Funds for experts and other resources lose much of their meaning if obtained at the expense of confidentiality. Fortunately, our Constitution, caselaw, and statutes increasingly recognize the need for requests for funds by indigents to be confidential without the prosecutor, public or media present. Without this confidential process, indigents are penalized by their poverty into prematurely revealing their defense strategies. With this confidential process, the attorney/client privilege is insured.

A request for funds for experts or other resources must contain enough information to meet the threshold showing which is necessary to justify the fourteenth amendment right to the defense resources. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 1091, 1096, 84 L.Ed.2d 53 (1985). Almost necessarily, that threshold showing will contain privileged information about the defense which the prosecutor is either never entitled to discover or not entitled to discover at this early juncture of the proceedings.

A non-indigent criminal defendant selects and hires experts, investigators, etc. without knowledge of the prosecutor or court. In the civil arena, information about the retention of an expert by a party is not discoverable. See, e.g., Newsome v. Lowe, 699 S.W.2d 748 (Ky.App. 1985). In order to obtain public funds for resources, indigents rightly have to present information to a neutral judge who decides whether the requested assistance is reasonably necessary. But revealing that confidential information to the prosecution in a way that a nonindigent criminal defendant does not have to reveal it violates equal protection.

Ex parte proceedings increase the information available to the judge and increase the reliability of his decision. In assessing the request for public funds, the judge is entitled to the thoughts, reasoning and strategy of the defense, including matters within the attorney/client privilege, but the prosecutor is not entitled to that privileged information. Therefore, an ex parte proceeding has the pragmatic effect of allowing judges to obtain more information from the defense for the judge to make a decision since the proceeding is confidential. When a judge has more information, his decision is likely to be more reliable.

With rare exception, criminal defendants are not required to reveal their defense prior to trial. While KRS Chapter 31 provisions do not explicitly recognize the right to make requests for funds for resources ex parte, KRS 500.070(2) implicitly recognizes such proceedings as it states, "No court can require notice of a defense prior to trial time."

The necessary implication of this statutory provision is that a defendant cannot be required to reveal his defense by having to make his threshold showing in front of the prosecutor, public or media.

RCr 1.08, which addresses the service of motions, recognizes the ex parte nature of some motions by stating, "...every written motion other than one that may be heard ex parte...must be served upon each party."

Ake, supra, makes the statement, "when the defendant is able to make an ex parte threshold showing to the trial court...." "The intention of the majority of the Ake Court that [the threshold showing] hearings be held ex parte is manifest...." McGregor v. State, 733 P.2d 416 (Okla.Ct.Crim. App. 1987).

Ake has been relied on by other courts to find that proceeding ex parte is constitutionally required. An "indigent defendant who requests that evidence supporting his motion for expert psychiatric assistance be presented in an ex parte hearing is constitutionally entitled to have such a hearing...." State v. Ballard, 428 S.E.2d 178, 179 (N.C. 1993). Preventing a defendant from proceeding ex parte improperly forces him to "jeopardize his privilege against self-incrimination and his right to the effective assistance of counsel, guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution." Id.

"Only in the relative freedom of a non-adversarial atmosphere can the defense drop inhibitions regarding its strategies and put before the trial court all available evidence of a need for psychiatric assistance. Only in such an atmosphere can the defendant's privilege against self-incrimination and his right to the effective assistance of counsel not be subject to potential violation by the presence of the State." Id. at 183.

While no published Kentucky appellate level decision has held it reversible error to fail to allow an indigent criminal defendant to make his request for funds ex parte, the Kentucky Supreme Court has held in an unpublished opinion that the ex parte process is required in a highly analogous situation.

In the extraordinary writ case of Jacobs v. Caudill, 94-SC-677-OA (Ky., Sept. 2, 1994) (unpublished) the Kentucky Supreme Court unanimously held that the hearing to "determine petitioner's competency to voluntarily and intelligently waive any defenses or otherwise direct his defense...." had to be conducted in accord with the 5th and 6th amendments. "To avoid any possible violation of the petitioner's constitutionally protected rights, it is mandated that when issues arise in said hearing involving petitioner's attorney-client privilege, right against self-incrimination or his right to prepare and present a defense, said proceedings shall be conducted by the trial court in camera and ex parte, but on the record."

No competent criminal defense attorney who practices his cases ethically would ever reveal any defense information prematurely, absent some strategic advantage.

In McCracken County Fiscal Court v. Graves, 885 S.W.2d 307 (Ky. 1994) the Kentucky Supreme Court set out a very helpful principle: Indigents are entitled to be represented to the same extent as monied defendants.

The Court said, "We also take this opportunity to offer a bit of guidance to trial courts for the purpose of future determinations of what constitutes a reasonable and necessary indigent expense. In KRS 31.110(1)(a), it is stated that a needy defendant is entitled: To be represented by an attorney to the same extent as a person having his own counsel is so entitled. While this certainly cannot mean that an indigent defendant is entitled to have any and all defense-related services, scientific techniques, etc., that a defendant with unlimited resources could employ, we think it is a useful standard as a starting point. At a minimum, a service or facility the use of which is provided for by statute should be considered by a trial court, as a matter of law, to be 'reasonable and necessary.'" Id. at 313.

There "is no need for an adversarial proceeding, that to allow participation, or even presence, by the State would thwart the Supreme Court's attempt to place indigent defendants, as nearly as possible, on a level of equality with nonindigent defendants." McGregor, supra, at 416.

In other contexts, the Kentucky Supreme Court has recognized the necessity for courts to function ex parte. In West v. Commonwealth, 887 S.W.2d 338 (Ky. 1994) the Court held that a trial judge has jurisdiction to enter an order pursuant to RCr 2.14(2) after an ex parte hearing appointing public defender to an indigent being questioned by police and ordering that the questioning be stopped so the defendant could consult with the attorney. "By virtue of its general jurisdiction, the circuit court frequently acts ex parte in criminal matters. A clear example of such an act is in the issuance of search warrants. RCr 13.10." Id. at 341 n.1.

It is not reversible error for a trial court to conduct an ex parte hearing on the issue of funds for experts. In Baze v. Commonwealth, 953 S.W.2d 914, 923 (Ky. 1997) the Court stated, "On cross-appeal, the Commonwealth argues that the trial judge committed error in allowing the defense counsel to proceed ex parte in requesting funds for experts. Although we believe it is prudent to discourage ex parte proceedings in a trial of this importance, we do not find reversible error in this case."

Proceeding ex parte is commonly recognized as appropriate in other settings. Eleven examples of Kentucky statutes, rules, and caselaw which permit proceeding ex parte follow:

Since 1964, the Criminal Justice Act, 18 U.S.C. 3006A(e)(1), has provided that requests by indigents for funds for resources be done ex parte if the defendant wants that confidential process.

That statute states, "Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application."

The federal Anti-Drug Abuse Act's provisions involving federal capital prosecutions provide for an ex parte hearing for funding of resources when there is a showing of a need for confidentiality: "No ex parte proceeding, communication, or request may be considered pursuant to this section unless a proper showing is made concerning the need for confidentiality. Any such proceeding, communication, or request shall be transcribed and made part of the record available for appellate review." 21 U.S.C. §848(q)(9).

Federal Rule of Criminal Procedure 17(b) allows applications for subpoenas by defendants unable to pay for their service be done ex parte to the court." See Holden v. United States, 393 F.2d 276 (1st Cir. 1968). That rule states, "Defendants Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense."

An indigent defendant is entitled to ask for funds for expert help ex parte to avoid prejudicing the defendant by "forcing him to reveal his theory of the case in the presence of the district attorney." Brooks v. State, 385 S.E.2d 81 (Ga. 1989).

The "use of ex parte hearings...is a well recognized technique available to any party" who is faced with the dilemma of being "forced to reveal secrets to the trial court and prosecution" in order to support" a motion. State v. Smart, 299 S.E.2d 686, 688 (S.C. 1982).

"Where counsel for defendant objects to the presence of Government counsel at such a hearing, the failure to hold an ex parte hearing is prejudicial error." Mason v. Arizona, 504 F.2d 1345, 1352 n.7 (9th Cir. 1974). "The manifest purpose of requiring that the inquiry be ex parte is to insure that the defendant will not have to make a premature disclosure of his case." Marshall v. United States, 423 F.2d 1315 (10th Cir. 1970). See also United States v. Sutton, 464 F.2d 552 (5th Cir. 1972).

Under KRS 31.185 fiscal courts, except for Jefferson County, now pay a fixed sum into a statewide indigent resources fund with the state paying anything above this fixed amount.

When the county fiscal courts had sole responsibility for these funds, the county clearly had standing to challenge the court's determination. After July 15, 1994, the effective date of the amendment to KRS 31.185, the only entity likely to have standing to challenge the authorization of funds or their amount is the Finance and Administration Cabinet since county fiscal courts must pay a fixed amount of money into the statewide special fund, and only the state has an open financial obligation if the fund is exhausted.

The ultimate funding authority, now the Commonwealth of Kentucky through the Finance and Administration Cabinet, is not legally entitled to be present at any ex parte hearing. SeeBoyle County Fiscal Court v. Shewmaker, 666 S.W.2d 759, 762-63 (Ky.App. 1984).

The presence of counsel for the funding authority "would create unnecessary conflicts of interest; in any event, county counsel's presence cannot be permitted because such petitions are entitled to be confidential." Corenevsky v. Superior Court, 204 Cal.Rptr. 165, 172 (Cal. 1984) (In Bank). The funding authority's right to challenge the awarding or amount of funds is available after entry of the order.

For some time, the Fayette County local rule, Rule 8B, requires ex parte hearings when indigents requested funds for an expert or other resource.

Nationally, the trend is to permit funds requests to be made ex parte. "Six states allow for the procedure via legislation, these states being California, Kansas, Minnesota, Nevada, New York, and Tennessee. Nine other states have judicially allowed for ex parte hearings on these requests: Arkansas, Florida, Georgia, Hawaii, Indiana, Michigan, North Carolina, Oklahoma, and Washington." State v. Touchet, 642 So.2d 1213, 1218 (La. 1994). Requesting funds for resources to insure a competent defense must be ex parte to make sure that obtaining appropriate funds is done without sacrificing confidential information. Indigents are entitled to the same confidential aid that monied defendants do not even have to seek. Poverty should not be a penalty.

Edward C. Monahan, Deputy Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
Tel: (502) 564-8006
Fax: (502) 564-7890

Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 1091, 1096, 84 L.Ed.2d 53 (1985)
Newsome v. Lowe, 699 S.W.2d 748 (Ky.App. 1985)
McGregor v. State, 733 P.2d 416 (Okla.Ct. Crim.App. 1987)
State v. Ballard, 428 S.E.2d 178, 179 (N.C. 1993)
Jacobs v. Caudill, 94-SC-677-OA (Ky., Sept. 2, 1994)
McCracken County Fiscal Court v. Graves, 885 S.W.2d 307 (Ky. 1994)
West v. Commonwealth, 887 S.W.2d 338 (Ky. 1994)
Baze v. Commonwealth, 953 S.W.2d 914 (Ky. 1997)
Holden v. United States, 393 F.2d 276 (1st Cir. 1968)
Brooks v. State, 385 S.E.2d 81 (Ga. 1989)
State v. Smart, 299 S.E.2d 686, 688 (S.C. 1982)
Mason v. Arizona, 504 F.2d 1345, 1352 n.7 (9th Cir. 1974)
Marshall v. United States, 423 F.2d 1315 (10th Cir. 1970)
United States v. Sutton, 464 F.2d 552 (5th Cir. 1972)
Boyle County Fiscal Court v. Shewmaker, 666 S.W.2d 759, 762-63 (Ky.App. 1984)
Corenevsky v. Superior Court, 204 Cal.Rptr. 165, 172 (Cal. 1984)
State v. Touchet, 642 So.2d 1213, 1218 (La. 1994)

The Advocate, Vol. 20, No. 2  (March 1998)
 

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