Court-Appointed Expert Witnesses

(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. (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. (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 involving just compensation under the Fifth Amendment, 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. (d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the jury that the court appointed the expert. (e) Parties’ Choice of Their Own Experts. This rule does not limit a party in calling its own experts. (f) Certain Eminent Domain Cases. Subdivisions (a)-(d) do not apply to an appraiser whom a court appoints – as required by law – for an immediate possession claim in an eminent domain case. [Restyled effective July 1, 2016.] Advisory Committee Historical Note Effective July 1, 2016, the Rule was amended as part of the general restyling of the Evidence Rules. Effective June 16, 2016, the “Comment” was retitled “Advisory Committee Note.” Effective March 20, 1995, the Advisory Committee Note to Rule 706 was amended to note the repeal of a statute. 648-651 So. 2d 651 So. 2d XXVI (West Miss. Cas. 1995). Effective January 31, 1990, Rule 706 and its Advisory Committee Note were amended to reflect the decision in Hudspeth v. State Highway Comm’n of Mississippi, 534 So. 2d 210 (Miss. 1988) amending Rule 706, November 16, 1988, effective retroactive to January 1, 1986. 553-556 So. 2d XXVII (West Miss. Cas. 1990). Advisory Committee Note The language of Rule 706 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. The provisions regarding the appointment process and the expert’s role – formerly combined in a single subdivision – now appear in separate subdivisions (a) and (b). These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. The essence of Rule 706 is contained in subdivision (a). Subdivision (a) provides specifically for the appointment of an expert either on the motion of a party or on the judge’s own motion. It also provides for input by the parties into the selection process. Under the rule, the court-appointed expert may be deposed. Any party, including the party calling the expert, may cross-examine him. This rule was amended in 1988 in Hudspeth v. State Highway Commission of Mississippi, 534 So. 2d 210 (Miss. 1988), to be consistent with the provisions of then existing M.C.A. § 11-27-89 which provided that court appointed experts would not be compelled to testify. The amendment was made retroactive to January 1, 1986, the effective date of the Mississippi Rules of Evidence. Subsequent to the Hudspeth amendment, Rule 706(f) was amended to retain the substance of Rule 706(f) as originally approved by the Court in Hudspeth while deleting any reference to and dependence upon a specific statutory provision. [“Advisory Committee Note” substituted for “Comment,” effective June 16, 2016; amended July 1, 2016, to note restyling.] ARTICLE VIII. HEARSAY A witness’s testimony is evaluated on the basis of four factors: perception, memory, narration, and sincerity. In order that the testimony can be properly considered in the light of these factors, the testimony should comply with three conditions. The witness should testify (1) under oath, (2) in the presence of the trier of fact, and (3) be subjected to cross-examination. Past experience as well as common sense indicate that some testimony which does not conform to these three conditions may be more valuable than testimony that does. The four factors may, in some instances, be present in the absence of compliance with the three aforementioned conditions. The solution that the common law developed over a period of time was a general rule against hearsay which permitted exceptions which furnished guarantees of trustworthiness and reliability. The hearsay provisions of the uniform rules retain the common law scheme. The traditional common law hearsay exceptions have been retained in Rules 803 and 804. Rule 803 concerns itself with situations where availability of the declarant is immaterial. Rule 804 pertains to exceptions which are usable only where the declarant is unavailable. Rule 807 allows for the use of hearsay statements which do not fall within the recognized exceptions, when the guarantees of trustworthiness and necessity are present. This provision recognizes that the law is not stagnant; it is designed to encourage the development of this area of the law. [Amended effective April 7, 2025.]