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Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston, Public Defender Investigator (with credit to Caitlin Fenhagen)

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Page 1: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Getting and Working Effectively with

ExpertsPhillip R. Dixon, Jr., Defender Educator

Beth Winston, Public Defender Investigator

(with credit to Caitlin Fenhagen)

Page 2: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

What the expert can do• INVESTIGATE!

• Review the discovery relevant to their

expertise, and any records collected and

investigation you’ve already done

• Review the State’s response to your discovery

request

• Help with additional specific discovery

motions

Page 3: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

What the expert can do• Prepare you for any Daubert hearing to exclude

State’s witness

• Help prepare cross examination of State’s expert for pre-trial hearing or at trial

• Conduct independent investigation, evaluation, testing or research

• Testify and teach the jury the science

• Experts can assist with guilt/innocence and sentencing hearings/memoranda

Page 4: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

When to Consider Retaining an Expert

• Misdemeanor Case

• Felony Case

• Case Specific Needs

o Investigation: Fact and Background / Mitigation

o DNA Evidence

o Other Forensic Crime Scene Issues

o Mental Health Issues

o Competency Questions

o Sentencing Help

o Translation

o Ineffective Assistance Expert for Post-Conviction

Page 5: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

What expert do you want?• Consult with IDS Forensic Resource Counsel, Sarah

Olson

• IDS Database of experts: Forensic Database

• Consult with Trial Resource Unit of Capital

Defender’s Office

• Consult with Mitigation Coordinator, Vicky McGee

• Ask on listservs

• Consult with local attorneys or PD Office

• Research expert online

• Other Resources

Page 6: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Timing• When to get an expert:

o District or Superior Court?

o Local Rules

o Is there an emergent mental health issue?

o Do you know your client and your case well

enough to identify the issues?

o Do you have sufficient discovery or records to

identify the issues?

o Notice by State of intent to use scientific data

with expert testimony

Page 7: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

First Contact with Expert

• Rates: will the expert work within State rates?

• Amount of Request: discuss the scope of

work, number of hours of work needed,

travel, and cost of testing

• Availability of Expert: is the expert available

now and at time of anticipated testimony?

Page 8: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Form and Rates• Non-Capital Criminal Case Form:

o Prior authorization must be sought through a presiding

judge

o Counsel must complete and submit Form AOC-G-309

along with supporting motion ex parte

o For non-expert flat fee services, the AOC-G-309 form

does not need to be completed (i.e., polygraph

exam, medical procedure, sentencing plan) but

motion and proposed order does

Page 9: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Form and Rates• Standardized Rates for Experts:

o G.S. 15A-905(c)(2) provides “Standardized fee scales

shall be developed by the Administrative Office of

the Courts and Indigent Defense Services for all

expert witnesses and private investigators who are

compensated with State funds.”

Page 10: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Standardized Rate Schedule

Page 11: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Rate Deviation• If expert will not work within State rate, you may

apply for a deviation

• For non-capital cases, counsel must submit

Form AOC-G-310 to IDS Director

Page 12: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Case Law and Statutes

• Ake v. Oklahoma, 470 U.S. 68 (1985): Supreme Court held

that the failure to provide an expert to an indigent

defendant deprived him of a fair opportunity to present

his defense and violated due process

• State v. Ballard, 333 N.C. 515 (1993): Sixth Amendment

right to assistance of counsel entitles defendant to apply

ex parte for appointment of expert. An indigent

defendant is entitled to any form of expert assistance

necessary to his or her defense, not just the assistance of

a psychiatrist

Page 13: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Case Law and Statutes

• State v. Bates, 333 N.C. 523 (1993): error to deny the motion of an indigent defendant for an ex parte hearing regarding his request for the assistance of psychiatrist—violated 5th, 6th, and 14th Am.

• N.C. Gen. Stat. § 7A-450(b): an indigent defendant is entitled to the assistance of counsel and other “necessary expenses of representation.” Necessary expenses include expert assistance. See State v. Tatum, 291 N.C. 73 (1976).

• N.C. Gen. Stat. § 7A-454: authorizes ANY trial court to approve fees for expert witness

Page 14: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Ex Parte Motion for Appointment of Expert

• Ex Parte means DO NOT SERVE MOTION OR

ORDER ON THE PROSECUTION

• State v. Ballard, 333 N.C. 515, 428 S.E. 2d 178

(1993): Constitutional right to ex parte hearing

• Selecting a judge to hear the motion

Page 15: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Ex Parte Motion for Appointment of Expert

• Submit Motion and Form AOC-G-309 to judge or by letter with copies to judge’s chambers

• Per Form AOC-G-309, the Order shall be sealed and either kept sealed in the court file or in the attorney’s file until the conclusion of the case.

• Keep a copy of the order for your file and one for expert (for proof of allocation of funds so he/she can get paid)

• May make motion in district court if case has not yet been indicted

Page 16: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Necessary Showings• Area of Expertise: psychiatrist, investigation,

fingerprint expert, etc.

• Name of expert and description of qualifications

(CV may be included)

• Amount of Funds: include hourly rate, number of

hours of work, cost of testing or other

procedures, travel expenses, and total amount

requested (note rates for waiting and traveling,

use Expert Compensation Calculator on Form

AOC-G-309)

Page 17: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Necessary Showings• Describe work to be performed by expert (i.e.,

review of records, examination of defendant/evidence, interview of particular witnesses testifying at trial, etc.)

• Threshold showing of specific necessity in your case: show defendant will be deprived of fair trial without the expert’s assistance or expert will materially assist the defendant in the preparation of his/her case

• Leave to apply for additional funding if necessary

• Sample Motions in materials

Page 18: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

What if your ex parte motion is denied?

• Get more facts and evidence showing why you need

an expert and renew the motion in writing

• Make proffer regarding the expertise needed

• State v. Jones, 344 N.C. 722, 477 S.E. 2d 147 (1996): NC

Supreme Court ruled trial court erred in denying

renewed request for funds for psychiatrist. Defense

counsel renewed with affidavit supporting the request

Page 19: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

What if your ex parte motion is denied?

• Request a court reporter and ask the judge to hear

and rule on motion again in chambers (Protect the

Record)

• Have the Court issue an order denying the motion

and have motion and order sealed in court file for

appellate review (Protect the Record)

• Call Appellate Defender’s Office

Page 20: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Communication with Experts

• Give a copy of the signed order to the expert along

with clear referral information

• Consider what parts of discovery and/or client records

to send to expert

• Ensure that expert keeps within approved hours,

including travel and waiting times

• They are your agent and confidentiality applies!

Page 21: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Communication with Experts

• Expert may not be paid if time exceeds amount that was pre-approved

• Apply for additional funds for expert, if necessary

• Discuss whether report should be be generated

• Expert will submit a fee app (direct expert to the IDS Website for direction on billing)

o Use Form AOC-G-309, p. 2 and send to IDS Financial Services in Raleigh

Page 22: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Questions?

Page 23: Getting and Working Effectively with Experts Training/2018HighLevelFelony... · Getting and Working Effectively with Experts Phillip R. Dixon, Jr., Defender Educator Beth Winston,

Contact Information• Phillip R. Dixon, Jr., Defender Educator:

[email protected]; (252) 355-8100

• Beth Winston; Public Defender Investigator:

[email protected]; (919) 604-0695