§706 Court-appointed Expert

• Library: Evidence Restated Deskbook (2021 Ed.)

§706 Court-Appointed Expert

The trial court has the discretion to call an expert witness as the court's witness in the furtherance of justice. A statute or rule may also authorize court-appointed experts.

Notes

Although normally it is the function of the parties to call witnesses, a Missouri trial judge has the discretion in both civil and criminal cases to call a witness as the court's witness in the furtherance of justice. See:

· §614 of this deskbook

· State v. Davis, 566 S.W.2d 437, 447–48 (Mo. banc 1978)

· Townsend v. City of Joplin, 123 S.W. 474, 477 (Mo. App. S.D. 1909)

· Gosnell v. Gosnell, 329 S.W.2d 230, 235 (Mo. App. S.D. 1959)

The court has this discretionary power because the judge is not merely a moderator between contending parties. Rather, the judge is a sworn officer with public duties, a primary one of which is to have cases properly adjudicated. Townsend, 123 S.W. at 477.

"But, . . . 'in exercising this power, a wise discretion should be utilized, not only as to whether witnesses should be called by the court itself, but also as to the extent and manner of the examination permitted. . . .'" Davis, 566 S.W.2d at 448 (citation omitted).

The power applies to the appointment of expert witnesses. Before the adoption of statutes and rules authorizing a court on motion and for good cause to order a physical or mental examination of a party, it was recognized that a trial judge had the discretion in the furtherance of justice to appoint physicians to examine a plaintiff in a personal injury action in order that "the opinion of disinterested and unbiased physicians, not friends of either party to the suit whose testimony might be biased" could be received. Boggs v. Gosser, 55 S.W.2d 722, 724–25 (Mo. App. W.D. 1932); Atkinson v. United Rys., 228 S.W. 483, 484–85 (Mo. 1921). The discretionary power to appoint physicians to examine parties bringing personal injury suits was declared to be an "inherent power" possessed by trial judges in State ex rel. St. Louis Public Service Co. v. McMullan, 297 S.W.2d 431, 435–38 (Mo. banc 1957).

The following are examples of cases involving court-appointed experts:

· Home Tel. Co. v. City of Carthage, 139 S.W. 547, 551 (Mo. banc 1911) (in an action brought by a telephone company to render invalid an ordinance prescribing maximum rates of charge for use of telephones within a city, the court appointed an expert to examine the company's books and property)

· In re Marriage of Graham, 87 S.W.3d 898, 901 (Mo. App.

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