Article VII. Opinions and Expert Testimony

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Rule 706: Court-Appointed Experts.

(a) Appointment - The court may not appoint expert witnesses of its own selection on issues to be tried by a jury except as provided otherwise by law. As to bench-tried issues, the court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed and may request the parties to submit nominations. The court ordinarily should appoint expert witnesses agreed upon by the parties, but in appropriate cases, for reasons stated on the record, the court may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness's duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness's findings, the witness's deposition may be taken by any party, and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

(b) Compensation - Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and condemnation proceedings. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs and thereafter charged in like manner as other costs.

(c) Disclosure of Appointment - Where a court-appointed expert is permitted otherwise by law to testify on an issue to be tried by a jury, no one may disclose to the jury the fact that the court appointed the expert witness.

(d) Parties' Experts of Own Selection - Nothing in this rule limits the parties in calling expert witnesses of their own selection.

Advisory Commission Comments.

The Commission was wary of the undue impact a court-appointed expert might have on a jury, and the rule prohibits such experts in jury trials unless expressly permitted by statute. Even where the trial court wants its own expert in a bench trial, the judge normally should defer to the parties' suggestions. Either party may discover and cross-examine the court's expert.

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