Experts for a Party. In civil cases, parties are free to hire their own expert witnesses. Indigent parties, however, are not entitled to have a court-appointed expert at the public’s expense. The denial of such experts does not constitute a denial of due process of law.127
In criminal cases, the appointment of a public defender for an indigent defendant often includes an allocation of funds to pay for an expert. Otherwise, the public defender must petition the court for funds for an expert. The standard of need that must be shown to compel court appointment of an expert to comport with the requirements of due process of law will no doubt depend upon the nature of the case and the type of expert sought.128 Where a criminal defendant is acting pro se, the showing of need must be based on something other than the fact that the defendant is acting pro se and needs help in understanding the procedure.129
Neutral Experts. Trial judges have the inherent power to appoint neutral expert witnesses.130 Moreover, Delaware Rule of Evidence 706 allows a court to appoint a neutral expert on its own motion or upon the motion of any party. The court may appoint an expert agreed upon by the parties or an expert of the court’s own selection, independently or with input from the parties. The court may also invite the parties to show cause why a neutral expert should not be appointed.131
The need for neutral expert witnesses may arise where the parties’ experts are so divergent in their conclusions that the opinion of a neutral party, not affiliated with either side, appears necessary to aid the finder of fact. Neutral experts, however, should not be appointed where they would merely add more divergence and opinion difference.132
An individual must consent to be a neutral witness. The duties of the expert witness are to be set forth in writing, a copy of which is filed with the clerk, or at a conference at which the parties have an opportunity to participate.133
The appointed expert must advise the parties of his or her findings, if any. The parties are entitled to take a deposition of the expert. At trial, the witness may be called by the court of by any party, and be subject to cross-examination by any party, even the party calling the witness.134
The appointed expert is entitled to reasonable compensation, which may be payable from a fund provide by law where applicable, or else is paid by the parties in such proportion and at such time as the court directs.135
127. Ashley v. Kronfeld, No. 172, 1997, slip op. at 3, Berger, J. (Del. June 24, 1997) (ORDER), disposition at 696 A.2d 396 (Del. 1997) (TABLE); Wells v. Cooper, No. 209, 1991, slip op. at 12-13, Christie, J. (Del. Nov. 8, 1991) (TABLE), disposition reported at 605 A.2d 419 (Del. 1991), cert. denied, 503 U.S. 1006 & 504 U.S. 919 (1992).
128. See Ake v. Oklahoma, 470 U.S. 68 (1985) (United States Constitution requires court-appointment of psychiatric expert to assist indigent defendant where mental illness will be a significant factor at trial); Caldwell v. Mississippi, 472 U.S. 320 (1985) (declining to require appointment of a non-psychiatric expert for indigent defendant where there was no showing that the request was reasonable). In federal cases, the Criminal Justice Act requires court-appointment of experts where such experts are necessary for adequate representation of the defendant. 18 U.S.C. § 3006A(e)(1).
129. State v. Ashley, ID#9605003410, slip op. at 3-4, Carpenter, J. (Del. Super. Feb. 12, 1998).
130. Matter of Shell Oil Co., 607 A.2d 1213, 1222 (Del. 1992). Some courts have made this power explicit by court rule. See Comm. Pls. Ct. Cr. R. 28(a); Fam. Ct. Cr. R. 28(a).
131. D.R.E. 706(a); Pellano v. A E S Corp., C.A. No. 09C-11-021 JRJ, slip op. at 2, Jurden, J. (Del. Super. Nov. 5, 2010).
132. Gonsalves v. Straight Arrow Publishing, Inc., 701 A.2d 357, 362 (Del. 1997); Matter of Shell Oil Co., 607 A.2d 1213, 1222 (Del. 1992).
133. D.R.E. 706(a).
134. D.R.E. 706(a).
135. D.R.E. 706(b).
© 2010 David L. Finger