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- in Courtroom Trial Practice
- by Stephen Gustitis
How does the criminal defense attorney obtain funds to pay experts in a criminal case? More specifically, when a defense lawyer needs expert assistance and the client cannot afford to pay for it, how do they approach the judge to request money to hire an expert of their choosing? The Ake v. Oklahoma motion for expert assistance is the answer. The motion for expert assistance is one of the most powerful tools in the criminal defense attorney’s arsenal. It’s typically utilized by criminal lawyers appointed by the court. It can compel judges to approve funding to hire anyone from a private investigator to a forensic computer expert. Under limited circumstances the Ake motion can also be used when a client retained the lawyer but cannot afford an expert. The beauty of this motion is two-fold. First, the defense lawyer is authorized to approach the judge ex parte, meaning without the knowledge of the prosecuting attorney. This permits the lawyer to reveal their defensive theories to justify the expense without the prosecutor knowing. Second, once the funds are obtained the hired expert becomes part of the “defense team” and is sheltered by the attorney’s work-product privilege. This means the expert is prohibited from revealing anything about their investigation to anyone outside the team without the client’s express authorization.
There are crucial steps a Bryan-College Station defense lawyer must take to compel a Brazos County judge to approve funding using the motion for expert assistance. The attorney must first demonstrate the client is indigent or that they cannot afford to hire an expert with their private funds. They must also demonstrate the need for the expert involves some “significant factor” at the guilt/innocence or punishment phase of trial. This often means the expert witness will be needed to develop evidence used in rebuttal of the State’s case or be used to challenge the prosecutor’s forensic experts. Sometimes, the Bryan defense attorney may need to show the legal admissibility of the evidence they are attempting to develop through an expert. Next, the defense lawyer must explain the expert’s qualifications and experience. This usually takes the form of a resume or vita. The trial judge will also require an estimate of the fees and expenses the expert will charge in the case. I typically used a letter from the witness setting forth the proposed work, the anticipated hours invested (including trial testimony), and how much it would cost. Lastly, the defense attorney must assert that neither they, nor their client, is sufficiently knowledgeable in the area of expertise for which they need the expert assistance.
Brazos County judges have historically been cooperative in granting funds when an essential need was appropriately established through an Ake motion. They might quibble over the cost sometimes, and often they pressured the lawyer to convince the expert to work for somewhat less. Nevertheless, they usually got what they asked for. Further, if the motion was presented satisfactorily, but the judge denied funding, the defense lawyer now had an issue they could argue on appeal.
With the funding in hand for an expert of choice, the College Station lawyer could feel more confident in providing their client with an effective defense. And even though this funding procedure was mostly used in court-appointed cases, often funds could be acquired in a retained case if the lawyer could show their client had exhausted their financial resources and could not afford to hire a needed expert.
You can access an example Ake Motion here on Dropbox.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.