RULE 706. COURT-APPOINTED
S WITNESSES (a) Appointment. The court, on motion of any party or its
own motion, may enter an order
to show cause why expert witnesses should not be appointed, and may request the parties to
submit nominations. The court may appoint any expert witnesses agreed upon by the parties,
and may appoint expert witnesses of its own selection. An expert witness may not be
appointed by the court unless the witness consents to act.
(a) Appointment Process. On a party's motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.
A witness so appointed must be informed of the witness'
duties by the court in writing, a
copy of which must be filed with the clerk, or at a conference in which the parties have
opportunity to participate. A witness so appointed shall advise the parties of the witness'
findings, if any; the witness' deposition may be taken by any party; and the witness may be
called to testify by the court or any party. The witness is subject to cross-examination by
each party, including a party calling the witness.
(b) Expert's Role. The court must inform the expert of the expert's duties. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. The expert:
(1) must advise the parties of any findings the expert makes;
(2) may be deposed by any party;
(3) may be called to testify by the court or any party; and
(4) may be cross-examined by any party, including the party that called the expert.
(b) Compensation. Expert witnesses so appointed are
entitled to a reasonable compensation
in whatever sum the court may allow. The compensation thus fixed is payable from funds
which may be provided by law. In civil actions where no funds are provided by law, the
compensation shall be paid by the parties in such proportion and at such times as the court
directs and thereafter charged in like manner as other costs.
(c) Compensation. The expert is entitled to a reasonable compensation, as set by the court. The compensation is payable as follows:
(1) in a criminal case or in a civil case when the law allows it, from any funds that are provided by law; and
(2) in any other civil case, by the parties in the proportion and at the time that the court directs - and the compensation is then charged like other costs.
(c) Disclosure of appointment. In the exercise of its
discretion, the court may authorize
disclosure to the jury of the fact that the court appointed the expert
(d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the jury that the court appointed the expert.
(d) Parties' experts of own selection. Nothing in this rule
limits the parties in calling expert
witnesses of their own selection.
(e) Parties' Choice of Their Own Experts. This rule does not limit a party in calling its own experts.
Rule 706 was amended, effective March 1, 1990; ________________.
With only a minor change, this rule is an
adoption of Rule 706 of the Federal Rules of
Evidence. It comports with present North Dakota practice, but is a more detailed statement
of the procedure involved whenever a court appoints an expert than presently exists in North
Dakota law. Cf. Rule 28, NDRCrimP.
Rule 706 is based on Fed.R.Ev. 706.
Subdivision (a) was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 706 was amended, effective ______________, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee Minutes
of _______________; March 24-25, 1988,
page 12; December 3, 1987, pages 15-16; June 3, 1976, pages 7, 8; October 1, 1975, page
6. Rule Fed.R.Ev. 706 , Federal Rules of
Evidence; Rule 706, SBAND proposal.
Considered: N.D.C.C. § 28-26-06(5).
Rules: Considered: Rules 16(4), 26, 35, NDRCivP; Rule 28(a),
Cross Reference: N.D.R.Civ.P. 16 (Pretrial Conferences; Scheduling; Management), N.D.R.Civ.P. 26 (General Provisions Governing Discovery), N.D.R.Civ.P. 35 (Physical and Mental Examination); N.D.R.Crim.P. 28 (Interpreters).