THE CHEMIST AS AN EXPERT WITNESS WILLIAM M. DEHN,UNIVERSITYOP WASHINGTON, SEATTLE, WASHINGTON
Need for Information At times perhaps no other activity of the chemist is more important, requires more varied and thorough preparation, and yields more dramatic interest and lasting satisfaction than that of the successful expert witness. Too often, however, though on the equitable side of the case, though possessed of adequate skill and knowledge of his science, though satisfied with his preparation for the case, and though possessed of a balance of tactful and combative qualities so necessary for court success, his experience there may develop mortification and regrets that will endure for years. When the witness has been provoked, confounded, frustrated, detected in untruths or in half-truths, or otherwise outwitted, discredited, and routed, he may learn afterward that his partial or preponderating failures resulted from a variety of causes. Chief among these' are: his unfavorable personality, his faulty enunciation and diction, his timidity or irritable temper, his dogmatic or conceited attitude, his lack of knowledge of human nature and of legal evidence as applied to the expert witness,? his confusion, obscurity, and inaccuracy in answering categorical questions, the omissions and errors of his own lawyer, and, saddest of all, being caught in traps set by the opposing lawyer. "When proof is necessary under legal rules, and always against opposition, something more than technical knowledge is necessary." In the battle for the substantial equity or damaxes, in the battle for the life or liberty of the defendant, the academic attitude will not suffice. Per se, no array of university degrees, or of learned scientific publications, no national professional prestige, no lofty character or scholarship, no natural dignity, fairness, and seriousness will immunize or protect the expert from the bullying, the indignities, and the traps of cross-examination. The hattle is on and, though he has qualified as a specialist, he may not be an expert witness. Concerning the methods employed in cross-examination, "They were succinctly stated nineteen hundred years ago by the Dean of the Roman Law School, Professor M. Quintilian, as follows: 'If the witness is timid, he may be frightened; if, foolish, misled; if irascible, provoked; if vain, flattered; if prolix, drawn from the point; if, on the contrary, a witness is sensible and self-possessed he may be hastily dismissed as malicious 'See Osborn, "The Problem of Proof," Matthew Bender & Co., Ncw York City, 1922, in which certain chapters are devotcd to the expert witness. See also hooks on legal medicine, etc. %Seeespecially H. W. Rogers, "The Law of Expert Testimony," Central Law Journal Co., St. Louis, Mo., 1891. 556
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and obstinate or he may be put out of countenance by a jest; or, if anything can be said against his moral character, his conduct may be overthrown on infamous charge~."~ As was further pointed out by Clark, "For numerous thousands of years the lawyers have been practicing this art of cross-examination. They have written books upon books about it. . . . and you may search the libraries in vain for any book telling about the art of being cross-examined." Whereas the alienist has been the most frequent expert witness and "is always a welcome guest in the court room,"4 and whereas there is an extensive literature on medical jurispr~dence,~ we have no direct literature on chemical jurisprudence, or legal chemistry, or collected information that will specifically aid the chemist in preparing and functioning as an expert witness. The need for this information must have been felt by all chemists who have qualified as such, but their own experiences on the stand have not been handed on to others. Certainly no survey and discourse on what the chemist would like to know and ought to know in this important service is a t hand. Suggested Outline of Proposed Monograph The purpose of this article is to indicate the need of a monograph on the title of this paper and to point out the advantage of regulation of fees of the expert witness. The following paragraphs are intended to suggest subject matter for some chapters of such a monograph. The Experimental Preparation for the Case.-Whereas all cases differ, the experimental work should be complete on the basis of the present chemical knowledge of methods and tests. If possible, new tests and research should be developed to confound the opposing expert and lawyer and to strengthen your own testimony. Coaching Your Own Attorney.-Most attorneys have little or ,no knowledge of chemistry. To be most effective it will be necessary to prepare a brief that covers the experimental and literature aspects of the case and i t should be written largely in the layman's language. Whereas it is not permissible for the attorney to instruct the witness as to the facts of the evidence, it is permissible and necessary for the expert to instruct the attorney, provided that he does not in court "actively engage in assisting in the case like a lawyer." A series of questions and answers, prepared See Wigmore on "The Principles of Judicial Proof," Little, Brown & Co., Boston, 1913; Marcus Fabius Quintilianus, "De Institutiane Orataria;" also Clark "Answer Yes or No," N. Am. Rev., July, 1929, p. 85. "ugo Munsterberg, "On the Witness Stand," The McClure Ca., New York City, 1908. 5 For a bibliography of medical jurisprudence and expert testimony, see Wigmore, "OnEvidence," 1, 906, Little, Brown and Ca., Boston, 1928.
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by the expert, bearing on the case and covering all anticipated questions on the direct, the cross-examination, and the rebuttal, should be prepared and should be included in the brief. These should be studied by the attorney, and selection from them should be made on the basis of relevancy, permissibility, etc. They should be rearranged, revised, and amplified, until the sequence and scope have been determined. If practicable, when the case is on, a transcript of the court record should be studied by the expert for the following day's testimony. Also, during recesses, written questions and answers for rebuttal of the opposing testimony should be prepared for the attorney. expert is one who is skilled Qualifying as a n Expert Witness.-"An in any particular art, trade, or profession, being possessed of peculiar knowledge concerning the same."3 According to this legal definition any teacher of chemistry or graduate chemist, especially of the rank of Ph.D., being "skilled in acquiring accurate conceptions" of the science, is qualified to become an expert witness. However, no chemist is qualified on all subjects of chemistry; he must prepare specifically for each case. A chemist does not know all about chemistry; a lawyer does not know all about law. On taking the stand, "The experiential qualificationsof a witness are usually established by his own testimony reciting the facts of his career and special experience." Prepare for the case, establish your qualification, and keep the cross-examination within the limits of your qualification-such as a toxicological chemist, industrial chemist, etc. Be alert to prevent being drawn into collateral sciences or chemistryqfor which you had not especially prepared by saying, "I did not qualify as a physician, as a food specialist, etc." Demonstrations in Court.-In most courts the witness is permitted to illustrate his testimony on a chart and to make chemical demonstrations. Even simple chemical tests have won cases. The handbag and pockets should contain apparatus and materials for anticipated and impromptu demonstrations. Use your own st18 and be prepared to test the opponent's. Be thoroughly prepared on all systems of weights and measures and have present your own cylinder graduate, spoon, microscope, syringe, etc. Demonstrations alone are not sufficient; the accompanying discourse should be clear, concise, and convincing. Because after-thoughts usually suggest many things that might advantageously have been said and done, great ingenuity and preparation are necessary for complete success. Conflicts of Experimental Evidence.-It is well known to the chemist that most tests, under some conditions, may be interpreted erroneously. Indeed, it may be held that every test, under some unfavorable condition or through erroneous inference, can lead to fallacy. The expert chemist anticipates these errors and guards himself against such misinterpreta-
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tions. However, some tests, as reported by prior investigators, are iuherently fallacious but were not so recognized by the early investigator. The later investigator will either adopt those tests on faith or he will reinvestigate the tests and will detect the fallacy. For example, it was known for years (Otto's test of 1846) that strychnine can be detected by adding to it sulfuric acid and a crystal of potassium dichromate, when a "fading purple" will result. In a court case in Italy in 1880 it was claimed that ptomains obtained from the cadaver gave the same purple, and that strychnine was not present. The American, Lloyd, found that a mixture of morphine and hydrastine when treated with sulfuric acid gives a color resembling the strychnine purple. Codeine and formaldehyde (embalming fluid) will give a similar purple with sulfuric acid. In one case in the state of Washington, the chemist for the prosecution testified that he found strychnine and recited only Mayer's and Otto's tests. The defense showed that codeine and formaldehyde, which were admitted in the evidence of the prosecution, produced th> purple-and the defendant was acquitted. So mistakes have occurred in the work of expert chemists. If your side of the case is equitable, do not hesitate to supply your lawyer with technical information designed to confuse and rout the opposing expert and lawyer. Books of Authority.-The lay juror is impressed by the printed page. In cross-examination, books are used to controvert books, and to confuse and trap the witness. Subtle partial $~otations, obsolete terms, and literature, the printed conflict of opinion, mingling of theories and opinions with established facts and printed misstatements of fact are used to discredit the testimony of the expert. Search will uncover contradictory statements on most subjects. No one has read all pages of chemistry, or of law. There are no absolute authorities in chemistry, even in limited fields. Books are written by experts such as you. If necessary pass judgment on opinions but do not be inveigled into indorsing the entire book. Beware of the question, "Do you consider this author an authority on the subject?" Remember that in all books, "The opinion was not expressed under oath, and may have subsequently been modified. The writer is not present in court; no opportunity is given for his cross-examination and the jury cannot observe the witues~."~From authoritative books, passages like the following are introduced to discredit the experimental work of the expert, "Is it not true that (quoting from the book) 'no one except the analyst himself should be admitted to the room during the progress of the investigation and under no circumstances should any poison, other than the reagents used in the analysis, be permitted in the apartment?"'3 The absurdity of these precautions are understood by the chemist. Stoppered containers are more effective than doors in preventing cross-contamination. The poisons in the druggist's apartment do
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not contaminate the prescriptions that he compounds. Also note this absurd quotation, "All chemicals used in every operation should be known from actual tests by the chemist himself to be free from all impurity," and the question of cross-examination, "Did you purify each of your reagents?" No chemicals are free from all impurities, and no chemist can, or finds i t necessary to, remove all impurities from his reagents for particular tests. Answer Yes or No.-This type of question is used in cross-examination to confuse and trap the witness. "Is alcohol a poison? Answer yes or no." I t must be remembered that answers of "yes" or "no" to scientific questions are frequently inaccnrate or impossible. The answer may be "yes" or "no" or "neither" or "both" or "partly yes, partly no, and partly neither." Answer accordingly and quickly state, "I wish to qualify, or explain, my answer." Then discourse a t length and, if necessary because of interruption, etc., appeal to the judge for the opportunity to complete your answer. Remember for your own advantage, as was advised by Wellman for the advantage of the cross-examining lawyer, "If you allow the witness a chance to give his reasons or explanations, you may be sure they will be damaging to you, not to him." The Traps of Cross-Examination.-These lead to false inference, contradiction, misstatement and ridicule of the witness: Q. A. Q. A. Q. A. Q.
"What elements are present in cocaine?" "Carbon, hydrogen, oxygen, and nitrogen." *' "And you tested for and found only these elements present?" "Yes." "Are these same elements found regularly in human tissues?" "Yes." "That is all?'
Here the witness should have said, "Yes, and I wish to explain my answerw-then he should discourse on the subject and, by indirection, should point out the sophistry involved, for "every real opportunity to confound the examiner should be taken advantage of." Finally, it must be remembered that "on the cross-examination a witness may be asked any question tending (1) to test his accuracy, veracity, or credibility or (2) to shake his credit hy injuring his character, and he may he compelled to answer the same." Other Subjects.-Other subjects of interest t o the chemist about t o testify as an expert witness are: the hypothetical question, admissibility of opinions of the expert, impeachments of expert testimony, patent law, bias, and pecuniary subserviency, etc. From the viewpoint of the court, "Much has been declaimed about the partisanship and consequent untrustworthiness of the usual professional
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man as an expert witness." From the viewpoint of the expert witness, "Professional men of honorable instincts and high scientific standards look upon the witness box as a Golgotha and disclaim all respect for the law's method of investigation." In view of the fact that these opposing attitudes of mind exist, whereas it is generally recognized that "the present method has for years exhibited shortcomings which are lamentable" and whereas it is desirable to improve upon the present method, yet little has been attempted for such improvements, and nothing has been done by the chemist for his own betterment as an expert witness. Fees.-One matter that can be improved or partly regulated is the compensation paid the chemist for service in connection with expert testimony. I t is customary and permissible in most courts to ask t h i expert, "What fees are you being paid for this testimony?" This question is proposed to disclose prejudice and to discredit the witness. That the fees should be predetermined and should be frankly stated is self-evident. "Special services other than attendance to give testimony on a trial are not within the duty of any witness, hence a professional man is entitled to demand special compensation." Just what fees should be charged for the experimental work, for the search of the literature, for writing the brief, and for conferences with the attorney are not subject to rigid or final rules. One should not necessarily "charge all that the traffic will stand," nor should one charge less than the customary fees of the competent chemist, certainly he should not charge less than &hat paid for comparable work of other professional witnesses, such as physicians, alienists, handwriting experts, etc. The separate per diem fee for services on the stand, for the state, is usually regulated by statute. For the defense in criminal cases, and for either side in civil cases, the fee is a matter of contract. Some years ago, concerning the question of compensation to physicians testifying as expert witnesses, BeckEobserved, "It is quite time that the medical profession in this country should rouse itself to a demand of its just rights." Today the minimum @er diem fee for medical expert testimony is usually $100. Often the chemists in educational institutions, serving as expert witnesses, through modesty or otherwise, have cheapened their profession by undercharging. If a special committee of the American Chemical Society could collect the court experiences of chemists, together with suggestions on how to meet unique subtleties of cross-examination, a monograph could be compiled and it would do much to'establish the credibility and prestige of the chemist and to promote public justice. "'Medical Jurisprudence," J. B. Lippincott and Co., Philadelphia.
