Alaska Comm. R. Evid. 706
This provision recognizes judicial power to appoint experts and outlines the procedures to be followed when courts exercise such power. Like its federal counterpart, this subdivision is largely drawn from a rule of criminal procedure which it supersedes. See Rule 28 Alaska R. Crim. P.
In the Model Expert Testimony Act of 1937, the National Commissioners on Uniform State Laws expressed the view that court appointed experts would strike at the "biased testimony which prevails under the present system." Arguments to the contrary have contended that court appointed experts may be erroneously considered infallible, especially when offered to resolve so-called "battles of the experts." See Levy, Impartial Medical Testimony -- Revisited, 34 Temple L.Q. 416 (1961). This rule recognizes the wisdom of appointing independent experts in some cases, but also acknowledges that there are dangers associated with these appointments. Subdivision (c) further addresses these issues.
Alaska Rule 706 differs substantially from Federal Rule 706 and from superseded Alaska R. Crim. P. 28 in limiting the right of a party calling a court appointed expert to cross-examine that witness. With increased information about an expert's testimony available through the use of depositions, if counsel were to call an expert known to be favorable to his client and also to receive the benefit of leading questions, the consequences to an adverse party may be unduly severe. Moreover, since nothing in the rule prohibits a court appointed expert from cooperating with the parties in preparation for trial, there will be cases in which the party who benefits from the testimony of a court appointed expert has as much opportunity to consult with him before trial as with any other witness.
Where the court determines that justice so requires, the party calling the witness will be permitted to cross-examine him. Two important factors to be considered in making this determination are: whether the party was able to depose the expert and whether the expert cooperated with the party calling him. In other words, the less information the party has, the greater the need to cross-examine. The less cooperation afforded by the expert, the greater the need of the party to cross-examine him. See Rule 611(c), which rule also applies to court appointed experts, for similar consideration allowing the trial judge to permit the direct examiner to ask leading questions.
Where the court calls the expert, Rule 614 governs and both parties may cross-examine the witness.
See Uniform Rule 50; California Evidence Code §§ 730, 732; Nebraska Rule 27-706; Maine Rule 706.
Although this rule is based on Federal Rule 706, it has no provision for compensation of experts comparable to subdivision (b) of the Federal Rule. Compensation of experts is a subject covered by Administrative Rule 7(c). However, once Rule 706 takes effect it may be necessary to reconsider the question of how best to compensate expert witnesses to assure that sufficient compensation is provided so that experts are not reluctant to testify.
The Model Expert Testimony Act (§ 8 ) made disclosure to the jury mandatory. In Uniform Rule 61 disclosure was changed to discretionary, but the Commissioners' Note following the rule indicates that the change may not have been significant.
Since experts appointed by the judge will ordinarily be impartial witnesses, the fact of their appointment should be disclosed to the trier of the facts in order that their testimony may be properly valued.
9A Uniform Laws Annotated 633 (1965).
The Commission's Note assumed that disclosure that an expert is aligned with the court will influence the jury by enhancing the expert's credibility. This assumption is probably valid, but there is always cause for concern when the credibility of a witness is bolstered not by anything that the witness does or says, but by being identified with the court. Assuming that impartiality justifies enhanced credibility, the questions that arise are 1) how much more credible impartiality makes a witness, and 2) who answers the first question. The court can choose only to reveal or not to reveal the nature of an appointment. If the court elects nondisclosure, neither question will have to be answered. Making a wise choice requires an assessment of several factors: the independent weight of the expert's credentials, whether both parties agreed on the expert, the relationship of the court appointed expert's testimony to other expert testimony in the case, the existence of divisions of opinion on important matters among leading experts in a field, and the reasons why the court appointed an expert in the first place.
Alaska Comm. R. Evid. 706