Medical Expert Testimony Richardson, was the right thing for the place. It is rare indeed for me to find everything so conspire with the natural feeling of the
moment. . . . I think the public will not realize what a great man it has lost. Of course, the position of the Chief Justice differs from that of the other judges only on the administrative side; but on that I think he was extraordinary. He had the business of the court at his fingers‘ ends; he _was perfectly courageous, prompt, decided. He turned 05 the matters that daily (211 for action easily, swiftly, with the
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least possible friction, with imperturbable good-humor, and with a humor that relieved any tension with a laugh. I never thought the time had come when it would be well for him to resign until this last term. when he seemed less rapid and certain than heretofore. l was beginning to worry when the solution came at the ideal moment. I think no one should repine, although to his children, to his friends. and certainly to me. the loss will be great.
Very truly yours. 0. W. HOLMES.
What Can Be Done to Improve the Conditions of Medical Expert Testimony? “THERE is no place in the common law scheme of trial," writes Judge Wil liam Schofield of the Massachusetts Superior
Court, in journal of Criminal Law and Crimi nology, where the medical expert can be put, “except among the witnesses. He cannot be a judge or a juror." Moreover, when the practice of mlling expert witnesses, who are now so often summoned to testify in actions for personal injuries, homicide cases, and will cases, was first introduced, they soon came to be treated by the courts just like any other witnesses. They were se lected and called by the parties, the pro duction of evidence and witnesses being not the duty of the court but the right of the litigants. The trial judge may in special circumstances order a person to be called as a witness who is shown to have knowledge of material facts; but, continues Justice Schofield, “this right of the judge is excep tional, and rarely exercised, and nowhere clearly defined." The custom, therefore, of calling medical expert witnesses ad libitum is fully established by custom, so fully es tablished that it cannot be changed except by legislation. Indeed there are some lawyers who aflirm that even legislation cannot change the custom, on the ground that it is a funda mental constitutional right. From this
proposition, however, Justice Schofield very emphatimlly dissents, in the following words:— “In 1905 a committee of the State Bar Association of Michigan, in reporting a draft of a bill which has been enacted by the Michigan legislature, said :— “The radical reformers say that the courts should select and fix the compensation of all expert wit nesses. 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.
"In January of this year a committee of the Bar Association of the State of New York reported :— “That every party to an action, civil or criminal, has the constitutional right to call such witnesses as he may deem important to the maintenance of his cause, and the right to cross-examine those who may be called against him.
“I do not assent to those opinions. There is no provision of the federal Constitution or of any state constitution, so far as my know ledge extends, which secures to a party the right to select his witnesses. The federal Constitution protects the right of trial by jury, of confrontation in criminal cases, and grants to the accused the right to com pulsory process to summon witnesses in his defense, and secures in all cases due process of law. The constitutions of many of the
