follows:
``An expert witness for the prosecution may testify as to the reasons for the expert's conclusions and the reasons therefor as to the mental state of the accused if expert testimony offered by the defense as to the mental condition of the accused has been received in evidence, but such testimony may not extend to statements of the accused except as provided in (1) . ́ ́. ”

“ As an expert, he could properly aid the jury by such evidence, although it would not be competent to be given by an ordinary witness. It is upon subjects on which the jury are not as well able to judge for themselves as is the witness that an expert as such is expected to testify. ”

“ Many an expert has made a poor exhibition in the witness-box by failing to convey to a jury the impression produced on his own mind by a slight piece of evidence, the proper understanding and interpretation of which can only be grasped by those who have learned how to recognize faint signs. ”

“ All expert witnesses should be skilled witnesses. Experts sometimes become common witnesses when examined as to exhibits produced in court. The weakness of expert testimony is, in practice, its ex parte nature. Medical men called to give evidence as to fact, must beware of being unconsciously drawn into offering expert testimony. ”

“ In regard to the objection that these witnesses were not qualified as experts, in addition to the fact that three of them were on board of the tug at the time, and in its service, the court charged the jury that the value of expert testimony depended very largely upon the skill, the information or the knowledge, and the experience of the witness; and that, in giving weight to the expert testimony, the jury should be careful to ascertain what the evidence established as to the truth of the bypo hetical questions put to the witnesses by the counsel on the one side and on the other. ”

“ With such limited qualification it is no matter of surprise that expert testimony is sometime made to appear at very great disadvantage. Incompetent and mercenary witnesses will seek employment, and since there are always two sides to a case, and on each side lawyers who spare no efforts for victory, there is a chance for every kind of witness, as there is for every kind of attorney. ”

“ At the time of judging, the witnesses are not brought to the bar as in England, but the ‘confrontation’ and ‘recollement’ only are produced; and as each witness has been separately examined, without knowing what any other has said, it is a good way of eliciting the truth. It is all important, you must perceive, for the accused to be on the alert to discover, if possible, any falsehood in the witnesses. ”

“ Indeed, it is often a wonder to me that witnesses of ordinary events who are called upon in court to relate what they saw after a considerable lapse of time are as accurate as they are, considering the questioning they often go through from interested parties, neighbours and friends, and the constant and often biased rehearsing of the event. The court asks the witness to tell the truth, the whole truth, and nothing but the truth. ”

“ TO determine exactly the credibility of a witness, and the force of evidence, is an important point in every good legislation. Every man of common sense, that is, every one whose ideas have some connexion with each other, and whose sensations are conformable to those of other men, may be a witness ”

“ It is often wise to break the effect of a witness's story by putting questions to him that will acquaint the jury at once with the fact that there is another more probable story to be told later on, to disclose to them something of the defence, as it were. ”

“ Experience does not dispel this illusion. Whether actual training in another direction dulls the natural and free outlook we desire in the witness, or whether, in our profession, education presupposes tendencies too ideal, whatever be the reasons, it is a fact that our hardest work is generally with the most highly educated witnesses. I once had to write a protocol based on the testimony of a famous scholar who was witness in a small affair. It was a slow job. Either he did not like the terms as I dictated them, or he was doubtful of the complete certainty of this or that assertion. ”

“ Opinion.—The rule excluding expressions of opinion also dates from the first distinction between the functions of witnesses and jury. It was for the witnesses to state facts, for the jury to form conclusions. Of course every statement of fact involves inference, and implies a judgment on phenomena observed by the senses. And the inference is often erroneous, as in the answer to the question, “Was he drunk?” A prudent witness will often guard himself, and is allowed to guard himself, by answering to the best of his belief. ”

“ What is aimed at is not personal respect for the judge, but for the judge’s function, which the witness identifies with the judge’s person. If he has such respect, he will find it worth the trouble to help us out, to think carefully and to assist in the difficult conclusion of the case. There is an astonishing difference between the contribution of a sulking and contrary witness and of one who has become interested and pleased by the affair. Not only quantity, but truth and reliability of testimony, are immensely greater in the latter case. ”

“ Every lawyer knows how lightly the evidence of a non-mi-recordo witness is esteemed. The testimony of false witnesses will not be uniform in its texture, but will be unequal, unnatural, and inconsistent. ”

“ The examination of a witness ought to be conducted by the witness standing up and the counsel standing up, and looking each other in the face, without the counsel directing his remarks to the jury by turning towards them instead of turning towards the witness. ”

“ The only thing to be done, especially when it is permissible for other reasons, is to tell the witness that a confession exists and to call to his attention that it is not yet evidence, and finally and above all to keep one’s head and to prevent the witness from presenting his evidence from the point of view of the already-established. In this regard it can not be sufficiently demonstrated that the coloring of a true bill comes much less from the witness than from the judge. ”

“ If you wish to know whether a man has committed a certain crime, and you hear a number of witnesses against him, one of whom only gives careful evidence with dates, details, and so forth, and if you can then prove that this witness has lied upon all the points which supported his principal accusation, you are in a fair way to winning your case. ”

“ There are many more satisfactory tests of the truth of parol testimony than that of character of the witnesses. Where the facts sworn to are capable of contradiction, they may be proved by others not to be true; and when they are not, the internal evidence is often more convincing than any other. A shrewd witness, who is swearing falsely to something which cannot be disproved by direct testimony, will confine his recollection wholly to that single fact, professing a want of recollection of all the facts and circumstances attending it. ”

“ The witness who gives evidence merely from memory, and not from the knowledge of the case then present to his mind, may tell a straight story, but one not so straight will often better secure belief. The skilful lawyer can generally detect in the perfection of the story the vice of the evidence. ”

“ CHAPTER VII SILENT CROSS-EXAMINATION
Nothing could be more absurd or a greater waste of time than to cross-examine a witness who has testified to no material fact against you. And yet, strange as it may seem, the courts are full of young lawyers—and alas! not only young ones—who seem to feel it their duty to cross-examine every witness who is sworn. They seem afraid that their clients or the jury will suspect them of ignorance or inability to conduct a trial. ”

“ If the witness knows what evidence the judge wishes to bring out, and that the lash will be applied until such evidence is forthcoming, it is ten to one that he will say what is desired, irrespective of the facts. ”

“ But then a wise and upright judge, assured of the truth of the evidence in the main, and of the integrity of the individual, will not suffer unessential, apparent inconsistencies to stifle and bury the body of testimony at large, but will either extract from the witness what may account for them, or show them to be immaterial. ”

“ A word remains to be said of the witnesses. Perhaps the rarest thing connected with the administration of justice all over the world, is an intelligent, perfectly impartial, clear-headed, discriminating witness; one who distinctly knows all he says, fully appreciates the effect of his words on the jury, and who has the disposition to submit what he knows solely to the law and the evidence. Men of experience are of opinion that an oath usually extracts the truth. ”

“ The custom of permitting a witness to wander at will over the entire field of knowledge, hearsay, surmise and opinion has several distinct advantages over our practice. In giving hearsay evidence, for example, he may suggest a new and important witness of whom the counsel for the other side would not otherwise have heard, and who can then be brought into court. ”

“ An account of an extraordinary occurrence given by an honest witness is, of course, generally preferable to a statement of the same occurrence merely obtained from hearsay; and the evidence of the witness deserves all the greater attention if he shows himself to be an intelligent and keen observer. ”

“ You might think a witness a person to be treated with respect, to be attended to, to have every facility offered him for giving his evidence at the least cost of time and trouble possible, consistent with the demands of justice, and the vindication of law and authority. ”

“ Each witness must be alone when he sees him, so that no two may speak to what occurred at the same spot or moment of time; but, with this reservation, each may safely indulge his imagination with any account of the interview which he has wit to make consistent with itself, and firmness to abide by, under the storm of a cross-examination. “The force of falsehood can no farther go.” No rehearsal is necessary. Neither of the witnesses needs know of the existence of the others. The agent gives to each witness the name of the spot at which he is to place the prisoner. ”

“ A very common type of witness, met with almost daily, is the man who, having witnessed some event years ago, suddenly finds that he is to be called as a court witness. He immediately attempts to recall his original impressions; and gradually, as he talks with the attorney who is to examine him, he amplifies his story with new details which he leads himself, or is led, to believe are recollections and which he finally swears to as facts. ”

“ Gentlemen, you cannot believe any witness unless his evidence is reasonable. Every witness has to be corroborated by the naturalness of his story. Every witness is to be corroborated by his manner upon the stand and by the thousand little indications that catch the eye of a juror or of a judge or of an attorney. Congress has passed a law allowing defendants to swear when they are put upon trial. Will you tell me that that law is a net, a snare, and a delusion, and the moment a defendant takes the stand the prosecution is to say, "Of course he will lie"? ”

“ Presuppositions of Evidence-Taking.
One of the most important rules of evidence-taking is not to suppose that practically any witness is skilled in statement of what he remembers. Even of child training, Fröbel [51] says, “Men must be drawn out, not probed.” And this is the more valid in jurisprudence, and the more difficult, since the lawyers have at most only as many hours with the individual as the teacher has years. However, we must aim to draw the witness out, and if it does not work at first, we must nevertheless not despair of succeeding. ”