632 THE AMERICAN JOURNAL OF SOCIOLOGY
incapable of dealing with the complex questions of admiralty law and has never been called therein, how much more reasonably does the objection apply to criminal trials ! It is not an exploded theory or obsolete fact that criminal lawyers appeal more to the sympathy than to the reason of jurors. Sentimentality and sympathy have too long controlled in courts of justice, in charitological and penal institutions, and in the general treatment of defective and delinquent classes. Society is as seriously handicapped by the attitude today as was the criminal by the rigorous system characteristic of early English and Roman law. Absolute justice may seem less humane in individual instances, but the resultant good to society is incalculable.
The question of expert testimony is of equal importance with the jury system. The rule relating to it is almost uniform, /. e., that when, in the discretion of the court, it is a proper case for expert testimony, either party may call qualified persons, who shall give their opinion, which is generally based upon hypothetical questions arising out of the evidence in the case.
In its relation to criminal cases the testimony of such experts is so imperfectly secured as in many cases to negative its value and in others to reduce the value to a minimum. Where expert testimony is introduced by persons selected by the opposing counsel, the result necessarily is a flat contradiction, as each selects only those favorable to his own cause. Where evidence is secured in this manner, a high degree of discrimination is required, which the average juror does not possess.
It is proposed that there shall be a board of examiners which shall be permanent or selected by the court, and which shall not be attached to either party or be remunerated by them. In the United States the jurists are the greatest opponents of the movement that legislation should provide for the creation of these boards and should consider all other expert testimony as opinion evidence, and no exception to the rules governing the latter. It is also proposed that the opinions of this board be not based upon hypothetical questions, but that its mem- bers should have a personal knowledge of the criminal and of all matters connected with the crime.
In 1894 the Medical Society of the County of New York appointed a committee to consider the matter. It recommended a law pro- viding for the appointment of a commission of experts by the courts. It suggested that the attorneys should agree to the commission, and that all members of it should have equal facilities for examining the
