A-32314, SEPTEMBER 8, 1930, 10 COMP. GEN. 111

A-32314: Sep 8, 1930

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WITNESSES - EXPERTS - ARMY COURTS-MARTIAL AN ARMY COURT-MARTIAL IS WITHOUT POWER TO COMPEL. THE MATTER OF THE LATTER'S COMPENSATION AND EXPENSES IS ONE SOLELY BETWEEN THE ACCUSED AND HIS WITNESS. CONCERNING WHICH THERE IS NO OBLIGATION ON THE UNITED STATES TO SATISFY. THIS BEING TRUE ALTHOUGH THE CROSS-EXAMINATION BY THE PROSECUTION OF THE WITNESS IN QUESTION REQUIRES HIS ATTENDANCE BEYOND THE DAY ON WHICH HIS DIRECT EXAMINATION WAS COMPLETED. IRRESPECTIVE OF WHETHER HIS TESTIMONY IS FAVORABLE OR UNFAVORABLE TO THE ACCUSED. THE PAYMENT IS DESIGNATED AS HAVING BEEN MADE. WAS AWAY FROM MY PLACE OF DOMICILE IN ATTENDANCE BEFORE THE COURT UNTIL 9 A.M. TEXAS. * * * I WAS EXCUSED AS A WITNESS FROM ATTENDANCE UPON SAID COURT ON THE AFTERNOON OF MONDAY.

A-32314, SEPTEMBER 8, 1930, 10 COMP. GEN. 111

WITNESSES - EXPERTS - ARMY COURTS-MARTIAL AN ARMY COURT-MARTIAL IS WITHOUT POWER TO COMPEL, BY ANY FORM OF COMPULSORY PROCESS, THE ATTENDANCE OF A CIVILIAN BEFORE IT AS A WITNESS FOR THE ACCUSED TO GIVE TESTIMONY AS AN EXPERT ON HANDWRITING, AND WHERE THE ACCUSED HAS RECEIVED AUTHORITY FROM A COMPETENT SOURCE TO INTRODUCE THE TESTIMONY OF SUCH EXPERT WITNESS, THE MATTER OF THE LATTER'S COMPENSATION AND EXPENSES IS ONE SOLELY BETWEEN THE ACCUSED AND HIS WITNESS, CONCERNING WHICH THERE IS NO OBLIGATION ON THE UNITED STATES TO SATISFY, THIS BEING TRUE ALTHOUGH THE CROSS-EXAMINATION BY THE PROSECUTION OF THE WITNESS IN QUESTION REQUIRES HIS ATTENDANCE BEYOND THE DAY ON WHICH HIS DIRECT EXAMINATION WAS COMPLETED, AND IRRESPECTIVE OF WHETHER HIS TESTIMONY IS FAVORABLE OR UNFAVORABLE TO THE ACCUSED.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 8, 1930:

MAJOR C. NEWTON, JR., FINANCE DEPARTMENT, UNITED STATES ARMY, FORT SAM HOUSTON, TEX., IN HIS ACCOUNT RENDERED FOR THE MONTH OF JANUARY, 1930, HAS CLAIMED CREDIT FOR A PAYMENT OF $100 (AT $25 PER DAY) MADE FROM PUBLIC FUNDS IN HIS CUSTODY, BY HIS OFFICIAL CHECK NO. 117080 DATED JANUARY 22, 1930, TO WILLIAM A. WEAVER, 708 BURT BUILDING, DALLAS TEX., FOR FOUR DAYS "TRAVEL AND ATTENDANCE" AS AN EXPERT WITNESS FOR THE DEFENSE AT THE GENERAL COURT-MARTIAL OF CAPT. HANS. C. JOHANSEN, QUARTERMASTER CORPS, UNITED STATES ARMY, FORT SAM HOUSTON, TEX., THE COURT-MARTIAL HAVING BEEN CONVENED UNDER EIGHTH CORPS AREA SPECIAL ORDERS NO. 11, DATED JANUARY 14, 1929. THE PAYMENT IS DESIGNATED AS HAVING BEEN MADE, $75 FROM THE APPROPRIATION "EXPENSES OF COURTS MARTIAL, 1929" (45 STAT. 330), AND $25 FROM "EXPENSES OF COURTS MARTIAL, 1930" (45 STAT. 1354), MR. WEAVER BEING REPRESENTED AS IN ATTENDANCE FROM THE MORNING OF FRIDAY, JUNE 28, 1929, TO THE AFTERNOON OF MONDAY, JULY 1, 1929.

THE CHIEF OF FINANCE, UNITED STATES ARMY, HAS REFERRED FOR DIRECT SETTLEMENT BY THIS OFFICE AN ADDITIONAL CLAIM WHICH MR. WEAVER HAS PRESENTED FOR $44.20, REPRESENTING $25.25 FOR ASSERTED COST OF HIS TRANSPORTATION AND PULLMAN ACCOMMODATIONS FROM DALLAS TO SAN ANTONIA, TEX., AND RETURN, AND $18.95 FOR SUBSISTENCE AT THE TRIAL OF CAPTAIN JOHANSEN. IN SUPPORT OF THIS ADDITIONAL CLAIM MR. WEAVER AVERS IN AN AFFIDAVIT EXECUTED BY HIM FEBRUARY 3, 1930, AS FOLLOWS:

* * * I LEFT MY HOME AT DALLAS, TEXAS, FOR THE PURPOSE OF APPEARING AS AN EXPERT WITNESS IN THE TRIAL OF THE ABOVE NAMED OFFICER AT ABOUT 9 A.M., FRIDAY, JUNE 28, 1929, AND WAS AWAY FROM MY PLACE OF DOMICILE IN ATTENDANCE BEFORE THE COURT UNTIL 9 A.M., TUESDAY, JULY 2, 1929, WHEN I ARRIVED BACK IN DALLAS, TEXAS. * * * I WAS EXCUSED AS A WITNESS FROM ATTENDANCE UPON SAID COURT ON THE AFTERNOON OF MONDAY, JULY 1, 1929. * *

IT IS REPRESENTED THAT HEADQUARTERS, EIGHTH CORPS AREA, VERBALLY APPROVED THE RETENTION OF MR. WEAVER AS AN EXPERT WITNESS BY THE COURT AND PAYMENT OF A FEE OF $25 PER DAY FOR COMPENSATION AND ALL EXPENSES IN THAT CAPACITY UNDER CIRCUMSTANCES RECITED IN A REPORT OF SEPTEMBER 5, 1929, BY THE TRIAL JUDGE ADVOCATE AS FOLLOWS:

THE DEFENSE CALLED AS AN EXPERT WITNESS ON HANDWRITING, MR. W. A. WEAVER A SO-CALLED HANDWRITING EXPERT OF DALLAS, TEXAS. HE APPEARED BEFORE THE COURT ON SATURDAY MORNING, JUNE 29TH, 1929, AND THE DIRECT EXAMINATION BY THE DEFENSE WAS NOT COMPLETED UNTIL THE ADJOURNMENT OF THE COURT ON SATURDAY AFTERNOON, WHEREUPON THE PROSECUTION ANNOUNCED THAT THE CROSS EXAMINATION OF THIS WITNESS WOULD CONSUME THE BETTER PART OF A FULL DAY. THIS NECESSITATED THE HOLDING OVER OF THIS WITNESS, THAT HE MIGHT APPEAR BEFORE THE COURT FOR CROSS EXAMINATION ON MONDAY. TO THIS THE DEFENSE MADE STRENUOUS OBJECTION ON THE PLEA THAT THEY WERE PAYING HIM $50 PER DAY AND EXPENSES. HOWEVER, THE COURT SUSTAINED THE PROSECUTION AND DIRECTED MR. WEAVER TO APPEAR MONDAY MORNING. MR. WEAVER COMPLETED HIS TESTIMONY LATE ON THE AFTERNOON OF JULY 1ST AND WAS EXCUSED BY THE COURT AND ALLOWED TO RETURN TO HIS HOME IN DALLAS. I HAVE RECEIVED A LETTER FROM MR. WEAVER INCLOSING HIS BILL IN THE SUM OF $289.35, THE AMOUNT CLAIMED FOR FIVE DAYS EXPERT SERVICES AS A WITNESS, RAILROAD FARE, AND OTHER EXPENSES. * * *

IT HAS NOT BEEN DISCLOSED WHETHER PAYMENT TO MR. WEAVER HAS BEEN MADE ON BEHALF OF CAPTAIN JOHANSEN IN ACCORDANCE WITH THE TERMS OF THE CONTRACT BETWEEN THEM, NOR IS IT APPARENT ON WHAT THEORY THE ARMY OFFICERS AT FORT SAM HOUSTON, TEX., HAVE ENTERTAINED AND, IN PART, HAVE PAID A CLAIM AGAINST THE UNITED STATES OF MR. WEAVER APPARENTLY BASED ON HIS CONTRACT OF EMPLOYMENT WITH THE ACCUSED CAPTAIN JOHANSEN.

THE RULE IS THAT THE SO-CALLED EXPERT WITNESS IS NOT ENTITLED TO EXTRA COMPENSATION FOR ANY TESTIMONY WHICH HE MAY BE REQUIRED TO GIVE UNDER AN ORDINARY SUBPOENA OF A COURT. PHILLER V. WAUKESHA COUNTY, 139 WIS. 211; 120 N.W. 829; AND ANNOTATION THERETO 25 L.R.A. (N.S.) 1040. IT IS ONLY WHERE AN EXPERT WITNESS IS DESIRED TO GIVE TESTIMONY OF A NATURE WHICH REQUIRES SPECIAL PREPARATION, INVESTIGATION, RESEARCH, OR EXAMINATION OF ANY KIND BY HIM IN ORDER TO PREPARE HIMSELF TO TESTIFY THAT HE HAS A RIGHT TO REGARD SUCH PREPARATORY WORK AS A PROFESSIONAL SERVICE, AND TO DEMAND THE PAYMENT OF A PROFESSIONAL FEE AS DISTINGUISHED FROM THE FEE FIXED BY STATUTES FOR ORDINARY WITNESSES. ANNOTATIONS 2 A.L.R. 1576, AND 16 A.L.R. 1457, 1462, 1463; 40 CYC. 2187. OP.J.A.G. ARMY R. 22, 264, JULY 1866, PAGE 527, 1912 DIGEST. A MILITARY COURT CAN NOT, BY SUBPOENA OR BY ANY FORM OF COMPULSORY PROCESS, EITHER ON BEHALF OF THE GOVERNMENT (PROSECUTION) OR ON BEHALF OF THE ACCUSED, COMPEL THE ATTENDANCE AND SERVICES OF SUCH AN EXPERT WITHOUT HIS CONSENT. SMITH V. UNITED STATES, 24 CT.CLS. 209; 6 COMP. GEN. 712; 7 ID. 232; 8 ID. 64. THE RIGHT OF AN ACCUSED BEFORE A MILITARY COURT, UNDER ARTICLE VI. OF THE AMENDMENTS TO THE CONSTITUTION AND THE TWENTY-SECOND ARTICLE OF WAR, TO HAVE THE BENEFIT OF COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR, ACCORDINGLY, DOES NOT EXTEND TO THE OBTAINING OF THE SERVICES OF SUCH AN EXPERT WITNESS, BUT WHEN THE ACCUSED, HAVING OBTAINED CONSENT FROM THE PROPER AUTHORITY TO INTRODUCE EXPERT TESTIMONY ON HIS BEHALF, OBTAINS THE SERVICES OF AN EXPERT TO GIVE SUCH TESTIMONY, THE MATTER OF COMPENSATION AND EXPENSES FOR THE SERVICES RENDERED IS SOLELY BETWEEN THE ACCUSED AND THE EXPERT AS TO WHICH THE UNITED STATES ASSUMES NO OBLIGATION WHATEVER, THE SITUATION BEING OF SPECIAL CIVIL COUNSEL OF HIS OWN WHATEVER, THE SITUATION BEING ANALOGOUS TO THAT WHEN AN ACCUSED IS PERMITTED TO OBTAIN THE SERVICES OF SPECIAL CIVIL COUNSEL OF HIS OWN SELECTION. OPS.J.A.G. ARMY P. 32, 165, MAY 2, 1899, 1912, OP. J.A.G. 257; CASES CITED UNDER TITLE "EXPERT WITNESSES," PARAGRAPHS 3 AND 7, NAVAL DIGEST, 1916.

THE REASON OF THE RULE RESPECTING EXPERTS IS PARTICULARLY APPARENT WHEN THE NATURE AND OBJECT OF THEIR TESTIMONY AND THE MANNER IN WHICH IT IS LOOKED UPON BY THE JUDICIARY IS REGARDED, THE CHARACTER OF THEIR SERVICES BEING CONCISELY DESCRIBED IN RAWLE'S THIRD REVISION OF BOUVIER'S LAW DICTIONARY (P. 1158) AS FOLLOWS:

* * * THE PRACTICAL RESULT OF THE RULE ADMITTING SUCH TESTIMONY IS FAR FROM SATISFACTORY; ITS PRINCIPAL DEFECT BEING THAT SUCH WITNESSES ARE USUALLY CALLED BECAUSE THEIR KNOWN THEORIES ARE UNDERSTOOD TO SUPPORT THE FACT WHICH THE PARTY CALLING THEM WISHES TO PROVE; GRIGSLY V. WATER O., 40 CAL. 405. "THEY COME," SAYS LORD CAMPBELL, SPEAKING OF SCIENTIFIC WITNESSES,"WITH A BIAS ON THEIR MINDS TO SUPPORT THE CAUSE IN WHICH THEY ARE EMBARKED, AND HARDLY ANY WEIGHT SHOULD BE GIVEN TO THEIR EVIDENCE"; 10 CL. AND F. 154. IT IS SAID TO BE GENERALLY SAFER TO TAKE THE JUDGMENTS OF UNSKILLED JURORS THAN THE HIRED AND BIASED OPINIONS OF EXPERTS; FERGUSON V. HUBBELL, 97 N.Y. 511, 49 AM.REP. 544.

* * * IT HAS BEEN SAID THAT THEY "ARE GENERALLY MERE ARGUMENTS IN BEHALF OF THE SIDE CALLING THEM"; IDEAL STOPPER CO. V. SEAL CO. 131 FED. 249, 65 C.C.A. 436; AND SUCH TESTIMONY IS FREQUENTLY PURIFIER CO., V. CHRISTIAN, 3 BANN AND AP 42, FED.CAS. NO. 307; KING V. CEMENT CO., 6 FISH. 336, FED.CAS. NO 7, 798; L.R. 6 CH.DIV. 415, N. * * *

IT MAY BE THERE HAS BEEN SOME MISAPPREHENSION ARISING FROM THE FACT THAT THE DIRECT EXAMINATION OF ACCUSED'S EXPERT WITNESS (WEAVER) CONSUMED SO MUCH TIME THAT THERE WAS NO OPPORTUNITY FOR CROSS-EXAMINING HIM ON BEHALF OF THE GOVERNMENT ON THE SAME DAY. THE INFERENCE, HOWEVER, THAT THE CROSS -EXAMINATION OF ACCUSED'S EXPERT WITNESS BY THE PROSECUTION MADE THE EXPERT A GOVERNMENT WITNESS FOR THE ENTIRE PERIOD OF HIS SERVICE OVERLOOKS THAT THE NECESSITY FOR HOLDING THE EXPERT UNTIL MONDAY FOR CROSS- EXAMINATION WAS BECAUSE "THE DIRECT EXAMINATION BY THE DEFENSE WAS NOT COMPLETED UNTIL THE ADJOURNMENT OF THE COURT ON SATURDAY AFTERNOON.' THE EXPERT WAS A DEFENSE WITNESS AT DEFENSE EXPENSE AND CROSS-EXAMINATION DID NOT MADE THE EXPERT A PROSECUTION WITNESS; ALSO, WITHOUT CROSS-EXAMINATION THE TESTIMONY OF THE DEFENSE EXPERT WOULD HAVE BEEN NOR MORE THAN AN EX PARTE STATEMENT REQUIRED, ON THAT ACCOUNT, TO BE STRICKEN FROM THE RECORD AS INCOMPETENT. THE RIGHT TO CROSS-EXAMINE THE WITNESS OF AN ADVERSE PARTY IS AN ABSOLUTE RIGHT REFUSAL TO SUBMIT TO WHICH GENERALLY MAKES MANDATORY THE STRIKING OF ALL THE DIRECT TESTIMONY OF THE WITNESS. ANNOTATIONS, TO WRAY V. STATE,--- ALA.---, 45 SO. 697, IN 15 L.R.A. (N.S.) 493; TO PROUT ET AL V. BERNARDS LAND AND SAND CO.--- N.J.---, 73 ATL. 496, IN 25 L.R.A. (N.S.) 683; AND CASE OF STATE V. ZOLANTAKAS,--- UTAH--- , 259 PAC. 1044, 54 A.L.R. 1463, 1468; 40 CYC. 2473-2479. EVEN WHEN A WITNESS CALLED ON BEHALF OF THE ACCUSED TESTIFIES ADVERSELY TO HIM, THE WITNESS "DOES NOT THEREBY BECOME A "WITNESS FOR THE PROSECUTION" .' PARAGRAPH 59, U.S. ARMY MANUAL FOR COURTS MARTIAL, 1928.

THE VERBAL AUTHORIZATION REPRESENTED AS GIVEN BY THE APPOINTING POWER TO RETAIN THE WITNESS (WEAVER) FOR CROSS-EXAMINATION ON BEHALF OF THE GOVERNMENT "AND PAYMENT (TO HIM) OF $25 PER DAY AS AN EXPERT," HAD IT BEEN VALID TO CONSTITUTE WEAVER A WITNESS FOR THE PROSECUTION DURING THE PERIOD OF HIS CROSS-EXAMINATION ON MONDAY, JULY 1, 1929, AND WERE THE PAYMENT OTHERWISE PROPER FROM PUBLIC FUNDS (WHICH IT IS NOT), COULD NOT BE ACCEPTED AS AUTHORITY FOR PAYMENT OF $25 PER DAY TO HIM FOR FRIDAY, SATURDAY, AND SUNDAY, JUNE 28 TO 30, 1929, INCLUSIVE OR AS AUTHORITY FOR THE PAYMENT OF ANY EXPENSES, THE $25 PER DAY AUTHORIZED OBVIOUSLY HAVING BEEN INTENDED TO COVER EVERY FORM OF COMPENSATION AND EXPENSE THE WITNESS MIGHT BE ENTITLED TO CLAIM BY REASON OF HIS RETENTION FOR CROSS EXAMINATION. THE MAXIMUM PAYMENT TO WEAVER WHICH WOULD HAVE BEEN AUTHORIZED ON BEHALF OF THE GOVERNMENT UNDER THESE CIRCUMSTANCES WOULD HAVE BEEN $25, INSTEAD OF THE $100 PAID BY MAJOR NEWTON.

THE VERBAL AUTHORIZATION, HOWEVER, TO RETAIN WEAVER FOR CROSS EXAMINATION AND TO PAY HIM $25 PER DAY THEREFOR DID NOT CONSTITUTE HIM A WITNESS FOR THE GOVERNMENT AND DID NOT GIVE RISE TO ANY OBLIGATION ON THE PART OF THE UNITED STATES TO PAY HIM, HIS ENTIRE CONNECTION WITH THE CASE BEING IN THE STATUS OF AN EXPERT WITNESS FOR THE ACCUSED AND THIS WITHOUT REFERENCE AS TO WHETHER HIS TESTIMONY UNDER CROSS EXAMINATION WAS FAVORABLE OR UNFAVORABLE TO THE ACCUSED. THIS BEING TRUE IT NECESSARILY FOLLOWS THAT MAJOR NEWTON'S CLAIM FOR CREDIT IN HIS OFFICIAL ACCOUNT FOR THE $100 PAYMENT MADE TO WEAVER MUST BE DISALLOWED AND HE WILL BE REQUESTED FORTHWITH TO MAKE DEPOSIT OF THAT SUM TO SATISFY THE RESULTING DEFICIENCY IN HIS ACCOUNT.

THE CLAIM OF MR. WEAVER FOR AN ADDITIONAL $44.20 IS WITHOUT ANY LEGAL MERIT AS AGAINST THE UNITED STATES AND IT IS HEREBY DISALLOWED.