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Contents
Part A. General
Part B. Policies Regarding Investigative,
Expert and Other Services
CHAPTER III. AUTHORIZATION AND PAYMENT FOR INVESTIGATIVE,
EXPERT OR OTHER SERVICES
Part A. General.
3.0l Availability.
A. Investigative, expert or other services necessary to adequate
representation, as authorized by subsection (e) of the Act, shall
be available to persons who are eligible under the Act, including
persons who have retained counsel but who are found by the court
to be financially unable to obtain the necessary services. In this
connection, a person with retained counsel is financially unable
to obtain the necessary services if his resources are in excess of
the amount needed to provide him and his dependents with the necessities
of life, provide defendant's release on bond, and pay a reasonable
fee to his retained counsel, but are insufficient to pay for the
necessary services. In responding to requests for subsection (e)
services by a defendant represented by retained counsel, the court
should inquire into the fee arrangement between the retained attorney
and the defendant. If the court finds the fee arrangement unreasonable
in relation to fees customarily paid to qualified practitioners in
the community for services in criminal matters of similar duration
and complexity, or that it was made with a gross disregard of the
defendant's trial expenses, the court may order the attorney to pay
out of such fees all or such part of the costs and expenses as the
court may direct. The procedure outlined in paragraph 2.05 shall
apply to such persons who are financially able to pay some, but unable
to pay all, the costs of necessary services.
B. Persons who are eligible for representation under the Criminal
Justice Act, but who have elected to proceed pro se, may,
upon request, be authorized to obtain investigative, expert, and
other services in accordance with subsection (e) of the Criminal
Justice Act.
The court should authorize subsection (e) services for pro
se litigants and review and approve resulting claims in the
same manner as is its practice with respect to requests made by
Criminal Justice Act panel attorneys. However, in matters in which
appointment of counsel is discretionary pursuant to subsection
(a)(2) of the Act, the court should make a threshold determination
that the case is one in which the interests of justice would have
justified the furnishing of representation, prior to approving
the requested services for pro se litigants.
Although a federal defender organization may be requested to provide
administrative assistance to pro se litigants who wish to
arrange for subsection (e) services, the investigative, paralegal
or other services or resources of the organization should ordinarily
be employed only when the organization is appointed as counsel of
record, responsible for the conduct of the litigation.
3.02 Limitations.
A. With Prior Authorization. With prior authorization,
compensation for investigative, expert and other services is limited
to $1,600 per organization or individual, exclusive of reimbursement
for expenses reasonably occurred, per individual authorization to
perform said service, except with regard to capital cases. (See paragraph
6.03 for guidelines applicable to capital cases.) A separate authorization
should be obtained for each type of service for each person served,
and for each defendant served, and for each case. While the contractor
may be compensated separately for each defendant served, care should
be taken to ensure that duplicate charges are not being made for
the same services. If, pursuant to subsection (e) of the Act, such
services are rendered by members of an organization such as a corporation,
unincorporated association, or partnership (other than those created
pursuant to subsection (g) of the Act), in their capacities as members
of that organization, compensation shall be deemed to have been earned
by the organization and shall be paid to it only once, per defendant
served, in an amount not to exceed the statutory maximum of $1,600,
exclusive of reimbursement for expenses reasonably incurred. Payment
in excess of the $1,600 limit for services authorized prior to the
performance thereof may be made when certified by the United States
judge or United States magistrate judge and approved by the chief
judge of the circuit (or an active circuit judge to whom excess compensation
approval authority has been delegated) as being necessary to provide
fair compensation for services of an unusual character or duration.
If it can be anticipated that the compensation will exceed the statutory
maximum, advance approval should be obtained from the court and the
chief judge of the circuit (or the active circuit judge to whom excess
compensation approval authority has been delegated). See sample form,
Appendix C.
B. Without Prior Authorization. Subsection (e)(2)(A)
of the Act authorizes the obtaining of investigative, expert and
other services, without prior authorization but subject to subsequent
review, providing the cost of the services obtained does not exceed
$500 plus expenses reasonably incurred (but see paragraph 6.03 A
regarding obtaining investigative, expert, and other services in
capital cases). This $500 limit may be waived however (see subsection
(e)(2)(B) of the Act), if the presiding judge or United States magistrate
judge (if the services were rendered in a case disposed of entirely
before the United States magistrate judge) in the interest of justice,
finds that timely procurement of necessary services could not await
prior authorization.
3.03 Ex Parte Applications. Ex
parte applications for services other than counsel under subsection
(e) shall be heard in camera, and shall not be revealed
without the consent of the defendant. The application shall be placed
under seal until the final disposition of the case in the trial court,
subject to further order of the court. Maintaining the secrecy of
the application prevents the possibility that an open hearing may
cause a defendant to reveal his or her defense. Appointed counsel
shall not be required to submit evidence of a prior attempt to enter
into a stipulation with the United States Attorney as a prerequisite
to obtaining services under subsection (e). The court may encourage
counsel to enter into stipulations, in the interest of expedition
and economy, without, however, disclosing the contents or otherwise
compromising the secret nature of the ex parte application.
3.04 Claims for Services Other than Counsel. All
claims for services other than counsel, under subsection (e) of the
Act, should include the following: a statement as to the type of, dates
of, and time expended for, the services provided; an explanation of
the fee arrangement (i.e., hourly rate, per diem rate, etc.); an itemized
statement of all expenses for which reimbursement is claimed; and supporting
documentation, where practicable, for all expenses of lodgings and
subsistence, and for any expenses in excess of $50.
3.05 Forms for the Authorization and Payment
for Services Other than Counsel. Forms for the authorization
and payment for services other than counsel, together with instructions
for the execution and distribution thereof, are included in Appendix
A.
3.06 Interim Payments.
A. Non-Death Penalty Cases. Where it is considered
necessary and appropriate in a specific case, the presiding trial
judge may arrange for periodic or interim payments to an individual
whose services are obtained pursuant to subsection (e) of the Act.
Appendix F (pages F-1 through F-6) contains instructions on the procedures
for effecting interim payments to persons other than counsel, as
well as a sample memorandum order on this subject which provides
for two alternative payment methods. The payment options provided
in the order are designed to strike a balance between the interest
in relieving providers of subsection (e) services of financial hardships
in extended and complex cases, and the practical application of the
statutorily imposed responsibility of the chief judge of the circuit
to provide a meaningful review of claims for excess compensation.
Other interim payment arrangements which effectuate this balance
may be devised in consultation with the Office of Defender Services
of the Administrative Office of the United States Courts.
B. Death Penalty Cases. Presiding judicial officers
are urged to permit interim payment in death penalty cases. Because
the CJA compensation maximum of $1,600 for investigative, expert,
and other services does not apply in capital cases, different procedures
and memorandum orders must be used in those cases. (See paragraph
6.03 D.) These procedures and sample memorandum orders are also set
forth in Appendix F, beginning on pages F-7 and F-11.
3.07 Review of Vouchers. Absent
extraordinary circumstances, judges should act upon claims for compensation
for investigative, expert or other services within 30 days
of submission.
Part B. Policies Regarding Investigative,
Expert and Other Services
3.10 Investigators. When necessary
to an adequate representation as described above, the court may authorize,
pursuant to subsection (e) of the Act, the services of an
investigator.
3.11 Psychiatrists, Psychologists.
A. Type of Examinations. Chapter 313 of title
18, as amended by the Insanity Defense Reform Act of 1984 (Chapter
IV of the Comprehensive Crime Control Act of 1984), provides for court-directed psychiatric
or psychological examination of individuals in connection with the
various proceedings to determine mental condition which are authorized
under that chapter. The functions of these separate proceedings are
to determine: (1) the mental competency of a defendant to stand trial
(18 U.S.C. §4241); (2) insanity at the time of the offense (§4242);
(3) the mental condition of an acquitted person hospitalized following
a finding of not guilty only by reason of insanity (§4243); (4) the
present mental condition of a convicted defendant (§4244); (5) the
present mental condition of an imprisoned person who objects to transfer
to a treatment facility (§4245); and (6) the present mental condition
of a hospitalized person due for release (§4246).
In addition, mental condition examinations may be conducted for
purposes other than those specified in chapter 313, e.g., to aid
the defendant in preparing his defense.
B. Source of Payment. CJA funds are used to pay
for psychiatric and related services obtained in accordance with
subsection (e) of the CJA upon a determination that the services
are "necessary for an adequate defense." These are "defense" services,
where the defendant selects the expert and controls the disclosure
of the expert's report. It is important to note that psychiatrists
and related experts may be used in many circumstances in which payment
is made from a source other than the CJA appropriation.
In these situations the court or the government selects the expert
and persons other than the defendant also have access to the expert's
report. The Department of Justice (DOJ) generally pays for these "non-defense" services.
The chart on pages 8 and 9 of this chapter summarizes payment responsibility
for the various circumstances in which psychiatric and related services
are utilized.
C. Limitation of Amount. The limitations of $1,600
and $500 contained in paragraph 3.02 of this chapter apply to compensation
claims submitted by "defense" psychiatrists and related experts,
to be paid out of the CJA appropriation. [See subparagraph (E) below,
regarding "dual purpose" examinations.]
D. Procedures for Payment.
(l) CJA Appropriation. A CJA Form 21 (Authorization
and Voucher for Expert and Other Services) should be submitted
to the AO for all payments for "defense" services. In a death penalty
case, CJA Form 31, "Death Penalty Proceedings: Ex Parte Request
for Authorization and Voucher for Expert and Other Services" should
be used. The CJA Form 21 or Form 31 should clearly describe the
purpose of the expert's service. If separate vouchers are submitted
for examination and testimony, they should be cross-referenced
by voucher number.
(2) Department of Justice. Compensation claims
for psychiatric and related services to be paid for by the DOJ
should be referred to the U.S. Attorney or Assistant U.S. Attorney.
E. Dual Purpose Examinations. On occasion, a psychiatrist
or related expert will be asked to examine an individual for both
a "defense" purpose and a "non-defense" purpose. In these cases the
defense has waived the confidentiality of the "defense" portion of
the examination. In such dual purpose examinations, for the convenience
of the expert providing the service, the entire compensation claim
may be submitted on a CJA Form 21, or, in a death penalty proceeding,
CJA Form 31. The AO will pay the expert the total amount approved
and obtain reimbursement to the CJA appropriation from the DOJ for
one-half of the cost. As a result of the AO's need to seek reimbursement
from the DOJ, the CJA Form 21s and Form 31s for dual purpose examinations
must be accompanied by separate court orders which indicate:
(l) who requested the examination;
(2) the specific purpose(s) of the examination;
(3) to whom the examination is directed; and
(4) to whom copies of the report are to be given.
The limitation in subparagraph (C) above applies to 50% of the
claim for a dual purpose examination in which a portion of the examination
is for "defense" purposes.
There also may be "dual purpose" examinations wherein both portions
of the examination are chargeable to the same payment source; e.g.,
evaluation of competency to stand trial under 18 U.S.C. §4241 and
evaluation of sanity at the time of the offense under 18 U.S.C. §4242.
In this example, since the DOJ would be responsible for both portions
of the examination, the entire compensation claim should be submitted
to the U.S. Attorney or Assistant U.S. Attorney.
SUMMARY CHART
RESPONSIBILITY FOR PAYMENT OF PSYCHIATRIC AND RELATED EXPERT
SERVICES
| 1. To determine mental competency to
stand trial,
under 18 U.S.C. §4241 |
|
|
| a. Examination Costs |
|
Yes, regardless of which party requests, including
examination on
court's own motion |
| b. Testimony costs for examiner if called at
hearing |
|
Yes, regardless of which party
calls |
| c. Testimony costs for examiner if called at trial |
If witness appears on behalf
of defense |
If witness appears on behalf of
government |
| 2. To determine existence of insanity
at time of
offense, under §4242 |
|
|
| a. Examination Costs |
|
Yes |
| b. Testimony costs for examiner if called at trial |
|
Yes, regardless of which party
calls |
| 3. To determine existence of insanity
at time of
offense, under CJA subsection (e) |
|
|
| a. Examination costs |
Yes |
|
| b. Testimony costs for examiner if called at trial |
Yes |
|
| 4. To determine mental condition of
hospitalized person found not guilty only by reason of insanity,
under §4243 |
|
|
| a. Examination costs |
|
Yes |
| b. Testimony costs for examiner if called at
hearing |
|
Yes, regardless of which party calls |
| 5. To determine mental condition of
convicted person suffering from mental disease or defect,
under §4244 |
|
|
| a. Examination costs |
|
Yes |
| b. Testimony costs for examiner
if called at hearing |
|
Yes, regardless of which party calls |
| 6. To determine mental condition of
imprisoned person, under §4245 |
|
|
| a. Examination costs |
|
Yes, including costs of additional examiner selected
by imprisoned person in
accordance with §4247(b) |
| b. Testimony costs for examiner
if called at hearing |
|
Yes, regardless of which party calls, including
additional examiner selected by imprisoned person in accordance
with § 4247(b) |
| 7. To determine mental condition of
hospitalized person due for release,
under § 4246 |
|
|
| a. Examination costs |
|
Yes, including costs of additional examiner selected
by hospitalized person
in accordance with § 4247(b) |
| b. Testimony costs for examiner
if called at hearing |
|
Yes, regardless of which party calls, including
additional examiner selected by hospitalized person in accordance
with § 4247(b) |
| 8. Examination of a person in custody
as a material witness |
|
Yes, under all circumstances |
| 9. Examination and testimony costs for
expert witnesses not appointed
under §§ 4241, 4242, 4243, 4244,
4245, 4246 |
If requested by the
defense |
If requested by the government, or if
appointed as an independent expert on court's own motion under
Fed. R.
Evid. 706 |
3.12 Transcripts.
A. Authorization and Payment.
(1) For panel attorneys, the preferred method for payment of
transcripts is for the court reporter or reporting service to claim
compensation directly for transcripts authorized by the court on
a CJA Form 24, "Authorization and Voucher for Payment of Transcript." However,
if assigned counsel elects to pay for the court authorized transcript,
the attorney may seek reimbursement as an "out-of-pocket expense," and
should use the CJA Form 24 for this purpose. (See paragraph 2.27
of these Guidelines.) Regardless of which method is used, the limitations
of $1,600 and $500 mentioned in paragraph 3.02 of this chapter
and $7,500 mentioned in paragraph 6.03 B are inapplicable with
regard to the cost of transcripts. (For procedures regarding federal
defender organization transcript payments, see paragraph 4.03 A
of these Guidelines.)
(2) In order to obtain necessary parts of transcripts, or, if
required, the entire transcript, in a direct appeal in a case in
which counsel is assigned pursuant to the Criminal Justice Act,
neither the Act nor Section 753 (f) of title 28, United States
Code, as amended by Public Law 91-545, requires the signing of
a pauper's oath or certification by the Court that the appeal is
not frivolous.
B. Apportionment of Costs. Routine apportionment
of accelerated transcript costs among parties in
CJA cases is prohibited. The following resolution was adopted by
the Judicial Conference in March of 1980, and modified in September
of 1986:
That the furnishing of accelerated transcript services in criminal
proceedings should be discouraged; however, recognizing that there
are some circumstances in which such transcript services are necessary
and required by either the prosecution or the defense, or both,
accelerated transcript services may be provided.
That in those cases where accelerated transcript services are
provided, the party from whom the request or order emanates shall
pay for the original, and if the requesting or ordering party is
other than defense counsel appointed under the Criminal Justice
Act, the CJA counsel shall be entitled to a copy at the copy rate.
That the present practice, in some districts, of routinely apportioning
the total cost of accelerated transcript services equally among
the parties should be abandoned.
C. Commercial Duplication in Multi-Defendant Cases.
(1) In multi-defendant cases involving CJA defendants, no more
than one transcript should be purchased from the court reporter
on behalf of CJA defendants. One of the appointed counsel or the
clerk of court should arrange for the duplication, at commercially
competitive rates, of enough copies of the transcript for each
of the CJA defendants for whom a transcript has been approved.
The cost of such duplication will be charged to the CJA appropriation.
This policy would not preclude the furnishing of duplication services
by the court reporter at the commercially competitive rate.
(2) In individual cases involving requests for accelerated transcripts,
the court may grant an exception to the policy set forth in part
(1) of this subparagraph based upon a finding that application
of the policy will unreasonably impede the delivery of accelerated
transcripts to persons proceeding under the CJA. Such finding should
be reflected on the transcript voucher.
D. Standards for Transcripts of Other than Federal Court
Proceedings. In negotiating agreements and contracts with
regard to the provision of transcripts of other than federal court
proceedings, including, for example, transcription or translation
of wiretap recordings, it is recommended that the standards with
respect to the size and format of a page should be the same as
those used for transcripts of federal court proceedings, which
are contained in the Court Reporters' Manual, Vol. VI, Guide
to Judiciary Policies and Procedures, Chapter
XVIII.
3.13 Fact Witnesses and Depositions
A. Generally speaking, fees and expenses of fact witnesses for
defendants proceeding under the CJA are paid by the Department of
Justice. Fed. R. Crim. P., Rule 17(b); 28 U.S.C. § 1825. Section
1825 of Title 28, United States Code, specifically provides for the
payment of witness fees by the Department of Justice in all federal
criminal proceedings, and in proceedings for a writ of habeas corpus
or in proceedings under section 2255 of that title upon certification
of a federal public defender or assistant federal public defender,
or clerk of court upon the affidavit of other counsel appointed under
the Criminal Justice Act. If advance witness travel funds are required,
the court should issue the subpoena order, so stating, to authorize
the travel advance by the marshal. These expenses will not be paid
from CJA funds.
B. Depositions are now covered by the Federal Rules of Criminal
Procedure, Rule 15, rather than 18 U.S.C. § 3503. Expenses incurred
in the taking of fact witness depositions (notarial fees, interpreters,
transcripts, etc.) are paid by the Department of Justice, regardless
of which party requested the deposition. The costs of attendance
of fact witnesses at the deposition are paid by the Department of
Justice under Rule 17 (b); of expert witnesses for the defense, under
the Criminal Justice Act. Expenses incident to attendance of counsel
and the defendant at the deposition are paid by the Department of
Justice if the Government is the requesting party; CJA if the depositions
are at the instance of the defense. However, it should be noted that
the presence of the defendant is not essential to defense depositions
since the confrontation clause only requires the defendant's presence
if the depositions are intended to be used against him.
C. In habeas corpus and 28 U.S.C. § 2255 cases, the Court may order
the state or the Government to pay the "expenses of travel and subsistence
and fees of counsel" to attend the taking of a deposition at the
request of the state or Government. Rules governing Sections 2254
and 2255 cases in U.S. District Courts, Rule 6.
3.14 Guardian Ad Litem.
A. In Proceedings Involving Juveniles. A guardian
ad litem appointed under 18 U.S.C. § 5034 is not eligible for compensation
under the Criminal Justice Act or any other authority. Any person
who is appointed as both counsel and guardian ad litem in one case
under § 5034 should prorate time spent fulfilling the duties of these
two offices. Only time spent as counsel on a case is compensable
and should be reflected on the CJA claim.
B. In Prisoner Transfer Proceedings. A guardian
ad litem appointed in proceedings to verify consent of a minor or
incompetent prisoner to transfer from the United States to a foreign
country is eligible for compensation under the Criminal Justice Act
pursuant to 18 U.S.C. § 4109(b). (See paragraph 2.22 B(2)(iv) regarding
compensation limits and Regulations for the Appointment of Counsel
Pursuant to a Prisoner Transfer Treaty, which appears at Section
B of this Volume.)
3.15 Commercial Computer-Assisted Legal
Research Services. The court may authorize counsel to obtain
computer-assisted legal research services, where the research is
performed by employees of a commercial legal research firm or organization
rather than by appointed counsel, provided that the total amount
charged for computer-assisted legal research services is reasonable.
Requests by counsel for authority to obtain such computer-assisted
legal research services should include the following:
A. a brief explanation of the need for the research services; and
B. an estimate of the charges.
Claims for compensation for such services should be submitted on
CJA Form 21, "Authorization and Voucher for Expert and Other Services",
or, in a death penalty proceeding, CJA Form 31, "Death Penalty Proceeding: Ex
Parte Request for Authorization and Voucher for Expert and Other
Services". (See paragraph 2.27B concerning reimbursement for the cost
of direct use, by appointed counsel, of computer-assisted legal research
services.)
3.16 Other Services and Computer Hardware
and Software. In addition to investigators, psychiatrists,
psychologists, and reporters, services other than counsel may include
but not necessarily be limited to, interpreters, computer systems
and automation litigation support personnel and experts; paralegals
and legal assistants, including law students; neurologists; and laboratory
experts in the areas of ballistics, fingerprinting,
and handwriting.
The Administrative Office is authorized to pay out of Criminal Justice
Act funds expenses of eligible defendants for stenographic and notarial
expenses required to perpetuate and authenticate testimony of expert
witnesses for such defendants.
Criminal Justice Act attorneys are expected to use their own office
resources, including secretarial help, for work on CJA cases. (See
paragraph 2.28 A.) However, unusual or extraordinary expenses of these
types may be considered "other services necessary for an adequate defense" and
may be paid from CJA funds under subsection (e) of the Act. In determining
whether the expense is unusual or extraordinary, consideration should
be given to whether the circumstances from which the need arose would
normally result in an additional charge to a fee paying client over
and above that charged for overhead expenses. (See Decision of the
Comptroller General, B-139703, dated February 28, 1974, 53 Comp. Gen.
638.)
Providing an adequate defense case may require CJA panel attorneys
to utilize computer hardware or software not typically available in
a law office. In such cases, following the standards in the preceding
paragraph, counsel may apply to the court for authorization of CJA
funds for the acquisition of such property. Before seeking court approval
for any computer hardware or software with a cost exceeding $500, or
for the utilization of computer systems or automation litigation support
personnel or experts with an expected combined cost exceeding $10,000,
appointed counsel must consult the Office of Defender Services for
guidance and inform the court in writing of the Office of Defender
Service's advice and recommendation regarding counsel's proposed expenditure.
(A model order "Authorizing the Acquisition of Computer [Hardware and/or
Software] under the Criminal Justice Act" is included in Appendix C.)
The acquisition of the computer hardware and/or software, with CJA
funds, shall be made by a federal defender organization designated
by the Office of Defender Services, or by the Office of Defender Services
itself, and shall remain the property of the United States. While computer
hardware or software is being used by counsel, information contained
on the hardware or software may be confidential work product and may
also be protected by attorney-client privilege. Upon the completion
of the case, the computer hardware and software must be returned in
good condition, after all case-related materials have been removed,
to a federal defender organization designated by the Office of Defender
Services. Unless otherwise required by the court or law, counsel should
retain copies, electronic or otherwise, of the case-related materials
for the client's file.
For services of paralegals and legal assistants, and other non-secretarial
professional support personnel employed by appointed counsel, the court
shall determine a reasonable hourly compensation rate that shall not
exceed the lesser of the rate paid to counsel under the CJA or the
rate typically charged by counsel to a fee-paying client for such services.
Authorizing compensation at such rates should result in greater efficiency
and lower costs for the CJA program than would occur if counsel performed
and charged for these services.
3.17 Reimbursement of Expenses. In
determining the reasonableness of expenses of persons furnishing investigative,
expert or other services, claimants and the court should be guided
by the provisions of these Guidelines regarding reimbursement of expenses
of counsel (see paragraphs 2.27 and 2.28). Gross receipts or other
taxes levied on fees for expert services rendered pursuant to the CJA
are not reimbursable
expenses.
Government travel rates at substantial reductions from ordinary commercial
rates may be available from common carriers for travel authorized by
the court in connection with representation under the CJA. To obtain
such rates, investigators and other service providers must contact
the clerk of court and obtain prior approval from the presiding judicial
officer.
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