"It is notorious that "expert testimony" is too often confused and confusing testimony which jurors and judges feel themselves bound to disregard in favor of mere horse sense. The stated experts are matched or overmatched by the experts for the defense, and the conflict of "scientific" testimony a.s.sumes in many cases the proportions of a public scandal.
"Hence the "Wisconsin idea" as applied by Judge Backus of Milwaukee, who is presiding over the trial of John Schrank, is an admirable one. Under a statute of Wisconsin a judge may summon a certain number of experts and make them officers of the court. They testify as such officers, and presumably the state pays them reasonable fees. Under such a plan as this there is no temptation to strain science in the interest of a long purse, and impartial opinions is likely to be the rule.
"Statutes similar to that of Wisconsin are needed in all other states. "Expert testimony" has long been a byword and reproach. Of course, under Anglo-Saxon jurisprudence no defendant can be deprived of the right to call witnesses of his own choosing, and after all a medical expert is only a witness who gives opinions instead of facts. Still, a law which authorizes the court to call truly impartial experts would not seem to be "unconst.i.tutional." It is certainly not unfair or unreasonable from the lay point of view."
The Sat.u.r.day Night of Toronto, Ont., said:
"In the stress attending on matters of greater moment which have been occupying the attention of the daily press of late, the judicial wisdom of Mr. A. C. Backus, munic.i.p.al judge of the city of Milwaukee, charged with the task of trying John Schrank, the man who attempted to slay Col. Roosevelt, has been overlooked.
"Nevertheless, he established a precedent with regard to the trial of prisoners where insanity is the only defense, that should be copied not only by every state of the American Union, but by every province of Canada.
"It was not generally known that the laws of the state of Wisconsin gave a presiding justice the plenary powers he has exercised, but every good judge who has presided over cases where alienists have been employed to furnish testimony must have yearned for similar authority.
"In the Schrank case Judge Backus decided to eliminate all direct testimony by alienists, and to const.i.tute such experts into an auxiliary court who should co-operate with him in the final judgment of the case.
"His auxiliary, consisting of five physicians, was directed to elect a moderator who would preside over their deliberations and decide the issues of sanity or insanity in case of a deadlock.
"It would be difficult to say what objection could be taken to this system in any case where alienists are subpoenaed. It is even possible that by carefully protecting the rights of the prisoner the same system could be worked out in any case where medical testimony beyond the mere proving of the crime is required. In many murder cases physicians have been heard swearing to contrary positions until the jurors, disgusted with the confusion of the testimony, have simply thrown up their hands, neglected their duty to consider the reasonable facts of the case, and allowed murderers to go free.
"Judge Backus has taken a forward step in the administration of justice on this continent, and it is to be trusted that the effects of it will be far-reaching."