§ 24.07 COURT-APPOINTED EXPERTS: FRE 706

• Jurisdiction: United States

§ 24.07. COURT-APPOINTED EXPERTS: FRE 706

A trial court has authority to appoint expert witnesses and technical advisors.¹⁴⁹Federal Rule 706 recognizes this authority.¹⁵⁰ One problem associated with this procedure is the risk that the witness may be cloaked with the authority of the court, at least in the eyes of the jury. The federal drafters acknowledged this problem: "court appointed experts [may] acquire an aura of infallibility to which they are not entitled.. . ."¹⁵¹ Thus, the decision whether to disclose to the jury that the expert has been appointed by the court lies within the discretion of the trial judge.¹⁵² The parties have the right to call their own experts, notwithstanding the appointment of an expert by the court.¹⁵³ Although not frequently used, Rule 706 has been employed in a variety of situations.¹⁵⁴

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Notes:

^[149] See Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1348-49 (11th Cir. 2003) ("[W]e are unfamiliar with any set of circumstances under which a district court bears an affirmative obligation to appoint an independent expert. Quite the contrary, as long as the district court thoroughly considers a request for the appointment of such an expert and reasonably explains its ultimate decision thereon, that decision is vested in the sound discretion of the trial court.").

^[150] Fed. R. Evid. 706 advisory committee's note ("The inherent power of a trial judge to appoint an expert of his own choosing is virtually unquestioned."); Cecil & Willging, Court-Appointed Experts: Defining the Role of Experts Appointed under Federal Rule of Evidence 706 (Fed. Judicial Center 1993); Thorpe, Oelhafen & Arnold, Court-Appointed Experts and Technical Advisors, 26 Litigation 31 (Summer 2000); Note, Improving Judicial Gatekeeping: Technical Advisors and Scientific Evidence, 110 Harv. L. Rev. 941 (1997).

^[151] Fed. R. Evid. 706 advisory committee's note.

^[152] Fed. R. Evid. 706(d).

^[153] Fed. R. Evid. 706(e); Nemir v. Mitsubishi Motors Corp., 381 F.3d 540, 556 (6th Cir. 2004) ("The rule simply does not condition a party's [right to call a court-appointed expert] on the district court's approval, nor does it maintain merely that the district court 'may allow either party to call the witness.' ").

^[154] See Students of California School for the...