this line of inquiry, alleging that Daileda had testified in Court and given statements to Government investigators in these unrelated cases which was favorable to the defendant and then, after the witness was discharged from his position as bank Cashier, supposedly at the behest of defendant, he subsequently changed his testimony and implicated the defendant, all of which, according to the defense, was pertinent on the question of bias and hostility. After cautioning defense counsel '* * * I don't want to plunge this case into completely collateral and unrelated issues that may tend to confuse the jury and somehow submerge the true issues in this case * * *', the trial Court limited any excursion into collateral matters, but permitted defense counsel to proceed, as follows:
'THE COURT: Now, I'm not closing the door to the developing of evidence or testimony concerning this witness's prior testimony in Wilmington, before the Grand Jury or in the statements to the Government investigators if properly tied in so as to show bias or hostility which may qualify as impeaching evidence. Is that understood? 'MR. KOSIK: Yes, sir.' (N.T. 370)
Therefore, if there was any limitation on cross-examination, it was a proper and, indeed, a modest one and left defense counsel free to develop his theory of bias and hostility.
The other exception advanced by defendant is that the Court erred in sustaining the Government's objection to the proposed testimony of Dr. Theodore Kushner. According to defendant's offer, Dr. Kushner, a psychiatrist, was prepared to testify that, although the witness Daileda was not psychotic or insane, '* * * he is a psychopath; that he is capable of lying; that from his examination here he feels that this witness lacks guilt; that he will lie under circumstances such as this; that he has no hesitation in involving this defendant or any other person.' It is conceded that Dr. Kushner never treated Daileda, never examined him, never saw him prior to this trial and that his examination of the witness was limited to having observed him testify in this courtroom for approximately seven hours on direct and cross-examination. The Government objected to this testimony, contending (1) it would be improper to allow an expression of professional opinion as to credibility of a witness; (2) it was an usurpation of the function of the jury; (3) a medical conclusion that Daileda was capable of lying was meaningless and of no aid to the jury, and (4) there was no foundation laid for the reception of this testimony.
'As a general rule, one witness may not give his opinion as to the credibility of another witness. It is improper to adduce testimony that in the opinion of one witness another witness is not telling the truth. An expert cannot be asked to give his opinion on conflicting testimony since to do so he must invade the province of the jury and pass on the credibility of witnesses.' 1 Conrad, Modern Trial Evidence, § 667, pp. 555-556 (1956)
Although there has been a tendency in some instances toward a relaxation of this rule, special circumstances must exist for recognizing an exception to the rule. For example, in United States v. Hiss, 88 F.Supp. 559 (D.C.N.Y.), a psychiatrist was allowed to testify and to give expert testimony impeaching the credibility of the Government's principal witness. However, it is apparent from the opinion that the Court predicated its ruling on the contended insanity or mental derangement of the witness. Moreover, it was a perjury trial in which the testimony of the witness attacked was indispensable and an exhaustive summary of his background, peculiarities and life-time activities was made available to the psychiatrist. This was obviously considered because the Court, when the evidence was allowed, stated: '* * * under the circumstances in this case, and in view of the foundation which has been laid, I think it should be received.' Obviously, the reception of this type of testimony is fraught with danger and great caution must be exercised before this precarious step is taken. It may well open a Pandora's box of diversion, confusion, and remoteness, and the remedy may be more dangerous than the disease it seeks to cure. In United States v. Rosenberg, D.C.N.Y., 108 F.Supp. 798, affirmed 2d Cir. 1952, 200 F.2d 666, certiorari denied 345 U.S. 965, 73 S. Ct. 949, 97 L. Ed. 1384, the Court rejected similar testimony, commenting:
'There may be some rare instances when a trial judge permits testimony by medical experts as to the competence or probity of a witness when appraised solely on his mental ability to testify truthfully, -- that is, whether the witness is a pathological liar or mentally incapable of telling the truth. But it is hornbook law that the credibility of a witness and the weight to be given his testimony rests exclusively with the jury.'
In Rosenberg, the psychiatrist had never seen the witness and did not observe him while he testified. In any event, absent other momentous factors, it exerts a great strain on credulity to contend that a medical witness can give a legally acceptable expert opinion on the mental condition of a witness merely by observing him testify in court for a limited period. Be that as it may, considering the fact that Dr. Kushner was not prepared to state that Daileda was insane or mentally deranged and, considering further, the complete absence of a proper foundation to the offering of such evidence, the Government's objection was well taken. There may be cases where the acceptance of this type of evidence is justified, but this is not such a case.
This case was ably tried by competent counsel and the defendant has no just cause for complaint.
Therefore, after carefully considering all of the defendant's arguments, they are found to be without merit and the motion will be denied.