Guide to Evidence  Section 706. Court-appointed experts

(a) Appointment

If legally permissible, the court, on its own or at the request of a party, may appoint an expert. Unless mandated by law to accept the assignment, the expert shall have the right to refuse such appointment. The court, after providing an opportunity to the parties to participate, shall inform the expert of the duties encompassed in the appointment. The expert may be required to testify.

(b) Compensation

Expert witnesses so appointed are entitled to reasonable compensation, as set by the court, unless controlled by statute or rule. Except as otherwise provided by law, 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

The fact that the court appointed the expert witness shall not be disclosed to the jury.

(d) Parties’ choice of their own experts

This section does not limit a party in calling its own experts.

This section, derived from Commonwealth v. O’Brien, 423 Mass. 841, 855 n.24 (1996), and Fed. R. Evid. 706, reflects the Massachusetts practice of making widespread use of court appointed experts. See, e.g., G. L. c. 119, §§ 21, 24 (court appointed expert to assist in determination of cases involving children in need of services); G. L. c. 123, § 15(a)–(c) (court appointed expert to assess criminal defendant’s competency to stand trial or criminal responsibility); G. L. c. 123, § 15(e) (court appointed expert to render opinion to assist court in sentencing defendant); G. L. c. 190B, § 5-303(e) (court appointed expert to assess mental health of a person who may be in need of guardianship); G. L. c. 215, § 56A (guardian ad litem to investigate facts for the Probate and Family Court relating to care, custody, and maintenance of children); Brodie v. Jordan, 447 Mass. 866, 867 (2006) (expert witness appointed by court to render opinion on the value of corporation’s net assets); Commonwealth v. Berry, 420 Mass. 95, 103 (1995) (judge warranted in relying upon opinion of court appointed expert); Commonwealth v. Aponte, 391 Mass. 494, 497–498 (1984) (court appointed expert in statistical analysis in social sciences to assist in resolution of challenge to method of grand jury selection in Essex County); Gilmore v. Gilmore, 369 Mass. 598, 604–‌605 (1976) (use of court appointed guardian ad litem for investigation in child custody cases); Munshani v. Signal Lake Venture Fund II, LP, 60 Mass. App. Ct. 714, 717 (2004) (court appointed expert to assess authenticity of an electronic communication).

Failure to seek funds to consult or retain an expert where there is new scientific research and the science is evolving, which could provide a substantial ground of defense, may constitute ineffective assistance of counsel. Commonwealth v. Millien, 474 Mass. 417 (2016) (failure to consult or call expert on shaken baby syndrome).