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Rule 706. Court Appointed Experts.
(a)0Appointment.
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Alaska Rule 706 differs substantially from Federal Rule 706 and from superseded Alaska R. Crim.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 9(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.
(b)0Disclosure of Appointment. The court may, in its discretion, disclose to the jury the fact that the court appointed the expert witness. This subdivision is identical to its counterpart in the Federal Rule.
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.
(c)0Parties' Experts of Own Selection. This subdivision follows superseded Alaska R. Crim. P. 28. It permits the court to supplement evidence by calling witnesses, but does not permit the court to abrogate the responsibilities of counsel in an adversary system.
ARTICLE VIII. HEARSAY
Introductory Reporter's Comment
Like Article V, this Article and the Reporter's Comments that accompany it, do not attempt to analyze the history of the hearsay rule and to assess the strengths and weaknesses of hearsay exceptions that have withstood the test of time. This is not to say that Article VIII is nothing more than a codification of common law rules; departures from the common law tradition are frequent, and they are explained in the comments accompanying the relevant sections of the rules. When the common law is carried forward in the rules, only brief mention is made of the rationale for the relevant provisions.
The comments accompanying the rules draw heavily, and at times are verbatim copies, of the Advisory Committee's Notes accompanying the Federal Rules of Evidence. Conspicuously different is the approach of the introductory note on hearsay found in both the Federal and the Alaska Rules. The latter is shorter and assumes greater knowledge on the part of the reader. Practicing lawyers are quite familiar with the rationale for a hearsay rule that begins with the assumption that evidence not tested by cross-examination should be excluded. No matter what the exact words used, problems of sincerity, ambiguity of narration, memory and perception are familiar ones. The Advisory Committee argued that sincerity is "merely0.0.0.0an aspect of the three [otherwise] mentioned." To the extent that some courtroom observers believe that perjury is common even in court, problems of perjury outside of court when there is no cross-examination also are likely to exist. Thus, the Advisory Committee was probably wrong. Aside from cross-examination, other reasons for a hearsay rule include the desirability of having evidence taken under oath and the importance of viewing the demeanor of a witness.
The Advisory Committee is undoubtedly correct in noting that the logic of the argument [supporting a hearsay rule]0.0.0.0might suggest that no testimony be received unless in full compliance with the three ideal conditions. [Cross-examination, oath, and demeanor.] No one advocates this position. Common sense tells that much evidence which is not given under the three conditions may be inherently superior to much that is. Moreover, when the choice is between evidence which is less than best and no evidence at all, only clear folly would dictate an across-the-board policy of doing without. The problem thus resolves itself into effecting a sensible accommodation between these considerations and the desirability of giving testimony under the ideal conditions.
The solution evolved by the common law has been a general rule excluding hearsay but subject to numerous exceptions under circumstances supposed to furnish guarantees of trustworthiness. Criticisms of this scheme are that it is both bulky and complex, fails to screen good from bad hearsay realistically, and inhibits the growth of the law of evidence.
The Advisory Committee goes on at great length to explain why it decided not to abandon the hearsay rule or to greatly simplify it. The shorter, but similar, answer provided by these rules is that the dangers associated with hearsay are real and continue to plague trial courts today as they have in the past. In addition, arguments for simplification such as those advocated by Weinstein, The Probative Force of Hearsay, 46 Iowa L. Rev. 331 (1961), assume greater faith in trial judges than yet can be justified. Moreover, a more flexible rule might tend to confer an unfair advantage on the government in criminal cases and wealthy parties in civil cases who have ready and efficient means for preparing their hearsay evidence for use at trial. Finally, it is likely that a more flexible rule would tend to produce categories of exceptions for the guidance of trial judges that resemble those that are presented in these rules, which are themselves the out-growth of adjudication and many years of debate. Thus, as the Advisory Committee helpfully observed
[t]he approach to hearsay in these rules is that of the common law, i.e., the general rule excluding hearsay, with exceptions under which evidence is not required to be excluded even though hearsay. The traditional hearsay exceptions are drawn upon for the exceptions, collected under two rules, one dealing with situations where availability of the declarant is regarded as immaterial and the other with those whose unavailability is made a condition to the admission of the hearsay statement. Each of the two rules concludes with a provision for hearsay statements not within one of the specified exceptions "but having comparable [equivalent] circumstantial guarantees of trustworthiness."
In its introductory note, the Advisory Committee wrote at length on the subject of confrontation. Although the United States Supreme Court has recognized that the roots of the confrontation protection and the hearsay rule are common, the constitutional protection and the evidence protection are not identical. Clearly, the confrontation clause speaks to subjects not addressed by the hearsay rule: e.g., the confrontation clause mandates that a defendant be given the opportunity to be present at trial, while the hearsay rule does not address this question; and the confrontation requirement may control the scope of cross-examination and impeachment, while the hearsay rule may not. It is just as clear that the hearsay rule goes beyond minimal confrontation requirements in protecting litigants against unfairness. It is difficult to ascertain precisely what limits the confrontation clause, as applied to the states through the fourteenth amendment, places on states in drafting evidence rules. California v. Green, 399 U.S. 149, 26 L.Ed.2d 489 (1970) and Dutton v. Evans, 400 U.S. 74, 27 L.Ed.2d 213 (1970) indicate that the highwater marks of the confrontation clause -Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923 (1965), Douglas v. Alabama, 380 U.S. 415, 13 L.Ed.2d 934 (1965), Burton v. United States, 389 U.S. 818, 19 L.Ed.2d 70 (1968), and Barber v. Page, 390 U.S. 719, 20 L.Ed. 2d 255 (1968) - can no longer be read to expand the protection of the confrontation clause in criminal cases to resemble very closely the protection afforded by hearsay rules. There is no need in these rules to answer the question whether some common law hearsay exceptions violate the confrontation requirement, and if so, which ones. It is sufficient to note that the Alaska Rules are drafted with the confrontation requirement in mind and in an attempt to avoid constitutional difficulties. The federal Advisory Committee made a comment that is appropriate here:
Under the earlier cases, the confrontation clause may have been little more than a constitutional embodiment of the hearsay rule, even including traditional exceptions but with some room for expanding them along similar lines. But under the recent cases the impact of the clause clearly extends beyond the confines of the hearsay rule. These considerations have led the Advisory Committee to conclude that a hearsay rule can function usefully as an adjunct to the confrontation right in constitutional areas and independently in non-constitutional areas. In recognition of the separateness of the confrontation clause and the hearsay rule, and to avoid inviting collisions between them or between the hearsay rule and other exclusionary principles, the exceptions set forth in Rules 803 and 804 are stated in terms of exemption from the general exclusionary mandate of the hearsay rule, rather than in positive terms of admissibility.
For a recent case involving an overlap between hearsay and constitutional issues, see Benefield v. State, 559 P.2d 91 (Alaska 1977).
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Last Modified 7/14/1999
