Chapter 25. Obtaining Expert Funding in Indigent Cases
Information in this chapter:
• Justifying extraordinary expenses
• Example language for an ex parte motion for expert funds
Anyone who deals with indigent clients knows that requesting funding is a basic part of getting an expert engaged. In this chapter we provide some sample language for an Ex Parte Order for Expert Funds as well as some information regarding dealing with extraordinary expense requests by covering some of the questions that a judge may want clarified in a case where you may need to engage a nonlocal expert and the answers to those questions.
Keywords
Ex Parte Motion, Extraordinary Expenses, Expert Witness Funds
Introduction
In cases involving indigent clients, you may have a need to get funding approved by a judge or other funding source. This varies by jurisdiction and other vagaries of the funding sources for indigent clients in federal and state cases. Essentially all power to fund defense experts flows from a statute, such as 18 U.S.C. § 3006A(e), or from the defendant’s constitutional right to an expert as part of a fair trial first recognized in Ake v. Oklahoma, 470 U.S. 68 (1985).
Sometimes a barrier to obtaining funds is the lack of understanding by a judge as to why you need a digital forensics expert. Also, in some cases, you may need to engage an expert who is nonlocal, which will incur extra expenses for travel, or in cases where the expert is required to perform work at a law enforcement facility if the case is a contraband case covered by the Adam Walsh Child Protection and Safety Act. In this chapter some of the justification for extraordinary expenses in cases involving digital forensics will be covered and example language for an ex parte order for expert funds is included.
25.1. Justifying extraordinary expenses
In some cases, local experts are simply unavailable for various reasons:
• They don’t handle criminal cases.
• They don’t handle cases involving sex crimes.
• They don’t handle cases involving child pornography.
• They lack the expertise in the specific technology in your case.
• They are simply too busy to take your case.
In a child pornography case in Alabama there was a request for the judge to approve funding for an out-of-state examiner to work as an expert. The judge wanted to better understand why the attorney needed to bring in an out-of-state expert instead of using someone who knew computer technology from a local university.
The following example includes the content of the order and the responses provided.
This cause is before the court on the Defendant’s Motion For Extraordinary Expenses For Expert. The court would be inclined to grant the motion upon a reasonable showing by the Defendant of the following:
1. The specific testimony from the State’s experts for which rebuttal is necessary.
The State’s computer forensics experts will be expected to testify as to the dates and times that various files on the defendant’s computer were created, opened, deleted, and/or accessed. Additionally, expert testimony as to the user’s actions, ownership of the computer, forensic processes used to extract and verify data, the handling and collection of the digital evidence, specifics relating to software programs installed and used in the commission of the alleged offense, and other technical information regarding the specific evidence obtained from the computer or hard drives.
2. A more specific and detailed description of why a computer forensics expert is required for the Defendant.
In order to assist the attorney in properly preparing a defense in matters involving electronic evidence, specifically from computers, hard drives, USB drives, and other digital media, the attorney must have the assistance of a person with the specific training and knowledge of computer forensics.
A computer forensics expert will have knowledge of the proper collection and handling of electronic evidence that a computer expert would not.
In order to prepare a proper defense, the State’s expert’s examination must be verified by an independent expert who has knowledge and training as well as access to the specific forensic software tools used by the State in preparing its case.
Such software, knowledge, and training are not part of the background of computer experts, but are limited to the training and experience of experts in computer forensics.
Additionally, a computer expert would not have the training and specific experience needed to assist the attorney with preparation for trial, including assisting the attorney in preparing for examination of the State’s expert in relation to the forensic evidence that will be presented at trial, nor would a computer expert have the specific knowledge and experience to qualify and present expert witness testimony in the highly technical area of computer forensics.
3. A curriculum vitae and/or such information qualifying the requested expert to perform the services necessary.
The expert’s curriculum vitae is attached to this order.
4. A statement of the expert’s rates for his services and a specific estimate, to the extent one can be given, for the services expected to be rendered.
The expert charges $150.00 per hour for work performed on behalf of the Client. The rate is the same for all activities, including time in court and court testimony.
Based on the circumstances of the case, the expert estimates 10 hours on site for the computer examination, 10 hours for post-examination analysis of collected information, court preparation, and time in transit for a total of $3,000.00.
5. Where the requested expert resides and the estimated costs to be charged for his travel.
The expert resides in Raleigh, North Carolina. The expected travel costs would be as follows:
To perform the examination at the State Forensics Lab in Montgomery, Alabama, the estimated travel cost would be $500.00.
If the expert is needed to return to testify in court, the estimated travel cost would be $500.00.
The travel cost estimate includes airfare, rental car, hotel, and a per diem of $25.00 per day.
These estimates are based on airfares available at the time of this writing and are subject to change.
6. A statement from the requested expert setting out the services and testimony generally that he could provide that would be of assistance to the Defendant.
The expert uses the same computer forensic software used by the State’s Expert and has comparable training and experience. This will enable the expert to verify the examination performed by the State’s expert to ensure that the evidence presented in the case is accurate and complete. The expert will be able to assist the attorney with court preparation, rebuttal of the State’s expert’s testimony, and advice as to the merits of the defense’s case in regard to the computer forensic evidence.
If the defendant decides to proceed to trial, the expert will be able to provide expert testimony about the forensic evidence in the case.
25.2. Example language for an ex parte motion for expert funds
The language and form that follow is an example of how an attorney might go about crafting a motion for expert funds. This is provided for convenience and should be crafted according to your needs by a licensed attorney in the appropriate jurisdiction.
STATE OF NORTH CAROLINAIN THE GENERAL COURT OF JUSTICE
DURHAM COUNTYDISCTRICT COURT DIVISION
FILE NO. 11 CR 00000
STATE OF NORTH CAROLINA
Plaintiff.
vs.
JOHN H. DOE
Defendant.
On motion by the Defendant, by and through his attorney, ex parte pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article 1, Sections 19, 23, and 27 of the North Carolina Constitution and Ake v. Oklahoma, 470 U.S. 68 (1985); State v. Bates, 333 N.C. 323 (1993); State v. Parks, 331 N.C. 649 (1992); State v. Taylor, 327 N.C. 147 (1990); State v. Moore, 3221 N.C. 327 (1988); and pursuant to N.C. Gen. Stat. § 7A-450(b); 7A-451, and 7A-545 to allow funds for the Defendant to hire a certified digital forensics expert, Examiner, to assist him in the evaluation and the preparation of his defense, the Court finds:
1. That Defendant has been charged with theft;
2. That Defendant was determined by the District Court to be indigent;
3. That counsel for Defendant has a reasonable belief that there exists information and data that is stored in electronic format on computers and or other electronic storage media, which information is necessary to ensure that Defendant receives a fair trial and the effective assistance of counsel and to adequately prepare a defense in this matter;
4. That the recovery of this information and data requires specific knowledge and expertise which counsel for the Defendant does not possess;
5. That Examiner, a certified Digital Forensics Consultant, has extensive experience in computer forensics and has provided these services in numerous criminal cases in North Carolina;
6. That the hourly rate charged by Examiner is $250.00 per hour;
7. That Defendant has made a threshold and particularized showing that Defendant will be deprived of a fair trial without the expert assistance of Examiner, and that there is a reasonable likelihood that an expert such as Examiner would materially assist Defendant in the evaluation, preparation, and presentation of the Defense of his case.
THEREFORE, the Court HEREBY ORDERS:
1. That Examiner be appointed as an expert in digital forensics for the Defendant in order to assist Defendant in the evaluation, preparation, and presentation of his defense;
2. That the North Carolina Administrative Office of the Courts pay for Examiner’s services and necessary expense related to said appointment pursuant to N.C. Gen. Stat. § 7A-454 and IDS rules and procedures, in the amounts and at the rates described herein, in an initial amount of $2500.00;
3. Counsel for the Defendant may seek leave of this Court if the need for further services of Examiner is demonstrated;
4. That this ex parte motion and order be sealed and held by the Johnston County Clerk of Court unless and until Defendant calls Mr. Examiner as a witness.
Summary
In this chapter we looked at an example motion that used the language needed for obtaining expenses in indigent cases. We also looked at an example of how you can justify extraordinary expenses.
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