The method for overcoming this difficulty that has received most
sanction from students is that experts shall be chosen by the state and
appear for neither side. This, like most other things, has advantages
and disadvantages. State officials, or those chosen by the state,
usually come to regard themselves as a part of the machinery of justice
and to stand with the prosecuting attorney for conviction. It will most
likely be the same with state defenders. No one who really would defend
could be elected or could be appointed, and it would work out in really
having two prosecutors, one nominally representing the defense. A
defendant should be left to get any lawyer or any expert he wishes. No
one can be sure that the state expert will be better than the others.
All one can say is that state experts may not be partisans, but, in
effect, this would mean that they would not be partisans for the
defendant. The constant association with the prosecutor, the officers of
the jail, the public officials, and those charged with enforcing the
law, would almost surely place them on the side of the state. Such men
must be elected or appointed by some tribunal. This brings them to the
attention of the public and makes them dependent on the public. The
expert's interest will then be the same as the interest of the
prosecutor and the judge.
The prosecuting attorney is not a partisan. His office is judicial. He
is not interested in convicting or paid for convicting, and yet, no sane
person familiar with courts would think that the defendant could be
safely left in his hands. Assuming he is honest, it makes little
difference. Almost no prosecutor dares do anything the public does not
demand. Neither, as a rule, has he training nor interest to study any
subject but the law. The profounder and more important matters affecting
life and conduct are a sealed book which he could not open if he would.
Very soon under our political system the expert business would gravitate
into the hands of politicians, the last group that should handle any
scientific problem. I am free to confess the difficulties of the present
system, but some other way may be even worse. It must always be
remembered that this country is governed by public opinion, that public
opinion is always crude, uninformed and heartless. In criminal cases
there is no time to set it right. The position of the accused is hard
enough at best. He is really presumed guilty before he starts. Every
lawyer employed to any extent in criminal practice knows that in an
important case his greatest danger is public opinion. He would not take
the officers and attachés of the court as jurors, although they might
be good men, for their interest and psychology would be always for
conviction.
Public-domain text, read in full here on John Shaqi.
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