ceases, for example, when the witness is already in court for another purpose. Moreover, a voluntary attendance without a demand of expenses at the time of service is a final waiver of the requirement, and the witness cannot insist upon it at the moment of being called to the stand.9 The truth is that the whole doctrine of requiring a tender in advance is a questionable one. Its defect is, in the first place, that it tends to create the false impression (ante, § 2192) that the witness' duty runs to the parties and not to the community, and that he is rendering his services for money to the party that desires them. It tends to intensify the unwholesome partisan spirit of witnesses and to put them in the position of paid retainers. It lowers the moral level of litigation. Its fault is, furthermore, that it places an unequal burden upon litigants, according as they are more or less able in advance to furnish the money for witness fees. If a poor man in a criminal cause is entitled, without advances, to the testimony of those who can vindicate him, he is equally entitled to it in a civil cause to defend him from injustice or to aid the enforcement of his right; any distinction in this respect between civil and criminal causes is a false one. Moreover, the question is not whether the parties in civil causes should ultimately bear the expenses of their litigation, and whether litigation should be absolutely free; that is a different problem; here we ask only whether payment in advance is necessary; there are other ways of securing the parties' liability for costs. Nor is it the question whether parties shall be licensed to cause inconvenience to their neighbors by summoning promiscuously a horde of unnecessary witnesses, without risk or hindrance; that abuse can be guarded against by penalties for parties who are found by the Court to have summoned witnesses with wanton superfluity; and in many jurisdictions such measures are provided. Nor is it a question whether the burden of advancing the expenses shall be thrown by the party upon the witness himself; that burden is not considered by the law as a hardship in criminal causes; nor would it extend to more than the expense of travelling to the place of trial, and even this amount could then be reimbursed on arrival; moreover, the witness' actual inability to advance his own expenses is a sufficient excuse, in contempt proceedings, for his non-attendance.10 The real question is simply whether parties who can ill afford the expense shall be put at a relative disadvantage to their opponents who by the mere possession of money are enabled to prepare more freely and effectually for the proof of their cause; and in this aspect the requirement of tender is a plain injustice. For these 8 1828, Blackburn v. Hargreaves, 2 Lew. Cr. C. 259 (witness also summoned for the opponent). 91894, Rozek v. Redzinski, 87 Wis. 525, 529, 58 N. W. 262 (the attendance is a waiver of payment in advance). Contra: 1684, Braddon's Trial, 9 How. St. Tr. 1127, 1167 (cited post, $2201); 1768, Blackstone, Commentaries, III, 369 ("no witness, unless his reasonable expenses be tendered to him, is bound to appear at all; nor, if he appears, is he bound to give evidence VOL. IV. till such charges are actually paid him," except 2983 two chief reasons it should be abolished, as an anomaly in the law and a detriment to justice, surviving by mere force of tradition.11 § 2202. Same: (b) Amount of Tender. The amount of the expenses required by the statute of Elizabeth to be tendered was to be merely “reasonable"; and the judges of England set their faces, from the beginning, against any attempt to deduce fixed rules, by nice calculations, for applying this principle: 1684, Braddon's Trial, 9 How. St. 1127, 1167; Witness for defendant: "My lord, I shall not give any evidence till I have my charges"; L. C. J. Jefferies: "Braddon, if you will have your witnesses swear, you must pay them their charges"; Defendant: "My lord, I am ready to pay it, I never refused; but what shall I give him?”’· L. C. J.: "Nay, I am not to make bargains between you; agree as you can.” 2 It was plain, however, that the charge should include three general items, namely, the cost of coming to court, the cost of returning home, and the cost of sojourning at the place of trial during the time required for attendance. Within these items, no further detailed rates or rules were promulgated; except that, under the statute, the reckoning of all three would vary according to the witness' "countenance or calling," a distinction proper enough where the separation of ranks of life was so clear and fixed.3 But in the United States this policy has been abandoned, - partly because the theory of social democracy could hardly abide a legal discrimination based on social distinctions, but partly also, it may be presumed, because a lack of fixity in charges tends not only to create uncertainty and dispute as to the witness' obligation, but also to induce undue exactions by witnesses and undue pecuniary payments by parties under cover of the required expenses. By statute, therefore, the rates to be paid for attendance and for travel are now generally prescribed. What has thus been lost in depriving witnesses occasionally of adequate compensation for expenses of maintenance has probably been more than made up by the removal of the greater disadvantages above mentioned. The three general items, however, of travel to and fro 11 It may be added that the constitutional guaranty that property and (in a few constitutions) services shall not be taken by the State without due compensation does not create any exceptions to the recognized duty of a citizen to furnish, without tender of expenses, such testimony as he is capable of furnishing: 1853, West v. State, 1 Wis. 209, 233; 1856, Israel v. State, 8 Ind. 467; 1877, Buchman v. State, 59 id. 1, 14 (but distinguishing the case of an expert, post, § 2203). 3 1736, Wakefield's Case, Lee cas. t. Hardwicke 313 ("You must not only have an affidavit of tendering the shilling, but likewise of a tender of reasonable charges"); 1741, Ryder v. Fletcher, 13 East 16, note (measure of reasonable travelling expenses, discussed); 1768, Blackstone, Commentaries, III, 369 (quoted ante, § 2201, note 9; the "bills of mortality" denoted certain boundaries in the city of London, and apparently within these limits a shilling, or nominal sum, for travel was all that was required); 1788, Fuller v. Prentice, 1 H. Bl. 49 ("the whole of which necessary expenses, as well of their going to the place of trial, as of their return from it, and also during their necessary stay there, ought to be tendered to them at the time of serving the subpoena "); 1815, Horne v. Smith, 6 Taunt. 9 (the tender must cover "sufficient for his subsistence during his probable stay there "); 1840, Newton v. Harland, 9 Dowl. Pr. 16 (expenses of return are to be included). and maintenance at the place of trial are almost universally preserved in these statutes.* § 2203. Same: Expert's Fees. May an additional, but reasonable, charge, proportionate to the value of time spent and skill exercised, be demanded, as a condition precedent to attendance, by an expert witness, that is (ante, §§ 560, 1923), by one who is called to testify, not merely to the facts of his simple observation by eye and ear, but to an opinion drawing from the facts such inferences as are receivable only from persons specially qualified by experience or study? This question, it is to be noted, is not whether such witnesses should ultimately be paid larger compensation for their attendance; but whether, as a matter of right and privilege, they are not liable to compulsory process unless such compensation is tendered beforehand. The regulation of the amount of charges is a large question, involving various considerations, not here to be examined; but the specific question whether the expert witness has any greater privilege than the ordinary witness may be determined independently of the policy of the other measure. At first sight, it might be supposed that the exaction of the valuable special services of an expert, without other than the ordinary witness' pittance, was a hardship which ought not to be imposed: 1843, Maule, J., in Webb v. Page, 1 C. & K. 23: "There is a distinction between the case of a man who sees a fact and is called to prove it in a court of justice, and that of a man who is selected by a party to give his opinion on a matter with which he is peculiarly conversant from the nature of his employment in life. The former is bound as a matter of public duty to speak to a fact which happens to have fallen within his knowledge; without such testimony the course of justice must be stopped. The latter is under no such obligation." 1877, Worden, J., in Buchman v. State, 59 Ind. 1, 13: "The position of a medical witness testifying as an expert is much more like that of a lawyer than that of an ordinary witness testifying to facts. The purpose of his service is not to prove facts in the cause, but to aid the Court or jury in arriving at a proper conclusion from acts otherwise proved. If physicians and surgeons can be compelled to render professional services by giving their opinions on the trial of criminal causes without compensation, then an eminent physician or surgeon may be compelled to go to any part of the State at any and all times to render such service, without other compensation than such as he may recover as ordinary witness-fees.” But this argument is specious only. The grounds upon which it may be concluded that no different privilege should be established for expert witnesses than for others, may be summarized as follows: (1) The expert is not asked to render professional services as a physician or chemist or engineer; he is asked merely, as other witnesses are, to testify what he knows or believes. (2) The hardship upon the professional man who loses his day's fees of fifty or one hundred or more dollars is no greater, relatively, than upon the storekeeper or the mechanic who loses his day's earnings of two dollars or ten The statutes cited ante, § 2201, and others associated with them in the statute-books, show these details. For the witness' action against the party to recover his expenses, see the following cases: 1850, Pell v. Daubeny, 5 Exch. 955; 1860, Bliss v. Brainard, 42 N. H. 255. dollars; each loses his all for the day; moreover, though the recoupment of the witness-fee of one or two dollars is relatively greater for the mechanic, yet his risk of losing continued employment by enforced absence is greater than for the professional man, and more than equalizes the hardship to him. (3) It is only by accident, and not by premeditation or deliberate resolve with reference to the litigation, that either has become desirable as a source of evidence; neither the expert in blood-stains nor the bystander at a murder has expressly put himself in the way of qualifying as a witness, so that no claim based on a special dedication of services for the case can be predicated of one rather than of the other. (4) The practical difficulty of discriminating between various kinds of experts and their earnings, and between that testimony which they give as such and that which they give as ordinary observers, would be serious, and would introduce confusion and quibbling into the law. (5) Finally, so far as concerns the policy of doing whatever should attract and not deter desirable witnesses, it would seem that no special favor need be shown to expert witnesses. No one will ever refrain from entering a professional calling because of the fear of having to spend his time gratuitously at trials; and yet an ordinary person is often deterred from observing (or disclosing his observation) of a street accident or the like, because of the apprehension of being summoned as a witness; so that the latter sort, if either, should be the one to be encouraged by special compensation. These reasons, in one or another form, have been expounded in the following judicial utterances: 1831, Tindal, C. J., in Lonergan v. Assurance Co., 1 Bing. 729, 731: "There is no reason for assuming that the time of medical men and attorneys is more valuable than that of others whose livelihood depends on their own exertions"; Park, J.: "Time to a poor man is of as much importance as to an attorney." 1875, Manning, J., in Ex parte Dement, 53 Ala. 389, 393: "It is not intimated by any of them [the precedents] that a physician, when testifying, is to be considered as exercising his skill and learning in the healing art, which is his high vocation; or that a counsellor-at-law, in the same situation, is exerting his talents and acquirements in professionally investigating and upholding the rights of a client. If this were so, each one should be paid for his testimony as a witness, as he is paid by clients or patients, according to the importance of the case and his own established reputation for ability and skill. But in truth he is not really employed or retained by any person; and the evidence he is required to give should not be given with the intent to take the part of either contestant in the suit, but with a strict regard to the truth, in order to aid the Court to pronounce a correct judgment. Perhaps the attitude of one testifying as an expert, of a matter in respect to which he is made conversant or skilled by his ordinary employment, is not so different as is supposed from that of another who testifies to acts or things done by or between the parties to a cause. It generally happens that, after all the direct facts of a transaction are brought before a Court, a knowledge of other facts, not part of the dealing or affair between the litigants, is necessary to a proper understanding and decision thereupon. For instance, [in proving the value of a commodity sold or the foreign law applicable or the usage of trade in interpretation,] . . . in all these instances, persons who may be wholly unacquainted with the parties to a cause, and know nothing of the transactions between them, may be required to come from their offices and the care of their own important affairs into court to testify for the benefit of strangers, in regard to matters in which they have themselves become conversant only by attending to their own business. And why are they required to do so? Because they know things important to the right determination of a controversy pending. . . . For in fact they are all witnesses at last. And the same principle which justifies the bringing of the mechanic from his workshop, the merchant from his storehouses, the broker from 'change, or the lawyer from his engagements, to testify in regard to some matter which he has learned in the exercise of his art or profession, authorizes the summoning of a physician, or surgeon, or skilled apothecary, to testify of a like matter, when relevant to a cause pending for determination in a judicial tribunal. ・ ・ [He] would be deposing only to things which he had learned in the course of his occupation or profession, or of the preparation for it, and the disclosure of which to the Court would conduce to a correct understanding of a cause before it. His testimony would concern the administration of justice; and of him, as of other witnesses, it could be justly claimed by the public as a tax paid by him to that system of laws which protect his rights as well as others'.'. . . It is therefore of vital public interest that the tribunals which pronounce these judgments shall have power to coerce the production of any relevant evidence, existing within the sphere of their jurisdiction, requisite to prevent them from falling into error." · 1893, Bissell, J., in Board v. Lee, 3 Colo. App. 177, 180, 32 Pac. 841: "It is apparently nothing but a question of relative value; and it frequently happens that the loss of time is a less serious one to the professional witness than to the person engaged in the more active business walks of life." ... 1897, Magruder, J., in Dixon v. People, 168 Ill. 179, 48 N. E. 108: "The grounds upon which the right to such extra compensation on the part of expert witnesses has been sustained have generally been three in number: [1] The first ground is that the time of the expert witness is more valuable than the time of ordinary men, and that, by attendance at court to give his testimony, such a witness meets with a loss of time. Loss of time, as a ground for claiming extra compensation for services as a witness, applies as well to all ordinary witnesses as to expert witnesses. It is conceded that when any witness, whether he is an expert witness or not, is acquainted with any facts which bear upon the matter in controversy in a litigation, he is obliged to testify; and a distinction is drawn between the testimony of an expert witness who is acquainted with the facts about which he testifies, and an expert witness who is called upon to give his opinion, in reply to a hypothetical question, without any knowledge of facts. Manifestly, the witness who goes to court and testifies as to the facts of which he knows is subjected to a loss of his time as much as a witness who goes there to testify as an expert upon a mere matter of opinion. [2] The second ground upon which the claim for such extra compensation is based is that the skill and accumulated knowledge of the expert are his property, and that a man's property should not be taken without just compensation. . . . There is no infringement here of a property right. It may be conceded that in a certain sense the knowledge of the physician, acquired by special study, is property; but the question here is, not so much whether certain knowledge is property, as whether the requirement that he shall answer a hypothetical question is a taking of his property. Where he is required to make an application of his knowledge to a particular case, so as to secure a particular result, — such as, for instance, the curing of a disease or the healing of a wound, then he would undoubtedly be entitled to compensation. A physician or surgeon cannot be punished for a contempt for refusing to make a post mortem examination unless paid therefor; nor can he be required to prepare himself in advance for testifying in court, by making an examination, or performing an operation, or resorting to a certain amount of study, without being paid therefor. But when he is required to answer a hypothetical question, which involves a special knowledge peculiar to his calling, he is merely required to do what every good citizen is required to do in behalf of public peace and public order. . . . [3] If the precedent is once established that expert witnesses must be paid a reasonable compensation for their testimony, then it will not be long before such testimony will be offered to the highest bidder. The ... |