Medical Jurisprudence, Forensic medicine and Toxicology. Vol. 1Witthaus, R. A. (Rudolph August)
Science
Medical Jurisprudence, Forensic medicine and Toxicology. Vol. 1
Witthaus, R. A. (Rudolph August)
Medical jurisprudence; Poisons; Toxicology
_Persons Not Duly Licensed Sometimes Held Not Competent._—It has
also been a mooted question in those States where it is necessary, in
order to enable a person to practise physic or surgery, that he should
be licensed, whether a person practising without a license, however
extensive his reading and practice, would be considered qualified as
an expert witness in a court of justice. This point, so far as diligent
examination discloses, has not been determined in any reported case,
although it has been suggested at _nisi prius_ and has been, in one
instance within the knowledge of the writer, decided that he is not
to be considered an expert in matters involving medical knowledge and
skill. The reasoning of the court was that the policy of the State
is to prohibit persons not possessing the qualifications required
to obtain a license, from acting in any capacity as professors and
practitioners of medicine or surgery. If the witness is a member of
the profession, legally qualified as such, it has been held that he is
sufficiently qualified as an expert if he shows that he possesses the
average ability of members of his profession. Hall _v._ Costello, 48
N. H., 176; Tellis _v._ Kidd, 12 Ala., 648; Wharton on Evidence, Sec.
446; Rogers on Expert Testimony, Secs. 17 and 18; Slocovich _v._ Orient
Mutual Ins. Co., 108 N. Y., 56.
As to the question whether it is necessary that the witness should
actually have practised his profession, see the last-cited text-writer,
Secs. 43 and 44, who seems to have entertained views opposite to those
stated by Professor Greenleaf.
Wharton on Evidence, Sec. 439, states the rule as follows: “He must
have special, practical acquaintance with the immediate line of inquiry
more than a mere vague, superficial knowledge. But he need not be
acquainted with the _differentia_ of the specific specialty under
consideration.... A general knowledge of the department to which the
specialty belongs would seem to be sufficient.”
_Interested Persons may still Testify as Experts._—Since the law
forbidding interested persons from being witnesses has been changed,
it has been suggested that an interested person although otherwise
qualified might not be a competent witness to give an opinion as an
expert. But the established doctrine is that he may give such an
opinion; the weight of it, however, would be for the jury to determine.
Greenleaf on Evidence, Redfield’s edition, Sec. 440, citing Lockwood
_v._ Lockwood, 2 Curtis, 309; Dillon _v._ Dillon, 3 Curtis, 96, 102.
See also Dickinson _v._ Fitchburg, 13 Gray, 546.
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