Standard:

Reasonable compensation for expert witnesses necessary to preparation and presentation of the defense case shall be provided. Expert witness fees should be maintained and allocated from funds separate from those provided for defender services. Requests for expert witness fees under Court Rule 3.1 f should be made through an ex parte motion. The defense should be free to retain the expert of its choosing and in no cases should be forced to select experts from a list pre-approved by either the court or the prosecution.

Related Standards:

American Bar Association, Standards for Criminal Justice, 5-1.4.

National Legal Aid and Defender Association, Standards for Defender Services, Standard IV 2d, 3.

National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Defense Contracts, 1983, Standard III-8d.

National Advisory Commission, Task Force on Courts, 1973, Standard 13.14.

Commentary:

The availability to the defense of funds for expert witnesses varies greatly from county to county and is often significantly less than the funds available to the prosecution.

Many attorneys contracting for public defense services must pay for expert witnesses crucial to the defense case out of the money they receive for their legal representation. This creates a conflict of interest for attorneys who must choose between their own income and retaining an expert for the defendant.

The ABA Standards for Providing Defense Services state that the legal representation plan "should provide for investigatory, expert, and other services necessary to quality legal representation." These services are required not only for an effective defense at trial, but also for "effective participation at every stage of the criminal proceeding." The NLADA Guidelines warn against contracts creating conflicts of interest between the defense attorney and the client. "Expenses for investigations, expert witnesses, transcripts and other necessary services for the defense should not substantially decrease the contractor's income or compensation."

In many jurisdictions, defense attorneys must seek court approval for defense experts. This is often done in open court, where the prosecutor is allowed to comment on the appropriateness of the request. The NLADA Standards for Defense Services require that funds be provided to defender programs for the "confidential employment of experts and specialists" which may be of assistance to the defense.

In some jurisdictions in Washington, judges have budget line items for defense services which are inadequate to meet the reasonable requests of defense counsel. The approval of expert funds in one case should not deprive another defendant of his or her ability to mount an effective defense. In other jurisdictions only those experts which have been approved by the prosecuting attorney are available to the defense. This severely compromises the defense's ability to present independent evidence and to seek out those experts who will most effectively represent the client's best interests.