"The unsatisfactory quality of expert testimony has been the subject of frequent comment, and it has induced judicial action. (See Opp v. Pryor, 294 Ill 538, 545; 128 NE 580 [1920]; Kemeny v Skorch, 22 Ill App 2d 160, 170; 159 NE 2d 489 [1959]; see also Supreme Court Rule 17-2, Ill Rev Stat 1963, chap 110, par 101.17-2; Cleary, Handbook of Illinois Evidence, secs 3.3, p 41, 11.10, pp 190-191.) An individual becomes an expert by studying and absorbing a body of knowledge. To prevent cross-examination upon the relevant body of knowledge serves only to protect the ignorant or unscrupulous expert witness. In our opinion expert testimony will be a more effective tool in the attainment of justice if cross-examination is permitted as to the views of recognized authorities, expressed in treatises or periodicals written for professional colleagues. (Cf. Model Code of Evidence, Rule 529.) The author's competence is established if the judge takes judicial notice of it, or if it is established by a witness expert in the subject." Dolcin, on the other hand, tells us about Reilly v Pinkus, supra, and proceeds (pp 746-747):

"Reilly v Pinkus, we think, stands for the general proposition that an expert witness who bases an opinion to a significant degree upon his reading may be cross-examined as to that opinion by reference to other reputable works in his field. It is not necessary for the witness to have relied in his testimony upon the particular authority the cross-examiner seeks to use. And we do not think that the Court limited its ruling to cases involving fraud. The Reilly case also hold that the trial examiner has broad discretion to determine the extent of the cross-examination on written authorities. He probably has, in some cases, discretion to determine whether there should be any such cross-examination at all. But it is error to exclude such questions by blanket rule, without more."

Is this question of judicial notice to be one of judicial discretion, depending upon the judge's own perusal of that which is tendered for notice? May the trial judge, in effort to determine this novelty of judicial notice, employ the usual and customary rules by which judges take or refuse notice, or-not being a medic or expert skilled other than at law-must he resort to study of each submitted text or publication to make his decision? What if counsel on both sides, each armed with a trunkload of publications the quality and currency of which is warily avoided by all called experts, insist regardless upon judicial notice of all of their respective wares? Are we not-now-committed to a new and uncertain field of judicial notice where, the trial judge having read parts or portions of proffered Hirsute On Headaches countered by Fuzzy on Diseases of the Head, is required to choose between the two (or tell the jury to choose), even though Hirsute and Fuzzy have not been sworn and the only verity of their "learned" treatises is the fact of printing and publication thereof, say at Walla Walla, or Oshkosh, or Bad Axe? I think it high time for retort that this Court of 1971-1972 has already made of itself a tear-down tribunal of precedential demolition; one with insufficient capability of construction anew of that which might at least equal in excellence and eminence what is so airily destroyed.

I conclude with due remark that if there is to be, in Michigan, judicial discretion to deny such a projected cross-examination as well as discretion to grant same, Judge Kaufman below had far better reason to say "nay" when he did than "yea". Consider the appendix hereof, and note my thus far unchallenged detail of the way the question discussed in our respective opinions is supposed to have been raised and saved for review.

APPENDIX

(That part of the cross-examination of Dr. Attenson dealing with identity of and claimed reliance upon medical publications.)

Q. [by plaintiff's counsel, Mr. Peisner]: Doctor, I will ask you, is Principles of Anesthesiology by Vincent Collins one of your authorities for the administration and use of anesthetics, anesthesia?

A. No, I wouldn't say that it really is. I did not use that book to any great extent while I was in training. There are so many, it is difficult to isolate one solitary book.

Q. All right, what is your authority?

A. Basically your authority comes more from clinical experience, from journals, from meetings. Because most of these books are dealing with anesthesia on an inpatient basis; whereas, anesthesia on an outpatient basis is an entirely different piece altogether.

Q. Do you rely on any medical text book as your authority for anesthesia? Mr. Gruber [defendants' counsel]: Well, your Honor, wait a minute now; I think that if he was to ask him did he rely in this case, it may be proper, but if he is asking him if he ever read a text book—

The Court: That's not the question.

Mr. Peisnse: That's not the question.

Mr. Gruber: Well, then, I will state the objection on these grounds; that excepting this case, nothing else is material. We are talking about one patient and one case. And if he relied on anything for that, I suppose he is entitled to ask him. But whether he-I don't see the materiality or relevancy

The Court: Well, it could be material and relevant, unless he treats each patient differently. We will take the answer.

A. Would you repeat your question?

Q. (By Mr. Peisner, continuing): What is the authority you rely on then for the administration of anesthetic, generally speaking?

A. In your office?

Q. You, yourself.

A. Clinical experience, Dripps, Eckendouf and Vandam.

Q. How do you spell that?

A. D-r-i-p-p-s, V-a-n-d-a-m.

Q. Yes. Any others?

A. To a good extent there are parts from many journals which discuss and go over various forms of administering an outpatient general anesthetic.

Q. Any text books other than that one by Vandam?

A. We read through, have looked at our texts. Do you want me to list all the texts I've looked at?

Q. Well, the ones that you rely on.

A. Well, I don't understand what you mean, rely on.

Q. Rely on as the authority that you studied froin, and whose information and instructions are-form the basis for your administration of a general anesthetic. A. Well, like I said, the basis of these books are on inpatient, and you are dealing with outpatient and you must modify it, therefore.

Q. All right. With such modifications, what would you rely on other than Vandam?

A. I've read Monheim's book.

Q. Do you rely on it?

A. As much as I rely on a journal.

Q. Any others?

A. Offhand, I can't think of the names of the different books.

Q. How about Adrian Nuy's book?

A. Once again, Adrian Nuy's book was not stressed, because we stress, basically, if you are going to deal with pharmacology which is what he deals with by and large, we would go to other texts such as Goodman and-Bess and Taylor. There are other books in the same area, or similar areas.

Q. But you do rely on Vandam and Monheim?

A. I rely on them, yes, for basic principles which must be then expounded on as far as how they suit the patient or the situation.

Q. To the same extent, you also rely on the Principle of Anesthesia by Vincent Collings?

A. No. I have to-honestly must admit that I'd never really spent that much time with that book.

Q. The book you refer to by Vandam is Introduction to Anesthesia, by three authors, Dripps, Eckendouf and Vandam?

A. Yes.

Q. In order that there won't be any question about it, I'll show you the flyleaf of it. It's Introduction to Anesthesia, The Principles of Safe Practice. And the authors are Robert D. Dripps, James E. Eckendouf, and Leroy D. Vandam; is that correct?

A. Yes.

Q. I will read you, from page 179

Mr. Gruber: Just a minute.

Your Honor, once again we are right back to where we started from. I don't think a proper foundation has been laid. The question has not been asked or answered as to whether or not this book, or any other book for that matter, was relied on in the treatment of the plaintiff in this case. And unless it was I don't think there is a foundation for it.

Mr. Peisner: Shall I answer that, your Honor?

The Court: Go ahead.

Mr. Peisner: Well, to begin with, I believe Mr. Gruber is contradicting himself. When he was examining the doctor this morning he asked him about his general procedures in the office with every patient he had. And when I asked him to restrict

himself to this one patient I was overruled, because the court felt that his entire procedures as to all of the patients was material, and we should take it.

Therefore, Mr. Gruber is now trying to contradict himself.

Mr. Gruber: Well, don't accuse Mr. Gruber of trying or not trying anything. We are talking about an entirely different matter, Mr. Peisner. I think you should respond to this motion.

Mr. Peisner: Now, this motion-this objection, in and of itself-the doctor relies said that he does rely on this book. He made no qualifications of this. And I hardly think it necessary to ask him if he administers anesthetic one way to one patient and another way to another patient. If he relies on it, he relies on it. Mr. Gruber: As a matter of fact, maybe you should ask that question. The Court: Well, he said he relies on this book as an authority.

Now, let me ask you this: Is this book an authority?

The Witness: It is one of many.

The Court: Okay. And do you base your opinion upon this book, the opinions that you have experienced as to how anesthetics should be administered? The Witness: Well, honestly, I don't.

The Court: You don't? All right.

And then I guess that answers the question then, Counsel.

Here is the law in Michigan, very precisely and concisely:

"The only circumstances under which medical books can be read in evidence are where the witness has based his opinions upon them and has referred to them as authority."

And evidently, he said he doesn't base his opinions upon that book.

Q. (By Mr. Peisner, continuing): Let me get this straight, doctor:

You have recognized this book as an authority you say you rely on?

A. May I say something?

Mr. Gruber: Wait a minute.

Your Honor, how many times is he going to be allowed to ask the same things? Now, we have had a ruling on this three separate times.

The Court: Yes, I sustained his objection.

Mr. Peisner: I just want to see if the doctor wants to contradict himself in that matter.

Mr. Gruber: You are testifying. He hasn't contradicted himself at all. I move the jury be advised to disregard that remark.

The Court: The remark may be stricken. It is improper.

Mr. Peisner: All right.

Q. (By Mr. Peisner, continuing): I will ask you, on the book-on Mr. Monheim's book, which you said you did rely on

A. Mr. Gruber, it's

Mr. Gruber: How

A. When I say I rely upon it, do I also-I also rely upon the training I received for six months in anesthesia. Now, that's not in book form. I rely upon the training I learned from other people, that is also not in book form. I cannot dogmatically say that I do A, B and C according to Dr. Monheim's book, because there are variations which you are not even asking me about.

Q. We will get to them in a moment.

Mr. Gruber: Your Honor, again, and for the same reasons without having to go any further, I move that he not be allowed to proceed on the basis of these books. The doctor has answered. If we are going to get every possible book on anesthesia from some medical library, go through the same things, we are going to be here all day.

Mr. Peisner: Well, we have covered the book on Vandam. I want to cover the book on Monheim.

Mr. Gruber: He has already answered that.

Mr. Peisner: I didn't hear any answer other than yours, Mr. Gruber.

The Court: Well, he hasn't testified yet that he bases his opinions upon them and has referred to them as authorities. It's one or the other in some cases. Mr. Peisner: That's what I was about to ask him.

Mr. Gruber: Well, he just said he didn't.

Mr. Peisner: Well, we are discussing the Vandam book.

The Court: Good. Ask the question. I will permit him to ask the question. Q. (By Mr. Peisner, continuing): Do you base your opinion on the Monheim book?

A. Are you asking solely?

Q. Well, in the context of what you said. You said that you got your training from observation, from experience, from other instructors, and also on books to

ง

the extent that you use books. Do you base your opinion to that extent on the Monheim book?

A. I base my opinion primarily upon the clinical approach to, which is learned through our residency, because obviously, just because you can sit down and read the book, that doesn't mean you can go out and give an anesthetic. So you must base your opinions, by and large, on what is clinically done in the field, what is currently being used in offices, what is currently being talked about and discussed and being worked in the hospital. That, more than a book. This is the way the. people come in. This is where your patient comes in. You can't treat everything the way the book says, A, B and C, and just totally disregard the patient as though they don't exist, just because the book says it.

Q. But you are not answering my question, doctor, and I'll ask that the answer be stricken because it is not responsive.

Mr. Gruber: Wait a minute.

The Court: I think it was his response to the question. The answer may stand. Q. (By Mr. Peisner, continuing): Doctor, I will ask you once again: To the extent that you base your opinion on any book, do you base it on this Monheim book?

A. Not that book specifically. I'm sorry, I can't honestly say that.

Q. Do you base your opinion on any book?

A. You are asking me what percentage of my opinion is based on a book, and what percentage is clinical.

Mr. Gruber: Opinion as to what? I mean we are getting so far

The Court: As to his administration of anesthetics, obviously. That is what we are talking about.

Mr. Gruber: I'm not sure.

The Court: That is what we are talking about?

Mr. Peisner: That's what we are talking about.

The Court: I would assume that's what this case is about.

Q. (By Mr. Peisner, continuing): All right, can you answer that, doctor?

A. I can't say that I do, because in many books-Just for one isolated instance, many authorities will say a certain larygoscope is the best, and they are very dogmatic about that. Now, if you do not avail yourself—

Q. I'm not talking about equipment, I'm talking about basic—

A. Equipment is in the books.

Q. I'm talking about as to the extent that you base your opinion, and your authority on basic principles of the administration of anesthetics. I'm not talking about equipment, I'm not talking about specific drugs, not specific techniques; basic principles

A. I think it is the sum total of all these things.

Q. Well, to the extent that you base on any book—

A. I can't

Q. do you have any book that you base your opinion on?

A. I don't think you can specifically say one book; it is the sum total of your entire exposure.

The Court: I guess he has answered the question, counsel.

SPECIAL SUBCOMMITTEE ON REFORM

OF FEDERAL CRIMINAL LAWS,

April 5, 1973.

Prof. EDWARD W. CLEARY,

College of Law

Arizona State University

Tempe, Ariz.

DEAR PROFESSOR CLEARY: At yesterday's meeting the Subcommittee asked that I seek additional information from you with respect to the following Rules. in Article IV:

Rule 404(a) (2)

1. Exactly what is the current law?

2. Exactly what did the Advisory Committee have in mind in adding to the March 1971 draft the words "or evidence . . . aggressor"?

3. Should the limitation of applicability of the added language to "homicide" cases be extended to other crimes of violence-e.g., assaults, manslaughter, etc.?

Rule 404(b)

The Subcommittee considers the change in language between the March 1971 draft and the current draft as being one primarily of emphasis. However, there was some feeling that the earlier version was closer to being an expression of existing law. Any light you can shed on this would be appreciated.

Rule 405(a)

1. Why was the last sentence added to the text of the 1969 draft?

2. What was the reasoning behind recognizing opinion evidence as a means of proving character, thereby departing from the usual contemporary practice? Rule 405 (b)

1. Can you supply any further justification for support of the change being made in existing law by this subsection in allowing inquiries as to specific instances of conduct as part of a case in chief when character is in issue?

2. Can you supply the Subcommittee with comments received by the Advisory Committee on this Rule?

I understand you will be speaking to the Administrative Law Judges tomorrow. If I have a chance, I plan to drop in and say hello.

Sincerely,

HERBERT E. HOFFMAN, Counsel.

ARIZONA STATE UNIVERSITY,

HERBERT E. HOFFMAN, Esq.,

COLLEGE OF LAW, Tempe, Ariz., April 13, 1973.

Counsel, Special Subcommittee on Reform of Federal Criminal Laws, Committee on the Judiciary, Rayburn House Office Building, Washington, D.Ć.

DEAR MR. HOFFMAN: With regard to Article IV of the proposed Evidence Rules, I answer your inquiries of April 5, 1973, as follows:

Rule 404(a) (2)

(1) You ask what is the current law.

The weight of authority supports the first clause, i.e. the clause concerning a pertinent trait of character of the victim. Probably the only situations where the character of the victim used circumstantially is relevant are rape cases (on the issue of consent), homicides (on the issue who was the aggressor), and similar related offenses. See discussion and cases collected in 1 Wigmore, Evidence §§ 62, 63 (3rd ed. 1940).

As to the second clause, i.e. evidence of a character trait of peacefulness offered ' by the prosecution, both McCormick and Wigmore state that it is inadmissible as part of the prosecution's case in chief. Both authorities agree that there is disagreement in the cases as to when the prosecution may introduce the evidence in rebuttal, some allowing it only in rebuttal of evidence of violent character and others allowing it to rebut any evidence by the accused that deceased was the. first aggressor. See Wigmore § 63; McCormick, Evidence § 193 (2nd ed. 1972). Wigmore favored the latter position, which appears to be supported by a majority, of the more recent decisions and is that taken by the rule. Trying to distinguish, between what are and what are not attacks on character seems not to be helpful in reaching a result.

In the situations to which the exception applies, the likelihood of there being no impartial witness serves to emphasize the need for the character evidence. More or less as a footnote, it should be observed that evidence of the character or reputation of the victim in a homicide case is generally admitted as a circumstance bearing on the reasonableness of the conduct of the accused who claims. self-defense. This is a wholly different use of the evidence and the proposed rule does not purport to deal with it.

(2) You ask what the Advisory Committee had in mind in adding to the March 1971 draft the words "or evidence . . aggressor."

I believe that this inquiry is answered by my comments under (1).

(3) You ask whether the second clause of the exception should be extended to crimes of violence other than homicide.

Logic may well suggest this course, but the practical need for the evidence is much less. It therefore seems wiser not to expand the exception to the general prohibition against using character evidence circumstantially set forth at the beginning of the proposed rule.

A