Use Of FRE 706 Court-Appointed Expert Witnesses

In an equity proceeding pursuant to the International Child Abduction Remedies Act (ICARA), plaintiff father sought the return of his young child (ZFK) to Canada after the mother removed the child to the U.S.; although the parties presented different views of the responsibility for, and degree of, physical and psychological abuse suffered by the child, the trial judge erred by failing to conduct an adequate evidentiary hearing; circuit vacates order to return the child to the father in Canada, instructing it make fact findings about the best interests of the child and that “the judge … appoint a child psychologist to interview” the child and report pursuant to FRE 706 on psychological harm suffered by the child, in Khan v. Fatima, _ F.3d _ (7th Cir. May 4, 2012) (No. 12-1692)

Nearly twenty years ago, a research arm of the federal judiciary, the Federal Judicial Center (FJC), probed the use of FER 706 , which authorized a court to appoint its own expert witnesses. Based on an extensive survey of trial judges, the study examined judges' views on the propriety of FRE 706 appointments and why this was done “so infrequently.” Court-Appointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706, Joe S. Cecil &: Thomas E. Willging, Federal Judicial Center (1993). A recent case in the Seventh Circuit adds little new to the application of FRE 706. However, the case is of interest because it illustrates some of the changes and similarities in use or non-use of court-appointed experts over the past twenty years.

In the case, plaintiff father sought and won an ex parte federal court order that the defendant mother “ yield custody of [child] ZFK to him pending resolution of his petition” compelling the return of his young child (ZFK) to Canada. This order was sought under the International Child Abduction Remedies Act ( ICARA). Before issuing the order, the district judge conducted an evidentiary hearing on the matter. The evidence was confusing and far from conclusive as:

The wife’s testimony, if believed, reveals that her husband has a violent, ungovernable temper, had physically abused her on many occasions, some in the presence of ZFK (and in front of the child he had told his wife he would take out her eyeballs—though the child, not quite 3 years old at the time, may not have known what “eyeballs” are), had been rough on occasion with the child—indeed terrified the child—and that the child’s mood had brightened greatly when she was living apart from her father. But if the husband’s testimony is believed, he was, if not a model husband, not an abuser of his wife or the child. His lawyer conducted a vigorous cross‐examination of the wife, based in part on discrepancies between her testimony at the evidentiary hearing and a deposition she had given a few days earlier. She stood her ground, making few concessions to the crossexamining attorney.
Khan, _ F.3d at _ .

As trier of fact in the case, the district judge had an important, “most exacting” responsibility. The judge “can’t just throw up his hands, as happened in this case, because he can’t figure out what is true and what is false in the testimony.... As we said in another case, 'One cannot but sympathize with the inability of the district judge in this case to say more than he did in justification of the damages that he assessed for loss of consortium. But the figures were plucked out of the air, and that procedure cannot be squared with the duty of reasoned, articulate adjudication.....” Khan, _ F.3d at _ (citation omitted) .

As a practical matter the circuit indicated that the judge was not without options, which included the judge ordering that the proceedings adjourn

“for a few days to enable additional evidence to be obtained and presented; in particular he could have had ZFK examined by a child psychologist. The wife’s lawyer—his initial proposal of an expert witness having been turned down because the witness hadn’t had time to examine the child (remember that the hearing was held only two weeks after the respondent learned about the suit)—offered to submit an evaluation based on an examination of the child by the end of the week. The judge refused. His final order, issued as we said the day after the hearing, is two pages long and contains no findings of fact … just a conclusion that the wife had failed to meet her burden of proof. That was not a finding of fact, but a conclusion of law.... It is needless to add that there is no rule exempting the judge from the duty of finding the facts in cases in which the plaintiff has a higher burden of proof than the usual civil burden of the preponderance of the evidence.
Khan, _ F.3d at _ .

The circuit found that this error was not harmless and accordingly ordered that the prior order be “vacated and the case remanded for a proper hearing. We urge that the proceedings on remand be conducted expeditiously and we suggest that the judge to whom the case is assigned appoint a child psychologist to interview ZFK.” Khan, _ F.3d at _ (citing FRE 706).

The FJC study of the use of FRE 706 nearly two decades ago found that “almost all judges are willing to consider the appointment of an expert in at least some circumstances” under FRE 706. However, there were several factors that discouraged this step:

  1. Infrequency of cases [that] require[] extraordinary assistance. – A FRE 706 appointment was rare because the types of cases that would benefit from its application would also be rare.
  2. Respect for the adversarial system. This factor reflected the judge's “judicial philosophy” as well as “a number of judges also mentioned practical problems that serve to impede appointments.”
  3. Difficulty identifying an expert suitable for appointment. Judicial reluctance to appoint an expert also may reflect the difficulty, if not the impossibility, of selecting "a truly neutral person.,,
  4. Securing compensation for an expert. Another practical problem, raised by fourteen judges, concerns the means of compensating an expert. Since the parties are usually assessed a fee for the services of a court-appointed expert, the judge must often order payment by the parties, and perhaps supervise the billing practices of the appointed.
  5. Lack of early recognition that appointment is needed. Thirteen judges indicated that effective appointment of an expert requires the court's awareness of the need for such assistance early in the litigation. Since the parties rarely suggest that the court appoint an expert, judges sometimes realize that they need assistance on the eve of trial when there is not sufficient time to identify and appoint an expert.
Court-Appointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706, Joe S. Cecil &: Thomas E. Willging Federal Judicial Center (1993).


Federal Rules of Evidence