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Law 101: Legal Guide for the Forensic Expert

The Special Master

A special master is usually a court-appointed volunteer attorney, pursuant to Rule 53 of the Federal Rules of Civil Procedure (FRCP). The special master is appointed to carry out some action on the court's behalf, often to sort through scientific issues or to evaluate "scientific facts."  

Except in matters of accounting and difficulty in computing damages, "a reference to a special master shall be made only upon a showing that some exceptional condition requires it" or, in jury trials, "only when the issues are complicated" [FRCP 53(b)]. The costs of the special master are allocated between the parties as the judge determines.

When special masters are used to make findings of fact based on scientific and technical evidence in a jury trial, much of the scientific evidence heard by the special master will be excluded from the record unless the parties introduce it independently at trial.

For this reason, the special master's findings in a jury trial — but not the scientific evidence upon which they are based — are admissible as evidence and may be read to the jury, subject to objections. When the special master reports scientific and technical evidence, it may also be ruled inadmissible and excluded from the record on appeal.

In nonjury trials, special masters' findings must be accepted by district courts unless they are clearly erroneous. The special master must submit a transcript of the proceedings and the evidence as well as the original exhibits used to prepare the report. The court may then review the evidence on its own motion, or upon a motion by a party, and decide whether the special master's findings are clearly erroneous or must be sustained. Attorneys taking depositions in non-courthouse locations may sometimes anticipate certain problems, such as a particular witness refusing to testify. Upon showing good cause, judges have appointed special masters to appear under such circumstances and make evidentiary rulings.

Court-appointed experts have sometimes functioned much like a special master, in addition to preparing to offer testimony. Such experts have reviewed records and prepared reports that were submitted as evidence in a case.

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