Standard Four: Responsibility for Expert Witness Fees

American Bar Association Standards for Criminal Justice, Standard 5-1.4, Supporting Services and Training:
The plan should provide for investigatory, expert, and other services necessary to an adequate defense. These should include not only those services and facilities needed for an effective defense at trial but also those that are required for effective defense participation in every phase of the process. The plan should also provide for the effective training of defenders and assigned counsel.

Commentary:
Quality legal representation cannot be rendered either by defenders or by assigned counsel unless the lawyers have available for their use adequate supporting services. These include inter alia expert witnesses capable of testifying at trial and at other proceedings, personnel skilled in social work and related disciplines to provide assistance at pretrial release hearings and at sentencings, and trained investigators to interview witnesses and to assemble demonstrative evidence. The quality of representation at trial, for example, may be excellent and yet valueless to the defendant if the defense requires the assistance of a psychiatrist or handwriting expert and no such services are available.
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In the absence of statutory provisions, some courts have recognized a defendant's constitutional right to expert services at state expense. Thus, the appointment in Illinois of a document examiner and in New Jersey of an expert on the effects of alcohol have been justified on constitutional grounds. As stated by the United States Court of Appeals for the District of Columbia Circuit, the test is "whether the defendant is financially unable to obtain the required service himself, and whether the service is necessary to the preparation and presentation of an adequate defense." (U.S. v. Chavis, 476 F2d 1137, 1141.

Ake v. Oklahoma, 470 U.S. 68, 1055 S Ct 1087; 84 L Ed 2d 53 (1985):
[470 US 76]
III
This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.
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[470 US 77]
Meaningful access to justice has been the consistent theme of these cases. We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. Thus, while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, see Ross v. Moffitt, 417 US 600, 41 L Ed 2d 341, 94 S Ct 2437 (1974), it has often reaffirmed that fundamental fairness entitles indigent defendants to "an adequate opportunity to present their claims fairly within the adversary system" id., at 612, 41 L Ed 2d 341, 94 S Ct 2437. To implement this principle, we have focused on identifying the "basic tools of an adequate defense or appeal," Britt v. North Carolina, 404 US 226, 227, 30 L Ed 2d 400, 92 S Ct 431 (1971), and we have required that such tools be provided to those defendants who cannot afford to pay for them.

National Legal Aid and Defender Association, Standards for Defender Services, Standard IV 2d and 3:
2. The budget of the defender for operational expenses other than the costs of personnel should be substantially equivalent and certainly not less (where such comparisons are relevant) to that provided for other components of the justice system with whom the defender must interact, such as the courts, prosecution, the private bar and the police. Therefore, his budget must include:
   1. Funds for the confidential employment of experts and specialists, such as psychiatrists, criminalistics, forensic pathologists and other scientific experts generally in all cases in which the same may be of assistance to the defense.
3. Essential to the provision of effective representation is the adequacy of supportive services for the defender. Supportive services should include, but are not limited to, secretarial, investigative and other necessary personnel, and sufficient funds should be provided to retain various experts for investigation, consultation, and/or attendance in court.

National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1983, Guideline III-8d, Support Staff and Forensic Experts:
The contract should provide for employment of secretaries, social work staff, mental health professionals, forensic experts and support staff to perform tasks not requiring legal credentials or experience and tasks for which support staff and forensic experts possess special skills. Such skills are particularly important in ensuring effective performance of defense counsel at the bail, pretrial release, investigation and sentencing stages, and in the preparation of dispositional plans.
1. Forensic and Other Experts. The contract should specifically include funds for confidential hiring of forensic and other experts and for the use of forensic experts at trial.

National Legal Aid and Defender Association, Guidelines, Guideline III-13a, Conflicts of Interest:
The contract should avoid creating conflicts of interest between the Contractor or individual defense attorney and clients. Specifically:
1. expenses for investigations, expert witnesses, transcripts and other necessary services for the defense should not decrease the Contractor's income or compensation to attorneys or other personnel.

National Advisory Commission, Task Force on Courts,1973, Standard 13.14:
Public defender offices should have adequate supportive services, including secretarial, investigation, and social work assistance.

The budget of a public defender for operational expenses other than the costs of personnel should be substantially equivalent to, and certainly not less than, that provided for other components of the justice system with whom the public defender must interact, such as the courts, prosecution, the private bar, and the police. The budget should include:
Funds for the employment of experts and specialists, such as psychiatrists, forensic pathologists, and other scientific experts in all cases in which they may be of assistance to the defense.

National Study Commission Defense Services, Guidelines, Guideline 3.4, Nonpersonnel Needs in Defender Offices:
Defender office budgets should include funds for procurement of experts and consultants, ordering of minutes and transcripts on an expedited basis and for the procurement of other necessary services. Defender offices should not be required to seek prior approval or post-expenditure ratification of payments for such services except in those limited cases where the expenditure is extraordinary.