Key Concepts

  • The trial judge may appoint on its own motion or at the request of a party an expert witness who is agreed to by the parties or selected by the court.
  • An expert witness appointed by the court must disclose his or her findings to the parties, and he or she may be called to testify by any party or the court, after which the witness is subject to cross-examination by each party.
  • The court may disclose to the jury that the expert witness was appointed by the court.
  • Appointment of an expert witness by the court does not bar the parties from calling their own expert witnesses.

The Basic Rule

Rule 706 – Court Appointed Experts

(a)  Appointment. - The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party. He shall be subject to cross-examination by each party, including a party calling him as a witness.

(b)  Compensation. - Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation for the taking of property. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.

(c)  Disclosure of appointment. - In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.

(d)  Parties' experts of own selection. - Nothing in this rule limits the parties in calling expert witnesses of their own selection.

G.S. 8C-706.

Legal Overview 

Rule 706 allows the trial judge to select and appoint an expert witness and sets forth the appropriate procedures for calling such a witness to testify. See G.S. 8C-706(a), (b); see also State v. Horne, 171 N.C. 787 (1916) (finding it was “a matter within the sound discretion of the trial judge” to call an expert who was not desired by either side: the judge “has the right to call to the witness stand and examine any witness who may be able to shed light upon the controversy” but the judge “should exercise this right with care, and should so conduct the examination as not to prejudice either party”). The statutory procedures set forth in G.S. 8C-706(a) and (b) cover matters such as compensation, disclosure of expert’s status to the jury, advising parties of the expert’s findings, procedure for eliciting testimony, and allowing cross-examination.

The court may choose to disclose to the jury that the expert was appointed by the court. G.S. 8C-706(c). The court’s appointment of an expert does not bar the state or the defense from calling their own expert witnesses. See G.S. 8C-706(d).

This rule is only rarely used in criminal practice. See, e.g., State v. Robinson, 368 N.C. 596 (2015) and State v. Augustine, 368 N.C. 594 (2015) (authorizing appointment and payment of an expert “to conduct a quantitative and qualitative study,” pursuant to Rule 706, on remand to trial court regarding motions for appropriate relief under the Racial Justice Act).

For information about the related topic of appointing experts at the request of an indigent defendant to assist in his or her defense pursuant to G.S. 7A-454, see the Pretrial entry on Experts/Resources for Indigent Defendants.

Portions of this entry were excerpted from Jessica Smith, “Criminal Evidence: Expert Testimony,” North Carolina Superior Court Judges’ Benchbook, August 2017.