12. As of 1967, United States District Courts in five judicial districts had established some form of court appointed medical procedure. 34 Ins. C. Jour. 115, 118 (1967). Opinion opposing the court appointed expert has been substantial over the years. Julien, Impartial Medical Plan, Ins. Law J. 213 (April 1960); Levy, Impartial Medical Testimony-Revisited, 34 Temple L. Q. 416 (1961); Berry, Impartial Medical Testimony, 32 FRD 539 (1963); Lambert, Impartial Medical Testimony: A New Audit, 20 NACCA L.J. 25 (1957). The statement by the advisory committee to the effect that the power of a trial judge to select an expert of his own choosing is "virtually unquestioned", is not as well grounded as the committee indicates. In that connection, the following statement is made by Wick and Kightlinger, Impartial Medical Testimony Under the Federal Civil Rules: A Tale of Three Doctors, 34 Ins. C. Journal 115, at 133: "As authority for the broad statement that courts "no longer question" this power, the Second Circuit cited Ex parte Peterson, Wignore and McCormick. Examining these authorities (except the Peterson case, which has heretofore been discussed and distinguished), they do not come close to upholding the court's power beyond question. Professor Wigmore states only that lack of such power "never will be conceded, so long as the Bench retains a true conception of its constitutional function and a due sense of self-respect." He is plainly expressing his views of what the law ought to be with respect to the scope of judicial power, while admitting to a split of authority on what the law is. In an article by Professor McCormick which the Second Circuit in Scott v. Spanjer Bros. Înc., (298 F.2d 928 (1962)—(Citation Added) also cites in support of its statement that the inherent power of a judge to call expert witnesses is no longer questioned, the author does state that the power to call witnesses is "fairly well recognized.'. (Emphasis supplied). As authority for this conclusion, Professor McCormick, in a footnote, cites six cases three upholding the power and three denying it. Apparently, in the case of a tie, the "ayes" have it." Sub-section (c) of Rule 706 contains the principal evil inherent in its adoption. While all concerned with the trial of law suits involving expert testimony recognize and accept the problem implicit in contradictory evidence of this nature, the suggestion that the court appointed expert be annointed with judicial authority amounts to creating a cure more destructive of the jury system than the disease to which its powers are directed. Immediately the jury is informed that one of the conflicting opinions has been rendered by an "impartial" expert of the courts choosing, the adversary aspect of the trial is at an end. For anyone of trial experience to believe that such an experts' opinion would not be absolutely taken as controlling by the jury is unlikely. How can the jury reject the testimony of the one expert witness who appears before them clothed in the robe of judicial approval? One of the most eminent trial lawyers in the nation, Harry Gair, said at the 1956 Proceedings of Section of Insurance Law (A.B.A.) (1965): "Buttressed as the witness is by the Court's sanction, selected to give the best possible truth, which is to say, to resist the ignorance or errors of partisan doctors, of what avail cross-examination?" In Lord, Book Review of Report of Special Committee of New York City Bar on Impartial Medical Testimony (McMillan 1956), 29 Temple L. Q. 472, at 474 (1956), the author states: "Any hope of persuading the jury to reject such an unsullied, untainted opinion would be forlorn, if not non-existent, even though the opinion may be wrong. The almost overwhelming likelihood is that testimony will prevail, not because of its validity, but because of its source.' The underlying basis for this criticism is not that the court appointed expert is a venal man, or one who is consciously biased and prejudiced. The opponents to court appointed experts do not ascribe dishonesty and avarice to the medical community with the same ease as the proponents, but point out that no man alive or dead has ever been truly impartial. All men are the product of their background, education, experience and knowledge. No body of opinion is more agreed than that of the medical profession itself that reasonable men may differ because of the fact that medicine is an art more than a science. There are no absolutes. There are widely differing schools of thought within the medical profession, which dictate differing views as to many common medical problems. This aspect of the problem was well stated by Justice Walter R. Hart of the New York Supreme Court in 2 The Plaintiffs Advocate (N. Y.) 23 (Oct. 1958) where he said: "I have heretofore stated that the doctors are assigned under a rotating system which introduces an element of chance into the situation. For instance, there is a difference of opinion with respect to injuries to the abdominal organs, one school holding that a normal appendix cannot be injured by means of a severe non-penetrating blow to the abdomen. Drs. Liniger and Melineus say yes; Drs. Jennings, Burger and Jacob say no. In the case of a diseased appendix Drs. Bissell, Kelly and Goldbeck say yes; Drs. Fowler and Keesler say no. Myocardial infarction due to trauma, Dr. Boas proponent; Drs. Master, Dack and Jaffee opponents. There is likewise a wide conflict on the causation of Parkinson's disease and neoplastic diseases. It will be readily seen that a plaintiff's case is won or lost, depending upon which doctor is next on the rotating list of the particular panel. In the case of a myocardial infarction, if it drew Dr. Boas he is in, but the next plaintiff would draw Dr. Masters and he would be out." This problem is not resolved by using a method other than rotating panel selection. If the physician is selected by deliberate choice of the trial judge, the problem is the same. What school of thought does the judge believe correct? Is the selecting judge even aware of the medical dispute? Perhaps the most fundamental flaw in the proposed rule is its willingness to depart from fundamental belief in the efficacy of the jury system as such. The principal proponents of the theory from its inception have been Wigmore and McCormick, neither of whom are noted for their belief in an adversary-jury resolution of such issues. This aspect of the issue was eloquently stated by Howard K. Berry in Impartial Medical Testimony, 32 FRD 539, at 544-45 (1963) as follows: "A persistent chipping and eroding, taking a minute and imperceptible privilege at a time, may finally cause an invaluable right, in the over-all plan of liberty, to be lost altogether. And this tragic subtraction is usually accomplished by the ill-advised efforts of the better citizens, acting in the utmost good faith, and under the impression that they are protecting and preserving the rights of people, instead of injuring them. "In a situation such as this, where the technical harm lies hidden deep under a cover of what might appear to be expediency, and the improvement of our plan of trial, it is necessary that the judges and lawyers, with their trained discernment, aided by their experience and practice, be vigilant to see that the wrong path is not taken up, and followed away. First an Impartial Doctor. Then an Impartial Traffic Expert. Then an Impartial Safety Engineer. Don't you see where the thing that you and I call "a fact question for the jury" is headed." The fears of Mr. Berry that encroachment on the jury system by use of courtappointed medical experts would be followed by proposals that the use of such expert witnesses be used in all possible fields of expertise, has been realized in proposed rule 706. The rule does not apply to medical experts only, but is of general application to all types of expert testimony. Analysis of the three reasons advanced by the advisory committee note for adoption of Rule 706 demonstrates the weakness of their position. (1) The committee states the rule is addressed to the problem of "shopping for experts". Rule 706 will not solve this problem, if it be a problem, in any particular. By express provision of the rule, in Sub-section (d), the right of the parties to shop for an call expert witnesses of their own selection is assured. (2) The committee next asserts they address themselves to the "venality of some experts". Once again, the rule does not grant any authority to the court to preclude the testimony of any expert called by the parties. Further, the rule does not and cannot give assurance that the expert selected by the court will be less venal than the expert selected by the parties. (3) The Committee last points out that many "reputable" experts are reluctant to involve themselves in litigation. Rule 706 likewise does nothing to resolve this problem. Sub-section (a) expressly provides that "An expert witness shall not be appointed by the judge unless he consents to act." There is little or no reason to suppose that an expert who is reluctant to involve himself in litigation will be less reluctant if called by a judge rather than a lawyer. CONCLUSION Preservation of the adversary-jury system is more important to the liberties of the American people than the miniscule difficulty inherent in the use of expert witnesses selected by the parties to litigation. There are no impartial experts; there are no impartial human beings. Rule 706 should be rejected in its entirety. At the very least, clear provisions must be made that the jury will not be informed directly or indirectly that one of the witnesses before them has been selected or approved in any manner by the presiding judge. CONGRESS OF THE UNITED STATES, FEDERAL RULES OF EVIDENCE The enclosed Committee Print of a tentative Subcommittee draft of H.R. 5463, a bill to establish the Federal Rules of Evidence, and for other purposes, is forwarded for your information, and any comments you may wish to make. Such comments should be in the Subcommittee's hands on or before July 31, 1973. Printed in bold type are the Rules as sent to the Congress by the Supreme Court. The bracketed material represents deletions recommended by the Subcommittee. The material in italics represents additions recommended by the Subcommittee. This reprint is being circulated for comment to the Judicial Conference of the United States, the American Bar Association, the State Bar associations of the 50 States, the District of Columbia Bar Association, and individuals and organizations of whose interest we are aware. Additional copies may be obtained from the Subcommittee on Criminal Justice, Committee on the Judiciary, House of Represenativies, Washington, D.C. 20515 (202-225-3926). Let me emphasize, that comments must be received by the Subcommittee not later than July 31, 1973. All comments timely submitted will be made available for study by the Subcommittee and its staff during the month of August. Enclosure. WILLIAM L. HUNGATE, Chairman, Subcommittee on Criminal Justice.* *Previously designated Special Subcommittee on Reform of Federal Criminal Laws. [COMMITTEE PRINT] [JUNE 28, 1973] 93d Cong., 1st sess., as amended by the Subcommittee on Criminal Justice, House Committee on the Judiciary NOTE: Changes proposed by the Subcommittee to the Rules of Evidence as transmitted to the Congress from the Supreme Court are shown as follows: The rules as transmitted to the Congress are printed in roman; brackets indicate material deleted by the Subcommittee; and italics indicate material added by the Subcommittee. A BILL To establish [rules of evidence for certain courts and proceedings] the Federal Rules of Evidence, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the following rules, which may be cited as the "Federal Rules of Evidence," shall be[] effective six months after the date of the enactment of this Act]. [the rules of evidence, to the extent set forth in such rules, in the United States courts of appeals, the United States district courts, the District Court for the District of the Canal Zone, and the District Courts of Guam and the Virgin Islands, and before United States magistrates]: TABLE OF CONTENTS ARTICLE I. GENERAL PROVISIONS Rule 101. Scope. Rule 102. Purpose and construction. Rule 103. Rulings on evidence: (a) Effect of erroneous ruling: (1) Objection. (2) Offer of proof. (b) Record of offer and ruling. (c) Hearing of jury. (d) Plain error. Rule 104. Preliminary questions: (a) Questions of admissibility generally. (b) Relevancy conditioned on fact. (c) Hearing of jury. (d) Testimony by accused. (e) Weight and credibility. [Rule 105. Summing up and comment by judge.] Rule [106] 105. Limited admissibility. Rule [107] 106. Remainder of or related writings or recorded statements. ARTICLE II. JUDICIAL NOTICE Rule 201. Judicial notice [of adjudicative facts :]. [(a) Scope of rule.] [(b)](a) Kinds of facts. [(c)(b) When discretionary. [(d)](c) When mandatory. [(e)(d) Opportunity to be heard. [(f)](e) Time of taking notice. [(g) Instructing jury.] ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS Rule 301. Presumptions in general in civil actions. Rule 302. Applicability of State law in civil [cases] actions. [Rule 303. Presumptions in criminal cases: [(a) Scope. [(b) Submission to jury. [(c) Instructing the jury.] ARTICLE IV. RELEVANCY AND ITS LIMITS Rule 401. Definition of "relevant evidence". inadmissible. Rule 402. Relevant evidence generally admissible; irrelevant evidence Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Rule 404. Character evidence not admissible to prove conduct; exceptions; of her crimes: (a) Character evidence generally: (1) Character of accused. (2) Character of victim. (3) Character of witness. (b) Other crimes, wrongs, or acts. Rule 405. Methods of proving character: (a) Reputation or opinion. (b) Specific instances of conduct. Rule 406. Habit; routine practice: (a) Admissibility. (b) Method of proof. Rule 407. Subsequent remedial measures. Rule 408. Compromise and offers to compromise. Rule 409. Payment of medical and similar expenses. Rule 410. Offer to plead guilty; nolo contendere; withdrawn plea of guilty. Rule 411. Liability insurance. ARTICLE V. PRIVILEGES Rule 501. [Privileges recognized only as provided.] General Rule. [Rule 502. Required reports privileged by statute. [Rule 503. Lawyer-client privilege : [(a) Definitions. [(b) General rule of privilege. [(c) Who may claim the privilege. [(d) Exceptions: [(1) Furtherance of crime or fraud. [(2) Claimants through same deceased client. [(3) Breach of duty by lawyer or client. [Rule 504. Psychotherapist-patient privilege: [(a) Definitions. [(b) General rule of privilege. [(c) Who may claim the privilege. [(d) Exceptions: [(1) Proceedings for hospitalization. [(2) Examination by order of judge. [(3) Condition an element of claim or defense. [Rule 505. Husband-wife privilege: [(a) General rule of privilege. [(b) Who may claim the privilege. [(c) Exceptions. [Rule 506. Communications to clergymen : [(a) Definitions. [(b) General rule of privilege. [(c) Who may claim the privilege. [Rule 507. Political vote. |