In this case the defendant was on trial for the murder of his wife; the only question at issue was the sanity of the defendant. The district attorney went to New York City and presented the case to a well-known physician and specialist in mental diseases, and asked him for his opinion as to the defendant's sanity. The physician informed the district attorney that he could not give a satisfactory opinion without seeing and examining the defendant, and, after a request for terms, said that he would go to the place of trial, examine the defendant and attend the trial as witness for five hundred dollars. In passing upon the propriety of such an arrangement the Court expressed itself as follows:—
"The district attorney, it is true, might have required the attendance of Dr. H. on subpoena, but that would not have sufficed to qualify him to testify as an expert, with clearness and certainty, upon the question involved. He would have met the requirements of a subpoena if he had appeared in Court, when he was required to testify, and given proper impromptu answers to such questions as might then have been put to him in behalf of the people. He could not have been required, under process of subpoena, to examine the case and to have used his skill and knowledge to enable him to give an opinion upon any points of the case, nor to have attended during the whole trial and attentively considered and carefully heard all the testimony given on both sides, in order to qualify him to give a deliberate opinion upon such testimony as an expert in respect to the question of the sanity of the prisoner. Professional witnesses, I suppose, are more or less paid for their time and services and expenses, when called as experts in important cases, in all parts of the country. The question, what amount is paid or agreed to be paid in such cases cannot affect the regularity of a trial. It may, perhaps, properly affect the question of their credit with the jury."
If, in a criminal trial, where every reasonable safeguard and protection is thrown about the accused, an arrangement of this character will not be considered an irregularity, much less will such an arrangement be subject to like criticism in a civil suit.
An arrangement with counsel for such special services must be free from champerty, or it will be void and unenforceable. Accordingly, a contract which provides that the compensation of the witness shall be commensurate with or dependent upon the success of the party in whose behalf he testifies, is objectionable and cannot be enforced.[1]
- ↑ For further illustration of this rule and treatment of the subject generally see Law in its Relations to Physicians, Ed. 1904, p. 175.
