Metzger's right to impeach by every proper means Bailey's opinion that the letter, envelope and card were written by the same hand it seems to me must be conceded. Indeed it was not only his right to do this but his duty to do so — his duty to his clients, to the jury and to the court. Of course if he had known that the letter and the envelope were in the handwriting of one of his clients, as he knew that the writing on the card was, the situation would be quite different. Under such circumstances his effort would have been not to destroy what he believed to be false but to destroy what he knew to be true. I think a lawyer, even in his zeal to extricate his client from a *Page 937 serious position, may not ethically go so far. This, however, was not the case. At the hearing of the instant proceeding Metzger testified that having had considerable experience in chirography he believed that the writing on the card was not by the same person as the writing on the envelope and in the letter. There is no apparent reason for disbelieving him. His purpose therefore was not the evil one of misleading the jury as to a fact which he knew existed but the laudable one of exposing what he believed to be an erroneous opinion. This was in the interest of justice and not against it. Metzger also testified that he had been unable after a long cross-examination of Bailey to discredit his opinion and that there was no other handwriting expert available whom he could consult or to whose opinion he could submit the writings. His only alternative therefore was in some way to lead Bailey to disclose his own fallibility. The question that remains is whether the means he used to accomplish his purpose were unethical.
I do not think that his treatment of the witness was unfair. A cross-examiner is certainly under no professional obligation to warn an expert witness, whose opinion he wishes to test, of the pit which has been dug for him and into which he will fall unless he has sufficient technical learning to discover and avoid it. Nor do I think it a violation of legal ethics to withhold from such witness a fact which, if he knew it, would enable him to discover the pit independently of his technical knowledge. It is a principle peculiar to the cross-examination of expert witnesses that in order to evaluate their opinions things may be assumed as facts which are not facts. This is all that Metzger really did. He in effect assumed, in the presence of the witness, the court and the jury, that the fabricated card was the real exhibit about which the witness had already testified and proceeded to ascertain by cross-examination *Page 938 whether he was capable of discovering that the assumption was false. In doing this he was entirely fair to the witness. According to his testimony he required Bailey to subject the fabricated card to the same tests to which he had subjected the real exhibit and to compare it with the writing on the envelope and the letter just as he had compared the real exhibit. It was an acid test of the value of Bailey's opinion, but no more severe than that to which a handwriting expert may properly be put.
Under the evidence in this proceeding I likewise see no disregard of legal ethics on Metzger's part in delivering to the clerk the fabricated card instead of the original exhibit, without informing him of the substitution. I think the ethical quality of everything that Metzger did in carrying out the plan he devised for testing the accuracy of Bailey's opinion must be judged by the motive that actuated him to make the test, unlesswhat he did was otherwise inherently wrong. His motive in making the test was to discredit an opinion that had been given by a putative expert, which opinion he believed to be erroneous. I see nothing inherently wrong in his temporarily withholding from the clerk the fact that the fabricated card which he delivered was not the original exhibit. That he only intended to temporarily withhold this fact from the clerk is shown by Metzger's testimony that when he handed the clerk the simulated card together with two of the exhibits he had withdrawn the clerk said to him, "I will destroy your receipt," and that he told the clerk not to do this because there would be further transactions with respect to these papers. He did in fact return the original exhibit to the clerk after he had concluded his cross-examination of Bailey. His purpose in withholding the fact from the clerk was to guard against the danger of having his plan for testing the value of Bailey's opinion frustrated by a premature exposure. This was not in my opinion a fraud *Page 939 on the clerk nor was it a fraud on the court nor was it inimical to the cause of justice. It was done not to defeat a fair trial but to promote it. If it had not been done the weakness of Bailey's opinion might not have been revealed and men whom the jury found to be innocent might have been found guilty and sent to the gallows.
I cannot agree that Metzger did anything wrong and I therefore most respectfully dissent from the majority opinion.