The Journal of The DuPage County Bar Association

Back Issues > Vol. 16 (2003-04)

The Pro Bono Attorney and an Indigent Criminal Defendant’s Right to State-Subsidized Experts
By Nicholas L. Lopuszynski, in conjunction with Honorable Anne B. Jorgensen, 18th Judicial Circuit, Felony Division

With the globalization of economy and business, the innovation of advanced communication tools, and the advancement of computer-based technologies, the use of expert testimony in many criminal and civil cases is growing. This is observed when one examines the technology used in many modern-day cases ranging from computer-animated murder-scene recreations to global culture and language translations. When should a state fund an indigent criminal’s expert witness? How and when may a non-court appointed private attorney collect expert witness fees when representing an indigent defendant pro bono? These issues are determined on a case-to-case basis. This article will present to Illinois criminal practitioners a general analysis regarding the history and factors Illinois courts consider in determining how much expert funding an indigent defendant is entitled.

I. An Indigent Defendant’s Right to Expert Witness Testimony Is Entrenched within the United States Constitution

In Griffin v. Illinois,1 Justice Black noted "there can be no equal justice where the kind of trial a man gets depends on the amount of money he has."2 In the capital case of Ake v. Oklahoma3, the United States Supreme Court held that the Constitution requires a State provide access to a psychiatrist’s expert assistance if the defendant cannot otherwise afford one once an indigent defendant makes a showing that his sanity at the time of the offense is a significant factor at trial.4

The Court examined three factors a trial court should consider: (1) the private interest that will be affected by the State’s actions; (2) the State’s interest that will be affected; and (3) the probable value of additional or substitute safeguards that are sought and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.5 The Court explained that it is fundamentally unfair, in a criminal trial, for the State to proceed against an indigent defendant without making certain he/she has access to raw materials integral to an effective defense.6 Yet the Supreme Court did not establish that the State must purchase all assistance that a wealthier defendant may afford, it only held that fundamental fairness requires "an adequate opportunity to present claims fairly within the adversary system."7

An indigent defendant’s right to state-funded expert assistance is embedded in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Sixth Amendment’s "guaranteed assistance of ‘effective counsel.’"8

Justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake."9

II. In Capital Cases, an Indigent’s Right to State-Funded Experts is Codified in Illinois.

The Illinois Legislature enacted a statute dealing directly with an indigent’s right to expert witnesses in capital cases.10 725 Ill. Comp. Stat. 5/113-3(d) provides,

"In capital cases . . . if the court determines that the defendant is indigent the court may, upon the filing with the court of a verified statement of services rendered, order the county Treasurer of the county of trial to pay necessary expert witnesses for defendant reasonable compensation stated in the order not to exceed $250 for each defendant."11

This statute grants an indigent defendant the right to receive State funds, in a capital case, in order to procure expert witnesses impartial to the type of expertise needed. However, courts require that a defendant make specific showings of fact before it will release these funds, including: (1) an explanation to the court of the need for the expert and the relevancy of the expert’s testimony; (2) an identification of the expert whom he wishes to employ; (3) an estimation of the fees involved; and (4) the establishment of the defendant’s indigence.12

Additionally, the Illinois Supreme Court found the statute’s $250 value is not the upper limit. Courts possess a limited power to exceed the $250 limit the statute sets forth.13 The limitation is "not a rigid upper boundary but is a general caution to trial courts that expert fees in excess of that amount are frequently not reasonably required to establish points of necessity to a client’s defense and as a warning that any excess which his requested should be scrutinized for abuse with special care."14 Furthermore "trial courts should, where feasible, require appointed attorneys to petition the court for any amount anticipated to be in excess of $250 before they spend it, and attorneys who spend any excess which the court does not authorize should run the substantial risk of not receiving compensation for it."15 It is always within the trial court’s discretion whether to fund an indigent defendant’s expert witness costs when the witness is not constitutionally required at a capital sentence hearing.16 On appeal, the trial court’s decision is only reviewed for an abuse of discretion.17

III. The Illinois Supreme Court Recognizes State-Funded Experts in Non-Capital Cases

"The Fourteenth Amendment requires due process of law for the deprival of ‘liberty’ just as for deprival of ‘life,’ and there cannot constitutionally be a difference in the quality of the process based merely upon a supposed difference in the sanction involved."18

Even before the United States Supreme Court decided Ake v. Oklahoma, the Illinois Supreme Court established that courts have a duty to fund an indigent defendant’s expert witnesses in both capital and non-capital cases.19 In People v. Watson, the Court held that an indigent defendant, accused of attempted forgery, was entitled to reasonable fees for the purpose of hiring an expert document examiner.20 The defendant, in Watson, was arrested, indicted, and convicted for attempting to commit forgery.21 On appeal, the indigent defendant argued that the trial court deprived him of due process when it refused to provide funds to obtain an expert document examiner.22 The defendant established that his signature was a critical issue to the case and therefore the expert document examiner was necessary.23 The State, on the other hand, argued that no statutory authority existed for appointing a state-funded expert witness in a non-capital case.24

The Illinois Supreme Court examined Article Nine of the Illinois Constitution and Article Six of the United States Constitution finding that a defendant has a right to compel the attendance of a witness on his behalf.25 However, the Court went further noting, "[T]here is a distinction between the right to call witnesses and the right to have these witnesses paid for by the government, but in certain instances involving indigents, the lack of funds with which to pay the witness will often preclude him from calling that witness and occasionally prevent him from offering a defense."26 The Court examined Illinois legislation27 holding, "[I]n certain instances, this policy should be extended to non-capital cases. The constitutional provisions for compelling the attendance of witnesses make no distinction between capital and non-capital cases and neither should the safeguards for a fair trial."28 Finally, the Court challenged the Illinois Legislature to expand the Illinois statute29 to cover both capital and non-capital cases.30

IV. Factors Illinois Courts Consider before Granting Expert Funds in Non-Capital Cases: An Examination of Illinois Case Law

Although Illinois courts have extended the indigent defendant’s right to expert witness fees from capital to non-capital criminal cases,31 these courts have not extended this right from criminal cases into the realm of civil case law.32 Moreover, courts are stringent in funding expert witnesses in non-capital cases and require a specific and detailed showing before funds are released, including: (1) the expert is "crucial" to the defendant’s case; (2) the defendant is indigent; (3) the request is timely; and (4) the funds requested are reasonable.

A. The expert must be “crucial”

An indigent defendant must show that his/her expert witness is "crucial" to his/her defense.33 In McCoy, the First District denied the defendant’s expert witness fees because the defendant did not adequately explain how the expert testimony was crucial to his defense.34 The defendant was convicted of murder but claimed he was entitled to an expert psychiatrist specializing in the effects of alcohol because "an expert was necessary to [the defendant’s] ‘possible’ affirmative defense of voluntary intoxication.35 The appellate court quoted the Illinois Supreme Court stating, "As a matter of Illinois constitutional jurisprudence, the protections are triggered when the expertise sought goes ‘to the heart of the defense.’ The touchstone, however, is not with what is useful, helpful, valuable, or even important to the defense effort but what is ‘crucial’ to it."36 The court concluded that exploring the "possibility" of using an expert witness without offering "pre-trial proof establishing a factual need for the expert testimony" was not enough to invoke the state’s funding of an expert witness.37

On the other hand, the Illinois Supreme Court held that a handwriting expert was necessary to establish an affirmative defense when an indigent defendant was charged with attempted forgery and delivery of a traveler’s check.38 In Watson, the defendant was arrested and charged with forging the signature on a stolen traveler’s check.39 The defendant moved the court for a handwriting expert to compare the signature on the defendant’s allegedly forged traveler’s check to that on another stolen traveler’s check, which was signed and cashed after the defendant was in custody.40 The trial court denied the motion but the appellate court reversed stating, under these facts "a handwriting expert could give a professional opinion as to whether the defendant signed the check he is accused of attempting to deliver . . .. If the [handwriting expert] determines that defendant could not have signed it, then the jury could be permitted to draw the conclusion that the defendant is innocent."41

B. The defendant must be indigent

The defendant must show that he/she is indeed indigent.42 In McCoy, the defendant was denied state-funding for an expert psychiatrist to examine his voluntary intoxication defense when he did not file an affidavit of indigence and the facts failed to support such a finding.43 Moreover, in People v. Winfrey, the Second District denied the defendant state-funding for an expert chemist to compare seminal fluids found on an alleged rape victim to his own.44 The appellate court reasoned that the defendant did not make a showing he was indigent. The defendant only mentioned his financial status by stating on record that the defendant’s counsel was paid for by his parents. Moreover, the defendant’s parents indicated they would pay for an expert witness but failed to do so.45 The court held that because "the defendant made no offer of proof of his alleged indigence…and, trial counsel [was] privately retained…[t]he record itself would support the opposite conclusion…that the defendant was not indigent."46

C. The request for funding should be timely

An indigent defendant should request the court for expert funds in a timely manner. Illinois courts have held that moving for expert funds is untimely when done on the day of trial, after a jury has been drawn but before the trial itself has commenced.47 Furthermore, in People v. Clankie, the Second District held that a motion made seven days prior to trial was untimely.48 In Clankie, the defendant had notice two months prior to trial that a handwriting expert would be necessary.49 Although the defendant filed his motion seven days in advance of trial, he did not request a hearing on that motion until the beginning of trial.50 At that hearing, the defendant did not argue the merits of the motion, and only renewed his request for an expert handwriting witness on the second day of trial. This request was untimely.51

D. Submission of specific names, qualifications, and expenses is not necessary

Although Illinois courts required an indigent defendant to submit the names, qualifications, and expenses of suggested experts for the court’s approval,52 today the Illinois Supreme Court recommends a different proceeding.53 In Kinion, the Illinois Supreme Court held that the best practice, where feasible, is "to require appointed attorneys to petition the trial court for any amount anticipated to be in excess of $250 before they spend it, and that attorneys who spend any excess which the court does not authorize should run the substantial risk of not receiving compensation for it."54 The Court stated "trial courts are fully capable of discerning the objective reasonableness of particular requests by considering the totality of the circumstances rather than a listing of required information."55 This recommended course of action applies to both capital and non-capital cases alike.56

Moreover, some courts allow reasonable funding for expert witness fees even if an indigent defendant has not moved for authorization.57 In Evans, the First District held that even if the defendant did not move for expert witness fees in advance of trial, that it should "not be a ground for an outright denial of the fees sought … [because] … ‘the best’ should not become the enemy of the good."58 The court explained that "an elevation of form over substance"59 is not the path to take in [certain] situation(s) and perhaps "a trial court may be able to more accurately analyze the reasonableness of a given fee from a hindsight perspective."60

E. Expert funds must be reasonable

Once an indigent defendant makes the necessary showings establishing a need for state-funded expert witnesses, the issue becomes how much the state should contribute. Illinois courts hold that a trial court is required to donate a "reasonable" amount to an indigent defendant’s expert witness.61 The Fourth District defined "reasonable costs" in People v. Vines holding, a court may award additional funds over the statutory limit62 of $250 when "it is shown that the testimony [of an expert witness] is necessary to prove a crucial issue and that the defendant will be prejudiced if the testimony is not obtained."63

F. Some limitations on fund availability

"Common sense dictates that the right of indigents to funds for expert testimony is not unlimited."64 There are limitations to how much funding a court will grant to an indigent defendant. First, if an expert already being used can present information that a defendant wants another expert to present, courts may hold the request for the latter expert unreasonable.65 Second, many courts have held that "an indigent defendant is not entitled to the expert of his particular choice, but is entitled to a ‘competent’ expert in the field of expertise that has been found necessary to the defense."66 Finally, the trial court may appoint an expert to the defendant. This is determined by considering factors including: (1) the number of experts available; (2) what the defendant expects the expert to prove; (3) how the defendant expects the expert to aid in his defense; (4) the defendant’s choice of expert; and (5) the costs of the expert.67

V. Illinois Courts Should Afford Indigent Defendants with Private Pro Bono Counsel the Same Rights as Indigent Defendants with Court-Appointed Counsel

Although the Illinois Supreme Court has not expressly ruled on whether indigent defendants using court-appointed counsel and indigent defendants using privately retained counsel should be treated the same when determining the amount funded by the state for expert witnesses, some courts have held both should be treated equally.

To begin, in People v. Winfrey, the Second District held that a paid private attorney was not entitled to expert witness funding because of the fact that the defendant posted trial and appellate bond. The defendant’s bond payment was evidence that he was not indigent where no other factual showing was presented.68 The court stated "[t]he defendant made no offer of proof of his alleged indigence and, indeed, trial counsel, privately, retained, represented that his parents had agreed to pay the expenses of his defense. The record itself would support the opposite conclusion…that the defendant was not indigent."69 In People v. McCoy, the trial court indicated that when defense counsel requested funds for an expert psychologist, it was in a dilemma because the defendant was represented by private counsel.70

On the other hand, the First District granted an indigent defendant’s private law firm expert witness fees when it represented the defendant pro bono.71 In Evans, the defendant was arrested and convicted of murdering her husband after he regularly subjected her to severe physical and mental abuse.72 The defendant moved the trial court for the payment of her expert witness’s fees that totaled $8,250.73 The trial court denied payment of the fees. The First District held that the indigent defendant’s private counsel should have received payment for its expert witness fees.74 The court reasoned that in its amended motion, the defendant established that the expert was crucial to his defense of battered women’s syndrome, the defendant was indigent, and that she was unable to pay for her fees. The defendant attached an affidavit attesting to her indigence.75 With these showings, "there was ample support to conclude that the defendant sufficiently demonstrated her entitlement to expert assistance funding."76 The appellate court commented, "Although a private law firm represented her, that firm apparently provided its services on a pro bono basis."77

More support is found in Tran v. Superior Court, where a California Court of Appeals recently summarized this issue.78 In Tran, a capital murder case, a private attorney represented an indigent defendant. The defendant’s mother paid the attorney’s fee while the attorney agreed to seek funds from the superior court for expert and investigative services.79 The attorney represented to the court: (1) the defendant’s indigence; (2) the nature of the expert services needed; (3) why they were necessary; and (4) why the amount requested for them was reasonable.80 The superior court denied the funding after determining that the defendant had retained the private attorney and therefore, he should be able to afford the experts’ fees. The appellate court reversed stating:

The test of entitlement to county assistance in defense preparation must be indigence. A test based upon the status of defense counsel would be constitutionally infirm. If a criminal defendant requires the services of investigators or scientific or medical experts to assist him in preparation of his defense, that assistance must be provided. Whether it is paid for by the government or by the defendant depends solely on the defendant’s economic status.81

The court stressed that its holding was limited because it did "not want to discourage trial courts from conserving the public fisc as long as the rights of the defendant are protected."82 However, if a private attorney states that he/she cannot pay for expert witness fees for his/her indigent defendant and could be forced to withdraw from the case if the trial court forces him/her to fund the experts, this would "impinge on the right to counsel of [the defendant’s] choice."83

After establishing all necessary support for an indignant defendant to receive expert witness fees, these cases promote the proposal that courts are and should be willing to grant expert witness fees to indigent defendant’s represented by private attorneys pro bono in Illinois.

VI. Conclusion

When representing an indigent defendant pro bono in a non-capital case, a private practitioner should be entitled to receive expert witness fees needed for the effective defense of his/her client. In order to receive these funds, a pro bono attorney should show: (1) in a timely manner, (2) either factually or by affidavit, their client is indeed indigent and (3) that the expert witness is crucial to his/her client’s effective defense; (4) no other expert witness can give information that this exact expert witness can provide; (5) that a denial of this expert witness’s fees will result in prejudice to his/her client; and (6) that the fees requested are reasonable.

Upon this showing, a trial court should provide an indigent defendant represented by a pro bono attorney the same financial access for state-funded expert witness fees as the indigent defendant represented by a court appointed attorney. With the advances in technology and the increased costs of litigation, allowing all indigent defendants the right to expert witness fees, in certain circumstances and upon the requisite showing, promotes justice and fairness in a manner blind to one’s net worth and advances the adversarial spirit of our American legal system.

1 Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585 (1956).

2 See, e.g., John West, Expert Services and the Indigent Criminal Defendant: The Constitutional Mandate of Ake v. Oklahoma, 84 Mich. L. Rev. 1326, 1327 (1986) (quoting Justice Black from Griffin v. Illinois, 351 U.S. 12 (1956)).

3 Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985).

4 Id. at 74.

5 Id. at 69.

6 Id. at 77.

7 Id. at 77.

8 West, supra note 2, at 1337.

9 Id. at 75.

10 725 Ill. Comp. Stat. 5/113-3 (West 2002).

11 Id.

12 People v. Polonowski, 258 Ill. App. 3d 497, 504, 629 N.E.2d 1162 (5th Dist. 1994) (citing from People v. Sims, 244 Ill. App. 3d 966, 981, 612 N.E.2d 1011 (5th Dist. 1993)).

13 People v. Kinion, 97 Ill. 2d 322, 333-334, 454 N.E.2d 625 (1983).

14 Id. at 336.

15 Id. at 336. See also People v. Vines, 43 Ill. App. 3d 986, 358 N.E.2d 72 (1st Dist. 1976) (non-capital murder case); People v. Wilson, 117 Ill. App. 3d 744, 453 N.E.2d 949 (4th Dist. 1983) (non-capital case).

16 People v. Burt, 168 Ill. 2d 49, 78, 658 N.E.2d 375 (1995) (establishing that a mitigation or investigation expert is not constitutionally required for a capital sentence hearing); People v. Hall, 157 Ill. 2d 324, 339-340, 626 N.E.2d 131 (1993); People v. Lear, 143 Ill. 2d 138, 148, 572 N.E.2d 876 (1991) (establishing that trial court is not constitutionally required to appoint a mitigation expert, or even an investigator, because defense counsel is capable of obtaining and presenting such information).

17 See, e.g., Burt, 168 Ill. 2d at 80.

18 West, supra note 2, at 1344 (quoting Justice Clark’s concurrence in Gideon v. Wainwright, 372 U.S. 335, 349 (1963)).

19 See People v. Watson, 36 Ill. 2d 228, 221 N.E.2d 645 (1966); Kinion, 97 Ill. 2d 322.

20 Watson, 36 Ill. 2d at 234.

21 Id. at 229.

22 Id. at 230.

23 Id. at 231.

24 Id. at 231.

25 Id. at 233.

26 Watson, 36 Ill. 2d at 233.

27 Ill.Rev.Stat. 1965, chap. 38, par. 113-3(e). See 725 ILCS 5/113-3(d).

28 Watson. 36 Ill. 2d at 234.

29 725 ILCS 5/113-3(d).

30 Watson. 36 Ill. 2d at 234-235.

31 Id. at 228; See also Kinion, 97 Ill. 2d 322.

32 See In re E.S., 246 Ill. App. 3d 330, 336, 615 N.E.2d 1346 (4th Dist. 1993).

33 See People v. McCoy, 281 Ill. App. 3d 576, 666 N.E.2d 805 (1st Dist. 1996).

34 Id. at 583.

35 Id. at 582.

36 Id. at 582 (quoting the capital case of People v. Keene, 169 Ill. 2d 1,7, 660 N.E.2d 901 (1995)).

37 Id. at 583. See also Walker v. Pate, 53 Ill. 2d 485, 292 N.E.2d 387 (1973) (neither the appointment of an investigator not expert physician was "sufficiently related" to the defendant’s theory of defense); People v. Glover, 49 Ill. 2d 78, 273 N.E.2d 376 (1971) (no necessity shown for expert stenographer to be funded by State); People v. Veal, 110 Ill. App. 3d 919, 443 N.E.2d 605 (1st Dist. 1982) (investigator, although different than expert, was not necessary but speculative to defense); People v. Clay, 19 Ill. App. 3d 296, 311 N.E.2d 384 (2d Dist. 1974) (defendant’s psychiatric history with no other showing of necessity is not evidence that a psychiatric examination is crucial to proper defense).

38 Watson, 36 Ill. 2d at 234.

39 Id. at 230.

40 Id. at 231.

41 Id. at 234. See also People v. Rhode, 219 Ill. App. 3d 1079, 580 N.E.2d 612 (2d Dist. 1991) (not improper for trial court to appoint an investigator); People v. Clankie, 180 Ill. App. 3d 726, 536 N.E.2d 176 (2nd Dist. 1989) (handwriting expert was necessary; however, motion for funding of expert was untimely); People v. Dickerson, 239 Ill. App. 3d 951, 606 N.E.2d 762 (4th Dist. 1992) (handwriting expert could establish defendant’s innocence).

42 See McCoy, 281 Ill. App. 3d 576; People v. Winfrey, 11 Ill. App. 3d 164, 298 N.E.2d 413 (2d Dist. 1973).

43 McCoy, 281 Ill. App. 3d at 583.

44 Winfrey, 11 Ill. App. 3d at 166.

45 Id. at 166.

46 Id. at 167.

47 Winfrey, 11 Ill. App. 3d at 165-167.

48 Clankie, 180 Ill. App. 3d at 731.

49 Id. at 731.

50 Id. at 731.

51 Id. at 731-732.

52 People v. Hebel, 174 Ill. App. 3d 1, 527 N.E.2d 1367 (5th Dist. 1988) (abrogated by Kinion, 97 Ill. 2d 322).

53 People v. Lawson, 163 Ill. 2d 187, 225, 644 N.E.2d 1172 (1994) (citing Kinion, 97 Ill. 2d at 336).

54 Kinion, 97 Ill. 2d at 336.

55 Lawson, 163 Ill. 2d at 225.

56 Id. at 225.

57 People v. Evans, 271 Ill. App. 3d 495, 504, 648 N.E.2d 964 (1st Dist. 1995).

58 Id. at 504.

59 Id. at 504 (quoting Lawson, 163 Ill. 2d at 224)

60 Id. at 504.

61 Watson, 36 Ill. 2d 228. See also Wilson, 117 Ill. App. 3d at 751; Childers, 94 Ill. App. 3d at 109; Vines, 43 Ill. App. 3d at 989.

62 725 ILCS 5/113-3(d) (West 2002).

63 Vines, 43 Ill. App. 3d at 989-990.

64 Id. at 989.

65 Id. at 989. See also Rhode, 219 Ill. App. 3d 1079 (dealing with the funding of an expert investigator).

66 Carlton Bailey, Ake v. Oklahoma and an Indigent Defendant’s ‘Right’ to an Expert Witness: A Promise Denied or Imagined?, 10 Wm. & Mary Bill. Rts. J. 401, 454 (2002).

67 Id. at 454

68 Winfrey, 11 Ill. App. 3d at 166.

69 Id. at 167.

70 McCoy, 281 Ill. App. 3d at 583.

71 Evans, 271 Ill. App. 3d at 502.

72 Id. at 496.

73 Id. at 497.

74 Id. at 505.

75 Id. at 497.

76 Id. at 501.

77 Id. at 501.

78 Tran v. Superior Court, 92 Cal. App. 4th 1149, 112 Cal.Rptr.2d 506 (4th Dist. 2001).

79 Id. at 1152.

80 Id. at 1152.

81 Id. at 1154.

82 Id. at 1158.

83 Id. at 1157.

Nicholas L. Lopuszynski, Student, DePaul University College of Law, University of Illinois at Urbana-Champaign, 2001. Submitted in conjunction with Honorable Anne B. Jorgensen, 18th Judicial Circuit, Felony Division

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