A Legal View of the Schley Inquiry. plicant's counsel objected that this was "very adroitly put," and hence the question was changed. The applicant's counsel were not to be outdone in ingenuity. They asked, with re gard to the movement on May 31: As a matter of fact, treating it as a reconnoissance, was it not a success in finding out and de veloping things not known?" The Judge Advocate said "that you can not make an opinion a fact," but he did not object to the question. An entertaining episode was when, in cross-examining a witness as to the weak ness of land batteries when the "New York passed them during the battle of July 3, Mr. Rayner asked, "You stand to your opinion?" The president: "We do not want opinions." Mr. Rayner: "I did not know he had given me an opinion. I thought it was a fact to which he was testifying."
EVIDENCE OF OPINION. Notwithstanding the court's authority to pdmit or exclude evidence at its discretion, the clearness and constant progress in the examination of the witnesses proved the value of the assistance of lawyers experienced in the application of our rules of evidence. It required some pains and a good deal of energy to lead the court to an appreciation of such criticism, but after the first part of the examination, a discretionary mode of operation was practised which was sensible. The most interesting part of the rulings of the court upon evidence was concerning questions to experts concerning their opin ions, and the answers of experts involving their opinions. So many theoretical lectures are given to lawyers and to the public, es pecially by scientific experts, as to how much better it would be for the ascertainment of truth if experts were exempt from the rules of evidence requiring them to stick to the
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questions asked them, and subjecting them to cross-examination, that it was fortunate to have here an opportunity to observe how a cloud of witnesses, experts before a court of experts, managed to unload their conflict ing memories, their understandings, and mis understandings. In such company the Judge Advocate deserved the sympathy as much as he earned the appreciation of the legal profession. He had to ask questions calling for opinions, defend them against objections, and, never theless, advise the court that, while they bad the power to admit any questions and answers, the weight of authority was against some of the questions which he asked. For instance, the court through him asked, "Was every effort, incumbent upon the command ing officer of a fleet under such circum stances, made by the applicant to capture or destroy the "Colon" as she lay at anchor in the entrance to Santiago harbor, May 27 to 31, inclusive?" The witness replied, "No, I don't think it was." The answer seems to have been given be fore the objection was made, but upon ob jection made by the applicant's counsel, that the question called for the witness's opinion, the president said: "You cannot ob ject to our questions." Whereupon the applicant's counsel ar gued that a court of inquiry was composed of experts who were to give their own opin ion upon facts which they should find, but were not to hear even the opinions of other experts. After citation of authorities and discus sion, the Judge Advocate said. "I believe the weight of authority in a case of this kind is against asking the opinions of witnesses; but I want to advise the court that they are en titled to the opinion of any witness if they desire it." The court then withdrew the question. The importance of the objection appeared from the answer already stated, which was,
