As criminal cases get more complicated, both the state and defense counsel are more likely to rely on expert witnesses. Some district attorneys’ offices even have white collar crime units. Financial crimes trials often resemble complicated civil litigation — except the consequences are very different. Technology also makes expert testimony more likely, and digital evidence may require an expert to explain it.

While the subject matter of cases prosecuted in state and federal court can be similar, the rules surrounding discovery of experts is very different and has gotten more different in the last few years.

Modern Federal Expert Disclosure

Since I’ve been practicing law, Rule 16 of the Federal Rules of Criminal Procedure has at least required the parties to provide notice of proposed expert testimony and a summary of the opinions to be expressed. As of Dec. 1, 2022, the Rule has been amended to make the Rule more in line with civil discovery. The idea is that there isn’t much of a justification for requiring detailed disclosure in a civil case but not for a criminal trial. Prior to the amendments, there was a good deal of disagreement about how much detail was required in a federal expert disclosure and when the disclosure should be made.

The amendments brought substantial clarity. The requirements include:

• Instead of a “written summary,” the disclosure now requires a “complete statement” of the proposed opinions.
• The government must disclose experts for their case in chief and rebuttal to properly disclosed defense experts.
• The disclosed qualifications of the expert must include a list of publications from the last 10 years.
• The disclosure must contain a list of all cases within four years where the expert has testified at trial or deposition.
• The disclosure generally must be approved and signed by the expert.
• The district court may set deadlines for disclosure.
• The disclosures must be supplemented with new information.

The defendant has essentially the same obligations. These are still triggered by request.

The Tennessee Version of Rule 16 Does Not Require Expert Disclosures

The Tennessee expert disclosure requirements in Rule 16 are easier to summarize. There aren’t any. So it would be possible to go to trial on a complicated case with essentially no information about complicated expert testimony and no opportunity to present the other side’s proposed opinions to your own expert for review.

Other Avenues for Obtaining Information About Experts

Rule 26.2
If the expert does a report, disclosure of the expert report would be required under Rule 26.2 of the Tennessee Rules of Criminal Procedure. But there are two important things to keep in mind. First, there is generally no requirement than an expert produce a report, and there are no particular requirements for what a report must contain. Second, technically, Rule 26.2 only requires disclosure of the witness’s prior statement upon motion of the other side after the witness has testified on direct. So, one party could call an expert and then hand over the expert report. (Most people don’t do that because it often causes delay, but it complies with the rules). Obviously, if you only get your opponent’s expert report either at trial or shortly before, it does not help to develop rebuttal expert testimony or to prepare to cross-examine the expert.

Daubert/McDaniel Hearings
If the party at least knows the identity of the expert, it may be possible to challenge the admissibility of the opinions pre-trial. If the court holds a pre-trial hearing, at least one result of that is obtaining more information about the expert’s opinions and qualifications.

General Discovery Requirements
Rule 16 requires discovery of documents, photographs, etc. that a party intends to introduce in its case in chief. If an expert relies on exhibits, there will at least be some information disclosed about the expert’s potential testimony. Similarly, the rule requires disclosure of the results of examinations and tests. If the expert has done testing, the results must be turned over.

Court’s General Authority
Under Rule 16(d), courts have discretion to regulate discovery. There is an argument that a court can order the parties to make expert disclosures with a specific finding of necessity.

Conclusion

Getting ready to cross-examine an expert or to develop rebuttal experts is much more challenging in Tennessee state criminal cases than in federal cases. This affects both sides. I don’t have data on this, but my guess is that defendants use experts as much or more than prosecutors. As long as the Tennessee rule does not have explicit disclosure requirements, both prosecutors and defense lawyers will have to use alternative methods to try to learn about the other side’s potential experts. |||

WADE DAVIES is the owner of The Davies Law Firm in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.