the supposed evils of the present system of procuring expert testimony in cases of alleged lunacy have been greatly exaggerated, if they are not wholly imaginary. Such cases are not decided by the experts. Having given their opinions under a direct examination, they are subjected to a sharp cross-examination by skillful attorneys, who subsequently, and after sufficient time has been given for study and reflection, are permitted to argue the case to the jury. The judges comment upon the law and facts relating to the case; and, finally, the jurors, rendered thoroughly familiar with all the points in dispute, and acting independently, render the verdict: and they are better able to do this intelligently than they would have been if there had been no discussion.
It is evident also that the supposed evils are not limited to one, but that they extend in an equal degree to all other classes of expert testimony.
Those who are of opinion that the evil is actual and serious have from time to time suggested various remedies.
It has been suggested that experts should be appointed as advisers to the courts, by the State or municipal governments.
Against this method lies the grave objection that the public can have no assurance that the best men would be chosen. The appointing power might be influenced by personal or political motives, rather than by the acknowledged fitness of the person chosen; and it could provide for experts in only one class of cases, since no man could be an expert in all cases in which his services were required.
If it is proposed that the courts should themselves, as occasion might arise, make the appointments, the method would still be liable to the objection that even the courts could not always be relied upon not to make choice of improper men, either because they were uninformed, or entertained personal friendships.
To a certain extent, in cases where the ends of justice plainly demand the exercise of this authority, the courts, or the attorneys who officially represent the courts or the Government, are, under existing laws, permitted to summon expert witnesses; and, in the narrow limits within which this power is now authorized and exercised, it can do no harm. It is only against the exercise of this authority as an exclusive or even general mode of obtaining expert medical testimony, that I desire to record my protest.
In whomsoever the power to make these appointments may be vested, and in whatever manner it may be exercised, and whether the experts may be subject to cross-examination or not, in either case it seems to me liable to work injustice. It happens often that the accused comes into court under the imputation of a verdict of the coroner's jury, and under the adverse influence—more or less—of a presentment or indictment of a grand jury, both of which may be, and usually are, based upon ex parte testimony. The State or district attorney is
