The Champion

June 2012 , Page 48 

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Strategies and Tips for CJA Court-Appointed Counsel When Requesting Experts, Investigators, or Other Resources

By Mark E. Cedrone and Aubrey Cedrone Emrich

This article will explore strategies and tips for counsel when requesting ancillary services such as investigative, expert, or other necessary services to assist counsel in representing indigent clients.

At the federal level, securing adequate representation of indigents - a right guaranteed under the United States Constitution as recognized by Gideon v. Wainwright1 - and procedures governing requests for experts, investigators, and other ancillary services are governed by statute, specifically, the Criminal Justice Act, codified at 18 U.S.C. § 3006A.2 

In addition to the statutory provisions in § 3006A, the Administrative Office of the United States Courts (AOUSC), on behalf of the Federal Judiciary, has issued guidelines governing the authorization and payment for investigative, expert, or other services. Specifically, the Guide to Judiciary Policy issued by the AOUSC details guidelines governing authorization and payment for investigative experts or other services.3 

Securing Services Other Than Counsel

The Criminal Justice Act provides:

(e) Services other than counsel. -

(1) Upon request. - Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate judge if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.

(2) Without prior request. - (A) Counsel appointed under this section may obtain, subject to later review, investigative, expert, and other services without prior authorization if necessary for adequate representation. Except as provided in subparagraph (B) of this paragraph, the total cost of services obtained without prior authorization may not exceed $800 and expenses reasonably incurred.

(B) The court, or the United States magistrate judge (if the services were rendered in a case disposed of entirely before the United States magistrate judge), may, in the interest of justice, and upon the finding that timely procurement of necessary services could not await prior authorization, approve payment for such services after they have been obtained, even if the cost of such services exceeds $800.

(3) Maximum amounts. - Compensation to be paid to a person for services rendered by him to a person under this subsection, or to be paid to an organization for services rendered by an employee thereof, shall not exceed $2,400, exclusive of reimbursement for expenses reasonably incurred, unless payment in excess of that limit is certified by the court, or by the United States magistrate judge if the services were rendered in connection with a case disposed of entirely before him, as necessary to provide fair compensation for services of an unusual character or duration, and the amount of the excess payment is approved by the chief judge of the circuit. The chief judge of the circuit may delegate such approval authority to an active or senior circuit judge.

(4) Disclosure of fees. - The amounts paid under this subsection for services in any case shall be made available to the public.

(5) The dollar amounts provided in paragraphs (2) and (3) shall be adjusted simultaneously by an amount, rounded to the nearest multiple of $100, equal to the percentage of the cumulative adjustments taking effect under section 5303 of title 5 in the rates of pay under the General Schedule since the date the dollar amounts provided in paragraphs (2) and (3), respectively, were last enacted or adjusted by statute.4 

A. Statutory/Regulatory Scheme - Who May Request What

Before discussing strategies defense counsel can employ when seeking investigative, expert, or other services, perhaps it is best to review, in a general sense, the governing statute and regulations. At the outset, defense attorneys should note that the Criminal Justice Act does not limit its applicability to defendants represented by court-appointed counsel. Instead, any "person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them. …"5 

To the extent that the Criminal Justice Act itself lacks clarity on this point, the AOUSC's guidelines specifically provide:

[Ancillary services] necessary to adequate representation, as authorized by subsection (e) of the Criminal Justice Act (CJA) (18 U.S.C. § 3006A), are available to persons who are eligible under the CJA, including persons who have retained counsel but who are found by the court to be financially unable to obtain the necessary services.6 

For defendants represented by retained counsel, before the court can authorize payment for investigative, expert, or other services necessary for adequate representation, the guidelines require the court first to assess the extent to which the defendant can afford to pay for the services. This determination, in part, requires an analysis of whether the defendant's "resources are in excess of the amount needed to provide the [defendant] and the [defendant's] dependents with the necessities of life, provide defendant's release on bond, and pay a reasonable fee to the [defendant's] retained counsel. …"7 

When a defendant represented by retained counsel seeks to have the court underwrite the cost of necessary investigative, expert, or other services, courts must undertake an inquiry "into the fee arrangement between the retained attorney and the client."8 In doing so, the court must determine whether the fee is reasonable "in relation to fees customarily paid to qualified practitioners in the community" or whether the fee "was made with a gross disregard of the defendant's trial expenses."9 If the court determines the fee to be excessive, the court may order retained counsel to "pay out of [counsel's] fees all or such part of the costs and expenses as the court may direct."10 

Similarly, individuals who elect to proceed pro se are also entitled to have the court underwrite necessary investigative, expert, or other services.11 The court is to consider claims for ancillary services made by pro se defendants "in the same manner as is its practice with respect to requests made by [a court-appointed attorney]."12 

Therefore, whether a defendant is represented by appointed counsel, retained counsel, or proceeding pro se, he is entitled to have the court underwrite the cost associated with securing ancillary services, such as investigators, experts, or other services necessary to adequate representation.13 

Regardless of defendant's representational status, a defendant seeking investigative, expert, or other services must establish to the court's satisfaction the necessity of the requested service14 and that he is "financially unable to obtain" the necessary services.15 With respect to establishing a defendant's inability to afford/obtain necessary ancillary services, if the court has previously appointed counsel, presumably, the court has already made some determination concerning defendant's inability to fund an adequate defense. For defendants with retained counsel, or defendants proceeding pro se, any request for investigative, expert, or other services must include evidence of inability to pay for the expert.

Below are portions of a redacted/modified Motion for Authorization to Hire a Drug Trafficking and Narcotics Investigative Procedures Expert in United States v. Moore, a case in which the defendant retained counsel but could not afford the services of a necessary expert.

UNITED STATES OF AMERICA : 

v.                                             : 

THOMAS MOORE              : 

                                                :  Criminal No. 12-1234 

                                                : 

Defendant Thomas Moore's Ex Parte Application for Authorization to Hire a Drug Trafficking and Narcotics Investigative Procedures Expert

Thomas Moore, by and through his undersigned counsel, hereby makes this ex parte application, pursuant to 18 U.S.C. § 3006A(e), for authorization to hire a drug trafficking and narcotics investigative procedures expert, and in support hereof states:

1. On or about May 9, 2007, a Grand Jury sitting within this judicial district returned an Indictment in this matter.

2. On March 3, 2009, undersigned counsel substituted his appearance for that of Attorney Big Shot, who was required to withdraw due to a potential conflict of interest.

3. Undersigned counsel entered his appearance only after Mr. Moore and his family were able to make financial arrangements to pay the undersigned's fees.

4. The financial agreement between undersigned counsel, Mr. Moore, and his family concerns only the fees for undersigned counsel's services and does not provide for the payment of experts or other ancillary services necessary to defend Mr. Moore properly. The fee for counsel's services is quite modest as counsel assumed responsibility of this matter as a personal favor to Attorney Big Shot, with whom the undersigned is well acquainted.1 

5. For the reasons set forth below, to properly defend this case, Mr. Moore requires the services of a drug trafficking and narcotics investigative procedures expert, which he cannot afford.

6. Mr. Moore's financial circumstances as set forth in the attached Financial Affidavit in Support of Request for Attorney, Expert, or Other Court Services Without Payment of Fee (CJA 23) (Exhibit "2" hereto) are such that he is indigent under the Criminal Justice Act.

7. Mr. Moore's financial status renders him eligible for Criminal Justice Act funds necessary for ancillary services, including investigators and experts, under 18 U.S.C. §§ 3006A and 3006A(e).

* * * 

16. Ex parte applications are authorized pursuant to 18 U.S.C. § 3006A(e)(1) as follows:

Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application.

17. Mr. Moore is indigent and, hence, entitled to CJA counsel in this case and ancillary services necessary for adequate representation. See 18 U.S.C. § 3006A(e)(1).

18. Although undersigned counsel reached a financial agreement with Mr. Moore and his family concerning fees for services, Mr. Moore is indigent and unable to pay for investigative, expert, or other services necessary for adequate representation.

19. The fact that Mr. Moore has retained counsel does not disqualify him from entitlement to "services other than counsel." Specifically, the Criminal Justice Act provides:

Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate judge if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.  

18 U.S.C. § 3006A(e)(1). The operative statute does not tie eligibility for expert services to having court-appointed counsel. Instead, under the statute, entitlement turns on being "a person who is financially unable to obtain [necessary ancillary services]." Id. 

20. This issue (the use of CJA funds for ancillary services by individuals represented by retained counsel) has been addressed by the Administrative Office of the United States Courts in its publication entitled "Guide to Judiciary Policy." Specifically, in relevant part, this Guide provides:

§ 310.10.20 Retained Counsel and Fee Arrangements

(a) In responding to requests for services under 18 U.S.C. § 3006A(e) by a person represented by retained counsel, the court should inquire into the fee arrangement between the retained attorney and the client.

(b) If the court finds the fee arrangement unreasonable in relation to fees customarily paid to qualified practitioners in the community for services in criminal matters of similar duration and complexity, or that it was made with a gross disregard of the defendant's trial expenses, the court may order the retained attorney to pay out of such fees all or such part of the costs and expenses as the court may direct.

21. Although Mr. Moore has retained counsel, counsel's fee is certainly not unreasonable in relation to fees customarily paid to qualified practitioners in the community for services in criminal matters of similar duration or complexity, and was not set with gross disregard to Mr. Moore's trial expenses. In light of this, it is clear that Mr. Moore remains entitled to CJA funds for investigative, expert, or other services necessary to adequate representation.

* * * 

26. Undersigned counsel certifies his belief that the above-described services are necessary to adequately dispatch his duty to zealously represent Mr. Moore in this proceeding.

WHEREFORE, Thomas Moore hereby seeks authorization to engage a drug trafficking and narcotics investigative procedures expert (not to exceed $2,400 without additional court approval) to assist undersigned counsel in the preparation of a defense.

In this example, Mr. Moore addressed all of the factors the court would consider in determining whether a defendant who had retained counsel may nonetheless receive court funding for services other than counsel. First, Mr. Moore provided sufficient information for the court to "inquire into the fee arrangement between the retained attorney and the client."16 Next, Mr. Moore adequately demonstrated his inability to pay for the needed expert. Finally, Mr. Moore established that his retained counsel's fee was not excessive and disproportionate to local customary practice.

After the defendant establishes inability to finance the requested services, counsel (or the pro se defendant) must demonstrate the necessity of the requested service. Note, the statute does not limit the types of services for which funding can be requested. A financially eligible defendant can seek ancillary services of any kind provided the defendant can establish requisite necessity. Determinations of necessity are to be made on a case-by-case basis.17 

The following additional portions from the Motion in United States v. Moore address the necessity prong of 18 U.S.C. § 3006(e)(1).

UNITED STATES OF AMERICA : 

v.                                             : 

THOMAS MOORE             : 

                                                :  Criminal No. 12-1234 

                                                : 

  

Defendant Thomas Moore's Ex Parte Application for Authorization to Hire a Drug Trafficking and Narcotics Investigative Procedures Expert

Thomas Moore, by and through his undersigned counsel, hereby makes this ex parte application, pursuant to 18 U.S.C. § 3006A(e), for authorization to hire a drug trafficking and narcotics investigative procedures expert, and in support hereof states:

1. On or about May 9, 2007, a Grand Jury sitting within this judicial district returned an Indictment in this matter.

* * *

8. The services of a drug trafficking and narcotics investigative procedures expert are needed to assist counsel in the preparation of the defense in this case and authorization is hereby sought to employ such services.

9. The requested services are necessary as the allegations against Mr. Moore place him at the very periphery of a significant drug transaction of which he had no knowledge and which was to net him a $15.00 tip for his efforts per his statement after arrest.

10. At all times relevant to this matter, Mr. Moore worked as a taxicab driver.2 

11. On February 7, 2007, co-defendant hired Mr. Moore to drive her to a UPS store on Main Street from where she picked up two parcels which, unbeknownst to Mr. Moore, contained a large quantity of cocaine.

12. Mr. Moore was arrested shortly thereafter without incident. He never handled the suspect parcels; never participated in any pre-delivery "counter surveillance;" and was never involved in any other way with the suspect parcels. Mr. Moore has no prior criminal history. In fact, he applied for and was issued a State B License to Carry a Firearm for purposes of self-defense after the appropriate investigation was conducted. He held this license to carry at the time of his arrest in the subject matter when his handgun was found on his person. In addition, law enforcement confiscated no money from Mr. Moore.

13. Mr. Moore did not knowingly participate in any conspiratorial activity or any activity relating to the distribution of controlled substances. Essentially, Mr. Moore was an unwitting cab driver hired to drive co-defendant to pick up what turned out to be controlled substances.

14. A drug trafficking and narcotics investigative procedures expert is needed to explain the workings of narcotic transactions and how individuals like Mr. Moore are essentially used by drug traffickers. Such expert is necessary for Mr. Moore to properly defend himself in these proceedings.

15. Mr. Moore requires a drug trafficking and narcotics investigative procedures expert for the following reasons:

a. To explain how police narcotics investigations are conducted, the procedures to be followed, and the policies/reasons for same;

b. To explain the different roles individuals play in drug trafficking;

c. To explain the use of firearms in drug trafficking and to contrast it with Mr. Moore's conduct in obtaining a license to carry a firearm;

d. To explain the significance of using a rental vehicle in drug trafficking and contrast it with Mr. Moore's use of a taxicab which was directly traceable to him in the subject transaction; and

e. To explain the use of "dupes" by drug traffickers.

* * *

26. Undersigned counsel certifies his belief that the above-described services are necessary to adequately dispatch his duty to zealously represent Mr. Moore in this proceeding.

Through the above portions of the Motion, defendant Thomas Moore informed the court as to why he needed the requested expert. Note, he did not summarily state that he needed an expert. Instead, he provided specific justifications to support the request.

B. Statutory/Regulatory Scheme - Limitations/Protocols

Regardless of who makes, and the nature of, the request for necessary ancillary services, the statute and regulations provide limitations and procedural protocols.

Generally, the court must approve in advance requests for investigative, expert, or other necessary services. However, two exceptions exist that allow defendants to secure these services prior to obtaining approval by the court. First, defendants in noncapital cases may expend up to $800 for investigative services without first seeking court approval.18 Additionally, when defendants are required to expend more than $800 for a necessary ancillary service, but do not have sufficient time to seek prior court approval, the court may approve payment upon a showing that the interest of justice required expending the funds and that timely procurement of necessary services could not await prior authorization.19 

Counsel who expend funds without prior court approval (whether it be for less than $800 as authorized on the face of the statute or because of temporal exigencies) do so at their own peril. In most instances, the provider of the service will look to counsel to pay for the service provided. To the extent the court - either at the end of the case with the submission of a request for case-related remuneration, or upon a Motion filed in the setting where counsel did not have sufficient time to secure prior approval - does not approve payment or partial payment, counsel will be "stuck" paying the bill. Therefore, to the extent practical, and consistent with the needs of the case, counsel should always seek advance court approval, regardless of the cost of the service that will be provided.

Under the statute, all requests for ancillary services are limited to $2,400. When certified by the court, however, the defense can exceed this $2,400 cap.20 In light of the relatively modest nature of this statutory cap, counsel should be prepared to justify the extent of the necessary services when the expected costs will likely exceed the cap. A suggestion is to inform the court up front that it might be necessary to exceed the statutory cap. In fact, it would be prudent of counsel to make an initial request for the services not exceeding the statutory cap. Within that same request, counsel should inform the court that it may be required to exceed the cap; however, within the confines of the initial round of work, counsel will develop a budget for the total project.

The following sections were included in a Motion filed in a case in which the need for investigative services would far exceed the $2,400 statutory cap, but could not be determined at the onset of commencing work.

UNITED STATES OF AMERICA : 

v.                                             : 

BRUCE WAYNE                   : 

                                                : Criminal No. 12-5678: 

  

Defendant Bruce Wayne's Ex Parte Application for Authorization to Hire a Defense Investigator

Bruce Wayne, by and through his undersigned counsel, hereby makes this ex parte application, pursuant to 18 U.S.C. § 3006A(e), for authorization to hire a defense investigator, and in support hereof states:

* * *

3. The requested services are justified for the following reasons:

a. Mr. Wayne stands charged with two (2) counts of assault, in violation of 18 U.S.C. § 113(a)(3). Specifically, while being housed at the Federal Detention Facility in Gotham City (FDF), Mr. Wayne allegedly assaulted another inmate, specifically, a Joseph Joker. Mr. Wayne assaulted Mr. Joker because he feared that Mr. Joker was about to inflict serious bodily injury on him.

b. Mr. Wayne's reasonable fear of Mr. Joker followed a series of comments and interactions with Mr. Joker and a number of other inmates. This series of communications and interactions occurred over the several week period prior to December 25, 2009, the date of the assault for which Mr. Wayne stands charged. Several other inmates and FDF staff members witnessed this series of threatening communications and interactions.

c. Mr. Wayne requires the assistance of a private investigator to locate and interview the witnesses to the interactions that underlie Mr. Wayne's reasonable belief that he was in danger at the time of the incident.

d. Undersigned counsel believes that to properly defend Mr. Wayne in these proceedings, it is necessary to have a defense investigator assist counsel to identify, locate, and interview potential defense witnesses.

* * *

6. Court authorization for necessary investigative and/or expert services is not required if the value of such services does not exceed $800. 18 U.S.C. § 3006A(e)(2)(A).

7. Expenses for ancillary services in excess of $800, not to exceed $2,400, can be incurred with prior court authorization. See 18 U.S.C. § 3006A(e)(3).

8. The scope of the investigative services necessary to properly defend Mr. Wayne is not yet known, but undersigned counsel fully expects the costs for these services will exceed $2,400.3 In light of this, counsel will ask the retained private investigator to determine the full scope of the necessary services within the confines of the initial $2,400 authorization, at which time counsel will then supplement this request.

C. Statutory Scheme - Ex Parte Applications/Requests

The Criminal Justice Act specifically allows for, and effectively requires that, all requests for investigators, experts, or other necessary services be made via an ex parte application.21 Practices supporting the implementation of the statutes and regulations governing requests for investigative, expert, or other necessary services vary from court to court. In certain instances, courts will conduct hearings to determine necessity, while in many judicial districts, courts will rule on requests simply on the papers submitted. Even within judicial districts, each particular court's practice may vary. Some courts may engage in direct discussions, while others might require everything to be done through pleadings and/or written submissions.

Regardless of the local practice, requests for ancillary services can, and arguably must, be made through in camera/ex parte applications. This presents a legitimate opportunity for counsel to "discuss" the case with the court. Would it not be great if at a cocktail party counsel saw a judge presiding over a particular case and counsel could pull the judge aside and say, "Let's talk about this case I have before you." Well, the ex parte nature of applications for necessary ancillary services presents a unique and appropriate opportunity to engage in such ex parte contact.

Of course, counsel should not abuse this opportunity. Counsel should, therefore, limit the discussion of the case to areas necessary to the request for services. However, within the confines of those parameters, counsel should freely exploit the opportunity to discuss the case.

D. Types of Funding Requests

As a general proposition, the most common requests concern experts, investigators, and technological support. However, there are no prohibitions on the types of services counsel can request, but they must be "necessary for adequate representation."22 Therefore, a defendant can request paralegals, mitigation specialists, and consultants of any kind. For example, in cases in which a conviction may result in collateral immigration consequences, it would not be unreasonable for a defendant to request the court to underwrite the expense associated with consulting with immigration counsel.

Confirming the unlimited scope of the types of ancillary services an attorney might request, the AOUSC's guidelines provide that:

In addition to investigators, psychiatrists, psychologists, and reporters, services other than counsel may include, but are not necessarily limited to:

  • interpreters;
  • computer systems and automation litigation support personnel and experts;
  • paralegals and legal assistants, including law students;
  • neurologists and other medical experts; and
  • laboratory experts in such areas as ballistics, fingerprinting, and handwriting.23 

In today's digital age, at least within federal practice, there has been a proliferation of electronically developed or stored information. For example, in cases involving wiretaps, it is not uncommon to receive voluminous digital recordings. Likewise, the volume of digitally stored information seems to be increasing in discovery production.

Given this reality, counsel should seriously consider seeking approval to engage computer consultants and/or other service providers to assist counsel in the management, analysis, and storage of potentially voluminous digital information. The AOUSC guidelines address the need for computer hardware, software, and litigation support services.24 In doing so, the AOUSC recognizes that an adequate defense may require counsel to "utilize computer hardware, software, or litigation support services not typically available in a law office."25 The guidelines contain detailed provisions governing requests for payment of technological support, including but not limited to: (1) requiring consultation with the National Litigation Support Team in the Office of Defender Services of the AOUSC for requests with expected combined costs exceeding $10,000;26 and (2) protocols for essentially borrowing hardware or software from the AOUSC.27 

E. Content of Funding Requests

In light of the defendant's obligation to establish both financial eligibility and necessity for the requested service, counsel should be diligent and comprehensive in making requests for services. Depending on the form of the request (which will be dictated by the particular jurisdiction and/or court), a defendant may want to include the following in the request: (1) the status of the case; (2) the service requested (whether investigator, expert, technological, etc.); (3) the need for the service; (4) specifically what the service provider will do; (5) the provider's qualifications; and (6) how much the service will cost.

When a defendant seeks the assistance of an expert, the defendant should identify the following: (1) the expert service being requested; (2) the need for the expert - in other words, why the expert is critical to the case to effectively represent the defendant; (3) why the counsel does not have the requisite skills; and (4) exactly what the expert will do, for example, review records, conduct interviews, and/or perform tests or analyses. Additionally, in today's austere fiscal environment, counsel should inform the court of costs. Counsel should endeavor to negotiate rates with service providers, such as experts or investigators, which are lower than their normal hourly rates.

To the extent counsel seeks investigative assistance, the defendant should advise the court of the status of the investigator's work, especially if the investigator has already performed some preliminary work on the case. The defendant should also outline, with specificity, the investigative tasks to be provided and why they are critical to the adequate representation of the defendant. Again, counsel should inform the court of the cost savings resulting from using an investigator. Obviously, it would be less costly for an investigator to conduct witness interviews than it might be for counsel to conduct the same interviews.

Depending on local practice, the defense will be required to file or submit something to the court making the request. Typically, requests for ancillary services would most likely take the form of an ex parte Motion submitted under seal. However, depending on local practice, the defense can make requests by letter or even by memorandum.

Regardless of the form of the request, this presents an opportunity to "educate" the court concerning what might be significant mitigating information. Keep in mind that requests for funding for ancillary services are to be made ex parte. Without abusing the process, counsel should view this as an opportunity to have a discussion with the court concerning the facts and circumstances of the case so as to demonstrate the necessity for the service counsel is requesting.

Given the educational opportunity presented by making requests for ancillary services, the requests should contain a detailed history of the case. Fairness and completeness dictate that the defendant outline the government's version of the offense, including a discussion of "bad" facts. Obviously, to establish necessity, the defendant will therefore need to outline the defendant's version of the case. In addition, the defendant should take this opportunity to outline the hardships and limitations of representing the defendant in the case, as well as to summarize the nature of the request and the qualifications of the service provider of concern.

Some recommend presenting requests for ancillary services as a David versus Goliath-type scene. The defense attorney should remind the court that the government might have investigated the case for a significantly longer time than the defendant has had to prepare for trial. Such arguments may be highly relevant to establishing the necessity for the services counsel is requesting. 

To advance the educational component of the request, counsel should consider including: (1) a relevant history of the case; (2) a statement detailing the government's version of the case and the respective burdens of proof; (3) a statement concerning the defense theory and version of the facts; and (4) an analysis of how the requested service is necessary to the advancement of the defense theory. These suggestions are not to the exclusion of what counsel should establish with respect to cost savings and other issues necessary to the court's determination.

Finally, defense counsel must give proper care to making requests for ancillary services in cases involving indigent defendants. As discussed above, especially in today's financially troubling environment, it is becoming increasingly more difficult to convince courts to expend money on behalf of indigent defendants. Convincing a court to do so requires counsel to be as strong an advocate as possible and not simply expect the court to understand the need for the service and therefore "rubberstamp" the request.

F. Conclusion

The U.S. Constitution recognizes that criminal defendants, including indigent ones, are entitled to adequate representation. Through the Criminal Justice Act, Congress and the AOUSC detail the services and procedures available to defendants who cannot afford to adequately defend themselves. Counsel should not only be aware of how to secure investigative, expert, or other services necessary to adequately represent clients, but should take advantage of all services available, the parameters of which are limited only by counsel's ability to establish necessity for the services.

Notes

  1. 372 U.S. 335 (1963).
  2. Although this article is based primarily and almost exclusively on federal statutes, guidelines, and practices, many states have statutory schemes, which likewise govern the processes associated with securing ancillary services necessary to the proper representation of an indigent defendant. See, e.g., Cal. Penal Code § 987.2 (West 2012) ("[A]ssigned counsel shall receive a reasonable sum for compensation and for necessary expenses. …"); Fla. Stat. Ann. § 29.007 (2012) (granting payment "from state revenues" to "witnesses, including expert witnesses, summoned to appear…in a case when the witnesses are summoned on behalf of an indigent, and any other expert witnesses approved by the court"); 725 Ill. Comp. Stat. 5/113-3 (2012) (granting payment to expert witnesses in capital cases only); Iowa Code Ann. R. 2.20(4) (West 2012) ("Upon finding, after appropriate inquiry, that the services are necessary and that the defendant is financially unable to provide compensation, the court shall authorize counsel to obtain the witnesses on behalf of the defendant."); Mich. Comp. Laws § 775.15 (2012) (granting the court authority to issue payment to a "material witness" when the accused "cannot obtain the means to procure the attendance of such witness");N.H. Rev. Stat. Ann. § 604 - A:6 (2012) (authorizing counsel for indigent defendant to obtain "investigative, expert, or other services necessary to an adequate defense" not exceeding $300 per person or association, unless the "court determines that the nature or quantity of such services reasonably merits greater compensation"); N.M. Stat. § 31-16-3 (2012) ("A needy person … is entitled to be represented by an attorney to the same extent as a person having his own counsel and to be provided with the necessary services and facilities of representation, including investigation and other preparation."); Vt. Stat. Ann. tit. 13 § 5231 (2012) (requiring prior court approval for any "necessary services and facilities" that exceed $1,500); W. Va. Code § 29-21-13a(e) (2012) (allowing reimbursement for investigative services and expert witnesses upon court approval for felonies for which life imprisonment may be imposed but capping reimbursement for "all other eligible proceedings" to "a maximum of one thousand five hundred dollars unless the court, for good cause shown, approves reimbursement of a larger sum").
  3. See Guide to Judiciary Policies and Procedures (hereinafter "Guide"), Vol. 7, Pt. A, Ch. 3, availableat http://www.uscourts.gov/FederalCourts/AppointmentOfCounsel/CJAGuidelinesForms/vol7PartA/vol7PartAChapter3.aspx. The guidelines detailed in Chapter 3 govern noncapital cases in federal court. Guidelines governing federal capital cases are set forth at Guide, Vol. 7A § 660, et seq.
  4. 18 U.S.C. § 3006A(e).
  5. 18 U.S.C. § 3006A(e)(1).
  6. Guide, Vol. 7A § 310.10.10(a) (emphasis added).
  7. Guide, Vol. 7A § 310.10.10(b).
  8. Guide, Vol. 7A § 310.10.20(a).
  9. Guide, Vol. 7A § 310.10.20(b).
  10. Id. 
  11. Guide, Vol. 7A § 310.10.30(a).
  12. Guide, Vol. 7A § 310.10.30(b).
  13. 18 U.S.C. § 3006A(e)(1).
  14. See, e.g., United States v. Anderson, 547 F.3d 831, 834 (7th Cir. 2008) ("A judge is not required to appoint a mental health expert without a showing that the appointment would have some (not necessarily a great) likelihood of resulting in a reduced sentence."); United States v. Gadison, 8 F.3d 186, 191 (5th Cir. 1993) (defendant must justify with specificity why investigative services are necessary); United States v. Smith, 987 F.2d 888, 891 (2d Cir. 1993).
  15. 18 U.S.C. § 3006A(e)(1).
  16. Guide, Vol. 7A § 310.10.20(a).
  17. See United States v. Theriault, 440 F.2d 713, 715 (5th Cir. 1971). See also United States v. Schultz, 431 F.2d 907, 913 (8th Cir. 1970) (Mehaffy, J., concurring).
  18. 18 U.S.C. § 3006A(e)(2)(A).
  19. 18 U.S.C. § 3006A(e)(2)(B).
  20. 18 U.S.C. § 3006A(e)(3); Guide, Vol. 7A, § 310.20.20.
  21. 18 U.S.C. § 3006A(e)(1); Guide, Vol. 7A, § 310.30 ("Ex parte applications for services other than counsel under 18 U.S.C. § 3006A(e) must be heard in camera,and must not be revealed without the consent of the defendant.").
  22. 18 U.S.C. § 3006A(e)(1).
  23. Guide, Vol. 7A § 320.70.10.
  24. Guide, Vol. 7A § 320.70.40.
  25. Guide, Vol. 7A § 320.70.40(a)(1).
  26. Guide, Vol. 7A § 320.70.40(a)(2).
  27. Guide, Vol. 7A § 320.70.40(b). 

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