Monday, February 24, 2014
Federal Rule of Evidence 706(a) provides that
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.
In Karsjens v. Jesson, 2014 WL 667971 (D.Minn. 2014), fourteen plaintiffs who were all civilly committed to the Minnesota Sex Offender Program ("MSOP") raised several challenges to MSOP and the Minnesota statutes governing civil commitment and treatment of sex offenders. In response, the United States District Court for the District of Minnesota appointed four expert witnesses pursuant to Federal Rule of Evidence 706(a). Specifically, the Court delineated the duties of the experts as follows:
• To advise the Court on professional standards of care and treatment of sex offenders, both within and outside large facilities;
• To advise the Court on professional standards on conditions/rules regarding confinement/security within large facilities, such as [MSOP];
• To advise the Court on experiences and programs among the states in this field;
• To advise the Court on research on effectiveness of treatment, and on recidivism, in both large facilities and appropriate less restrictive programs;
• To advise the Court regarding risk assessment and placement decisions for sex offenders;
• To advise the Court [on] practices, rules, treatment, conditions, risk assessments, and the like at [MSOP], and the professional adequacy of care, treatment and confinement at the Program;
• To advise the Court on any matters the experts believe are pertinent to understanding their findings and recommendations regarding the above duties;
• To make recommendations to the Court regarding these matters, and to respond to any further inquiries by the Court.
In response, the plaintiffs proposed that the experts focus their work on certain areas while the defendant sought to limit the scope of their work. Ultimately, the court met somewhere in the middle.
This seems like Rule 706(a) working the right way, and I'd love to see more courts appoint experts under the Rule. I'm guessing that one big concern is what happens when a party completely opposes an expert.