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Survey Article


One of the paradoxes of the law is presented by the large number of decisions discussing evidence points and the small number which allow these points to affect the appellate court's judgment. A reversal solely on the basis of erroneous admission or exclusion seldom occurs. Perhaps this is as it should be. In this field the appellate courts lay down the principles for the trial courts to follow but usually do not interfere with the trial judge's application of those principles. Sometimes, however, the appellate courts are too ready to reverse. In Henderson v. State the charge was murder and an expert on the identification of bullets was called by the prosecution. He testified that he compared the bullet taken from the body of the deceased with bullets fired from the pistol which was shown to have belonged to the accused; that the comparison was made by examination under a comparision microscope; and that in his opinion the pistol in evidence fired the bullet taken from the body. On cross-examination he testified that although he used a certain instrument for measuring the distance between the grooves he did not use the same instrument to measure the distance across the top of a groove. When asked why not, he answered, "I didn't do that because the comparison microscope is the highest and best evidence." Defendant's counsel objected to the answer as a conclusion. The trial judge said, "I overrule the objection because it was in response to a question asked by the counsel." This was held to be error and the conviction was reversed although the accused had been identified by the eyewitness to the shooting. The court said that the answer was not responsive to the question asked by defendant's counsel and was a conclusion of law on a question that only the court could determine. Actually, it is probable that the witness was not entering the realm of law at all. He formed his opinion from certain evidence presented to his eyes in the laboratory. He was expressing his opinion as to what was the best evidence in a laboratory from a scientific standpoint. He spoke of the. microscope, something which was not offered in court. Therefore if his words are taken literally they could not mean the best evidence in the legal sense. Even if his words are interpreted to mean that what he saw through the microscope was the highest evidence, the words still are just as likely to refer to scientific evidence as to legal evidence. The witness having qualified as an expert on bullets could give his opinion as to the most scientific evidence for identification of bullets. Looked at in this light the answer was entirely responsive to the question asked. If counsel thought the answer was not clear he should have asked further questions such as why the microscopic evidence was better than measurement. The reversal was the second by the Supreme Court in the same case within twelve months and the second conviction did not rest upon ballistics alone.

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