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But this was not the only case. Often it happened that either the public prosecutor or some private person, either individually or through the public prosecutor, would present to the Mayor his grievance in that he personally had suffered false usage at the hands of tradesmen, e. g., selling him putrid meat, or bad wine. In these cases the Mayor would likewise summon persons of the trade of the man accused, as being well acquainted with the facts and their verdict would decide and the Mayor direct sentence accordingly.*
These cases at least show that in an urban community where alone for the most part questions involving special skill would come up, the practice was well established in the fourteenth century of having the issue actually decided by people especially qualified.
The special jury continued as an institution of England. So we find in 1645 + that the court summoned a jury of merchants to try merchants' affairs “because it was conceived they might have better knowledge of the Matters in Difference which were to be tried, than others could, who were not of that Profession.”
Blackstone speaks of the special jury as still an existing institution though it had then for the most part been limited to cases where a "struck” jury is demanded owing to a supposed bias in the sheriff; a form of impanelling a jury which went under the same name as the jury of experts, and which exists to-day.
I mention this form of using expert knowledge, not because it is a feasible or practical means of solving our present question, but to show that our present method of using experts as witnesses was not the earliest or the only means used.
The second method mentioned above was to summon to the advice of the court certain skilled persons to help it out of its difficulties. I wish particularly to distinguish here between what we should to-day call matter of fact for the court and matter of fact for the jury. The cases I shall mention are those in which during the procedure incident to the conduct of a case there arose some question of fact which the court had to decide. That is, the court having no rule of law to administer and not intending to establish any, had a mere question up of the decision of something in that particular case, and summoned experts to help it where its knowledge was lacking.
*The following are instances of this:
Selling putrid victuals, the prosecution being apparently public, no complainant appearing in the case: Riley, pp. 328 (1365), 408 (1377), 448 (1381), 471 (1382), 516 (1390)
Selling putrid victuals, private prosecution; Riley, pp. 266 (1351), 464 (1382).
Malpractice by a surgeon, whether the prosecution was public or private does not appear: Riley, p: 273 (1354).
#Lilly's Practical Register, II, 154.
In 1345* in an appeal of mayhem the court summoned surgeons from London to aid them in learning whether or not the wound was fresh. This was, however, in deciding whether or no the appellant should be allowed to go to trial at all. In 1506" it was discussed collaterally by the court and left in doubt whether the question of the appellant's wound, as permanent or not, was a proper question for the court or for surgeons. Perhaps the learning in the procedure of appeal of battle had become somewhat archaic in 160 years.
Again in construing a bond in 1494 which contained certain doubtful words, the court called to its assistance certain "masters of grammar,” who incidentally failed to help it much. Again in 1555 ft we find the court saying that it is accustomed to call in grammarians to help it interpret the pleas before them when the court's Latin halts a little. The same usage became well established in the interpretation of commercial instrumentstand in the eighteenth century extended itself, as we know, not only from decisions made by the court upon the facts, but even to the rulings it made upon points of law For example Lee, C. J., in 1753 $ charged the jury upon the liability of the parties in accordance with the opinion of certain merchants who had testified.
Lord Hardwicke also ruled in accordance with the views of the reputable merchants whom he summoned. SS
Even Lord Holt before deciding the celebrated case of Buller v. Crips asked the opinion of London'merchants as to the effect of refusing negotiability to promissory notes.
The real question that arises is how to put at the disposal of the jury the knowledge of experts in their decision of the issue. This though a kindred question should be sharply distinguished.
Before considering this question we must however try to discriminate between an expert witness and any other. First it must be remembered that an expert witness may have observed the actual facts upon which the issue turns; then he is able to testify to them as well as to his inference from them and he may be therefore both a common and an expert witness in one. But it is not as a witness of facts at all that his position is peculiar; it is because as an expert witness he is allowed to testify to his conclusion from the facts, which he has either himself observed or which are in evidence from the testimony of others. His position is only peculiar in that a common witness is forbidden to testify to conclusions, and the history of the origin of expert witnesses must necessarily be simply the history of the exception in his favor to the rule that witnesses shall testify only to facts and not to inferences.
*Anonymous Lib. Ass 28 pl. 5 (a8 Ed. III.) **Anonymous, 21. H. VII, 33 pl. 30. #Anonvmous 9 H. 7, 16 pl. 8. 1+Buckley v. Thomas, i Plow. 118. For such a case in 1649, see Pickering v. Barkley, Styles 132. $Fearon v. Bowers, 1 H. Black, 304, note a. $$ Ekins v Macklish, Ambler 184(1753), and Kruger v. Wilcox, Ambler 252 (1755). 96 Mod. 29 (1703).
See also a late case: Chauraud v. Angerstein, Peake 43 (1791).
This is better explained by considering briefly the rise of the rule as to conclusions. It is common learning to-day that originally and indeed for many years the jury had no witnesses present before them at all. They went about before or during the trial informing themselves as they might of the facts at issue. Not until the middle of the fifteenth century was even the practice of summoning witnesses well settled as an incident to the trial, and it was still later that any compulsory process became available.*
That the rules of evidence are merely certain regulations to govern the evidence which the jury shall hear and that they are the offspring of the judicial control of the verdict, Mr. Thayer has made entirely clear. But these rules grew up but slowly and through the decision of judges, gradually eliminating certain material from the mass of what witnesses might say in court.
The rule that a witness shall not testify to mere opinion or conclusion is such a rule and its origin no doubt was, if we could trace it, due to a gradual recognition by successive judges of the advantage of curtailing the trial and simplifying the issue by leaving out redundant maiter. I call this redundant because in fact the opinion of the witness upon the issue can have no useful bearing on the case, and trenches on the jury's function. It is the jury that should form the opinion, make the conclusion and say truly—vere dicere—the fact, not the witness; he merely says what he knows. Therefore this rule of evidence-if in view of this it may be properly called such,-is somewhat different from those
*Mr. James B. Thayer, in his "Preliminary Treatise on Evidence at the Common Law,"
pp. 122-136 concludes that the practice became established about the middle of the isth century, though it remained an unimportant incident of trials for some time thereafter.
which shut off certain facts actually probative of the issue. Moreover, it was recognized comparatively early in the history of rules of evidence. For we find Vaughan, C. J., that great defender of the right of juries to go “on their own knowledge,” well saying in Bushell's case in 1671.* “The Verdict of a Jury and Evidence of
а a Witness are very different things, in the truth and falsehood of them; a Witness swears but to what he hath heard or seen, generally or more largely, to what hath fallen under his senses. But a Juryman swears to what he can inferr and conclude from the Testimony of such Witnesses by the act and force of the Understanding, to be the Fact inquired after, which differs nothing in the Reason, though much in the punishment, from what a Judge, out of various Cases consider'd by him, inferrs to be the Law in the Question before him.” The distinction cannot be put more plainly
Yet in 1622 it had been said thatf a witness could testify to the very issue involved, that he knew it to be true, if another testify to the circumstances in detail; i. e., the conclusion of the witness upon the very issue is admissible if supported by other evidence.
I cannot find any other cases in the seventeenth century which seem to illustrate the rule that the conclusions of a witness are inadmissible as such. The rule would seem to be one obviously necessary early in the history of the control by the courts of trials, and it is very likely that many cases exist which illustrate the rule, but I think it may fairly be said that in Vaughan's time the citation above quoted shows that the rationale of the rule was well grasped, even if it was not always enforced.
As to the exception to the rule in favor of expert witnesses, of course that could not exist until the rule did, for if the exception proves the rule, a fortiori the rule is a condition to the existence of the exception. I can therefore only cite several cases in which expert witnesses did testify finishing by some cases where their testimony was consciously admitted by the court as an exception to the rule regarding conclusions.
In Alsop v. Bowtrell, I 1620, certain physicians testified that it might well be that a woman bore a child forty weeks and nine days after her husband's death, and yet it be his child, for the time might be delayed by ill usage and lack of strength. And so the
*Vaughan, 142, 22 Car 2. +Adams v. Canon, Dyer 53b, note. Cro Jac. 541.
court, agreeing with the physicians, delivered to the jury that it might be so. The case involved the legitimacy of the child. I think it should be noted in this, the first case which I have found of real expert testimony,—by which I mean a case where the conclusions of skilled persons were submitted to the jury,--that the witnesses are not stated to have been called on either side; and from the meagre report we have, they seem to have satisfied the court in the first instance of the truth of their conclusion before the evidence went to the jury. The court finally found the general proposition to be true and delivered it as datum to the jury to use in their final conclusion.
In the Witches' case* in 1665 Dr. Brown, of Norwich, was desired to state his opinion of the accused persons and he was clearly of opinion that they were witches and he elaborated his opinion by a scientific explanation of the fits to which they were subject. It did not appear in this case by whom Dr. Brown was called as a witness and his position is doubtful for our purposes, though he spoke of a question of fact.
Rex v. Pembroke,t in 1678, is more instructive. This was a trial of murder and the question was up as to the real cause of the deceased's death. Physicians were called on either side who testified under the examination of the attorney for the prosecution,or of the prisoner, both as to what were the causes of certain symptoms observed upon an autopsy they had seen and as to the general proposition as to whether a man can die of wounds without fever. It is true that the court took a hand in this evidence, but that is common enough to-day, and the only striking feature of the whole matter is in the fact that no one seemed to think it unusual. We must conclude from this that the rule excluding the conclusions of witnesses was not enforced often enough to make such a violation worth notice.
The same kind of case is found in the following year in Rex v. Green, where a physician is called for the prosecution and testifies that the deceased could not have died from certain wounds upon his body as they gave no blood, but that he must have died from being strangled. Still another case of the sort is Rex v. Coningsmark, ß in 1682.
*6 How. St. Tr. 697. t6 How. St. Tr. pp. 1337, 1338, 1340, 1341. 17 Howell State Trials, 185, 186. $9 Howell State Trials, 21