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Law 101: Legal Guide for the Forensic Expert

Rules of Discovery for Experts

National Institute of Justice (NIJ) (see reuse policy).

In both federal and state courts, rules of criminal and civil procedure have been enacted to provide for the discovery process.

Discovery and inspection in federal criminal cases are generally governed by Federal Rules of Criminal Procedure (FRCrimP) 16 or state rules of a similar nature. In many state courts, the federal rules have either been adopted directly or used to provide the basis for the state's criminal procedural rules.

Discovery actions in federal civil cases are usually governed by Federal Rules of Civil Procedure (FRCivP) 26 through 37. In state court, civil discovery operates under state statutes and rules, many of which are based on FRCivP.

Throughout this module, the primary reference is to the federal rule because it is a common basis for both federal and state courts. The expert witness should be aware that state rules may vary from the federal rules. Therefore, the expert should consult, at the earliest opportunity, with the attorney who has identified him as a witness for the case.

All procedural rules must be liberally construed to secure just, speedy and inexpensive dispute resolution as well as simplicity, fairness and the abolition of unjustifiable expense and delay.

In both criminal and civil contexts, the intent of discovery is to enable both parties to obtain the necessary evidence to evaluate and resolve their dispute expeditiously and to eliminate surprise during trial preparation. These objectives are accomplished by:

  • Compelling disclosure during the period preceding trial rather than during trial.
  • Enabling parties to clarify and narrow the basic issues.
  • Educating parties, in advance, of the real value of their defenses and claims.
  • Assisting parties with the preparation and presentation of their cases.

(Source: 23 Am. Jur. 2d Depositions and Discovery § 1.)

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