15 Sep 23

How Federal Agencies Subpoena and Compensate Expert Witnesses

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Last Updated on: 2nd October 2023, 05:52 pm


How Federal Agencies Subpoena and Compensate Expert Witnesses

Expert witnesses play a critical role in the legal system by providing specialized knowledge and testimony in court cases. When the federal government needs expert testimony for a case, federal agencies have the power to subpoena expert witnesses and provide compensation for their time and expenses.

This article will explain how the subpoena process works, how expert witnesses are compensated, and some of the implications, pros and cons of the current system.

The Subpoena Power of Federal Agencies

Federal agencies have the authority to issue subpoenas to compel witnesses, including expert witnesses, to provide testimony and evidence related to an investigation or legal case [1]. Subpoenas are court orders that require the recipient to appear and give testimony or produce documents.

For example, agencies like the SEC, FTC, and DOJ Antitrust Division routinely subpoena expert economist witnesses in financial fraud, antitrust, and other federal cases. Failure to comply with a federal subpoena can result in civil or criminal contempt sanctions [2].

Federal agencies have some key advantages in subpoenaing expert witnesses:

  • Broad geographic subpoena power – Attorneys representing federal agencies can issue subpoenas nationwide [3].
  • In-house experts – Large agencies like the SEC and DOJ have in-house experts they can rely on before subpoenaing outside experts.
  • Negotiating power – The deep resources of federal agencies give them substantial leverage in negotiating expert fees.

However, critics argue federal agencies sometimes abuse their subpoena power in cases against private citizens and small businesses who don’t have the resources to fight back.

Compensation of Expert Witnesses

Expert witnesses provide testimony in exchange for a fee based on their specialized knowledge and credentials. For federal cases, compensation arrangements can vary:

  • Private experts – Negotiate fees directly with the federal agency’s attorneys based on market rates, travel costs, and other expenses [4].
  • Government employees – May testify as part of their official duties without additional compensation [5].
  • Court appointed experts – Compensated according to limits set by the Criminal Justice Act [6].

Expert witness fees in federal cases can range from a few hundred dollars per hour for routine analysis and testimony to over $1,000 per hour for top experts. Expenses like travel, materials, and support staff may also be compensated.

Critics argue the lack of fee caps or guidelines can lead to exorbitant payments in high profile cases. However, agencies counter that fee caps would deter the best experts from working on important cases.

Ethical Rules for Government Experts

Ethical standards place some limits on federal employees serving as expert witnesses:

  • Must obtain agency approval to testify, unless for the government [5]
  • Testimony cannot conflict with official duties or relate to pending cases involving their agency

These rules aim to prevent conflicts of interest, maintain impartiality, and protect privileged information. But critics say more reforms are needed to prevent agency experts from “rubber stamping” predetermined positions.

Subpoenaing Federal Employees as Experts

While federal agencies can easily subpoena private expert witnesses, compelling federal employees to testify poses some unique challenges:

  • Government can block testimony by asserting privilege [1]
  • Employees can only testify voluntarily or with agency approval [5]
  • Testimony cannot address official policies or pending cases involving their agency

These roadblocks aim to protect privileged information and prevent conflicts of interest. But critics argue they help hide incompetence and misconduct by blocking access to inside experts.

Pros and Cons of the Current System

Some pros of the current system for subpoenaing and compensating federal expert witnesses include:

  • Ensures access to top experts on complex cases
  • Compensates witnesses fairly for their time and knowledge
  • Protects privileged government information

However, there are also some notable cons such as:

  • Lack of compensation guidelines leads to accusations of overpayment
  • Government privilege assertions can block testimony arbitrarily
  • Agency experts may face pressure to support predetermined positions

Analysis and Conclusions

The federal government undoubtedly needs access to highly skilled expert witnesses to prosecute complex cases in the public interest. However, reasonable compensation limits and ethical safeguards are needed to prevent waste and abuse.

While privileges help protect sensitive information, more transparency and oversight could help prevent arbitrary blocking of testimony by agency experts. Overall, the system works reasonably well but still has room for improvement to better serve both the interests of justice and responsible stewardship of taxpayer funds.