Evidence which is part of what lawyers call the res gestae is admissible; that is, statements made by a witness during the progress of an event which are a part of the picture coloring the event itself, so to say, are admissible; but if the statements are made in describing it to a witness five minutes after the event, that witness may not testify to them to establish the facts. Thus, what a motorman exclaimed while his car was running over a child may be proved in a suit for damages against his employer, but what he said to a policeman five minutes later in describing the accident is not admissible, because it is hearsay, although it could be proved against the motorman himself in a prosecution for manslaughter. Everybody knows that a statement made spontaneously before an event has faded in the memory, and before counsel in preparing a case and "horseshedding" a witness has aroused in him a spirit of interest or partisanship, has great value.

Other instances might be cited where hearsay testimony would have value in ascertaining truth. And it is worthy of reflection that it is upon that kind of evidence that the greatest scientists make deductions of value to humanity and that great business enterprises are undertaken; and religious belief is, of course frequently based upon evidence which would be excluded in a court of law. Under the continental system of procedure hearsay evidence is accepted in many cases. To open wide the door here might be dangerous, but the experience in the constantly increasing settlements of controversies by arbitration shows that the danger is not great. In any event it seems clear that a wider discretion to admit such tetimony should be vested in a trial judge.

The rule relating to expert evidence, particularly in

condemnation suits and will contests, leads to great abuse. Sometimes an entire hour is occupied in reading a single hypothetical question, in which is embodied a mass of complicated facts, which the medical expert may answer in almost a monosyllable; and if there is no cross examination that is the end of the process. But the courts and juries generally base their conclusions not so much on the refinements of the medical science or on the eminence of experts, as upon the proof of objective circumstances. They generally ignore the artificial hypothetical question, and its reading excites little more than amusement. Arguments of counsel and the charge of the court are generally directed not to the evidence of the experts, but to the proof of other facts. In recent decisions of our appellate courts it has been held that a case should not be sent to a jury solely on the testimony of expert medical witnesses.

Surrogate Rollins many years ago, speaking of the practice of employing experts, said that they were called because their pre-ascertained views met the necessities of one of the litigants, that the gist of the question propounded to them to establish insanity was, "If the person whose mental condition is the subject of inquiry is of unsound mind, is he sane or is he insane?" and that, cross examined, the interrogatory became substantially: "But if, on the contrary, this person of whom you are testifying is of sound mind, is he insane or is he sane?" The trouble is that the process of the courts in determining whether a man is competent to make a will is different from the theoretical process of the medical expert witness himself. For that witness in testifying is not able to adopt the process he deems necessary in examining a living patient, since in his ordinary practice what

he seeks is concrete and objective symptoms ascertained by conventional tests which are the result of experience. Whether or not the judicial process of investigation is more valuable than that of the medical expert, in any case the latter is not of such value that it is clear that the judicial method should be abandoned. But the whole subject should be re-examined and a conclusion reached as to whether some method cannot be devised by which the court itself may obtain the advice of entirely disinterested experts by which it can be aided in performing its judicial function.

Many years ago a person who had any interest in a case was disabled from becoming a witness. Gradually the interest of a witness ceased to be a disqualification. The ancient rule has yielded to the idea that the courts and juries can make allowance for exaggeration or misrepresentation produced by the bias of a witness. The probabilities of the case, the searching of the conscience by cross examination, the appearance of the witness and other circumstances are now generally regarded as being sufficient to offset the disadvantage of permitting prejudiced or even perjured statements to be made by a witness having an interest.

But these considerations have not resulted in the elimination of some rules which are still embodied in our written law. Thus, communications made by a decedent to a person having a claim against an estate cannot be testified to by the latter. This restriction works great hardship in preventing the establishment of meritorious claims in far more cases than those in which the excluded statements would establish fraudulent claims. The rule is retained largely through inertia

and because we do not have confidence in our own processes for ascertaining truth.

Another rule forbids a doctor from disclosing information obtained in a professional capacity because it is supposed to be confidential, even although the testimony is offered for the purpose of showing the patient to be competent, in which case it ought to be assumed that he would wish his physician to be free to prove the fact. The rule, however, is qualified by the absurd exception that it may be waived by the executors "or the surviving husband, widow or any heir at law or next of kin or any other party in interest." Under this exception a person seeking to set aside a will can waive the rule for the express purpose of defeating the wishes of the dead patient.

Another rule prohibits a lawyer from disclosing a communication made to him by a client. In a will contest the lawyer is thus precluded from testifying to the instructions, oral or written, which he received from his client, upon the theory that the client, if alive, would not agree to remove the ban of secrecy even for the purpose of establishing the will which he employed the lawyer to draw.

Many more instances could be cited of rules of evidence which are out of joint with modern conditions. The whole subject should receive careful and scientific re-examination to the end that procedure in our courts may conform more nearly to the prevailing methods by which we conduct our social and business affairs.

IV

UNIFORMITY OF PROCEDURE IN THE

FEDERAL COURTS*

Mr. President and Members of the Delaware State Bar Association:

The confidence of the public in the administration of justice in this country is being impaired by the expense and delay caused by the anachronisms, the complications and the subtleties of court procedure. Dean Pound, the most erudite of our legal historians, asserts that we are practicing law in this country according to the archaic methods prevailing in England before the great reforms of the Nineteenth Century were accomplished. In a statement submitted recently by the American Bar Association to the Judiciary Committee of the Senate, it was estimated that in three months in 1910, 51 2/10% of the decisions throughout the country related to points of practice; and Justice Sutherland stated to the same Committee that about one-third of the time of the appellate federal courts was taken up with procedural questions. In England, on the other hand, in the first fifteen years after the rules went into effect, pursuant to the Judicature Acts of 1873 and 1875, there were 4,000 decisions upon questions of procedure in proceedings which averaged 80,000 annually,

Address delivered before the Delaware State Bar Association November 6, 1925. Reprinted from American Bar Association Journal for January 1926.