M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Ex Parte Request for Funding by Indigent Defendant
The Committee has a request for review of the procedure for an indigent defendant to request funds necessary to present an adequate defense. Specifically, the issue is whether a rule should be adopted providing a procedure for an indigent defendant to request funding ex parte. See letter from Justice Kapsner; State v. Goulet, 1999 ND 80, ¶ 12, 593 N.W.2d 345.
1. Funding for Defense of Indigent Defendants in North Dakota
Rule 44, N.D.R.Crim.P., provides an indigent defendant is entitled to have counsel appointed at public expense, except in non-felony cases in which the judge determines the sentence upon conviction will not include imprisonment. In addition, N.D.C.C. § 29-07-01.1 provides: "Expenses necessary for the adequate defense of a needy person, when approved by the judge, must be paid by the state . . . ." See also N.D.C.C. §§ 31-01-16, 31-01-18 and 31-01-19 covering reasonable and necessary expenses, including fees, for witnesses.
State v. Gonderman, 531 N.W.2d 11 (N.D. 1995), elaborates on the funding to which a defendant is entitled:
When a State brings criminal charges against an indigent defendant, it must take steps to ensure that the accused has a meaningful chance to present a defense. Although a State need not provide an indigent defendant with all the tools that a wealthier counterpart may buy, it must provide an indigent defendant with the "basic tools of an adequate defense."
Id. at 13 (citations omitted). The Gonderman court further said:
Under [Ake v. Oklahoma, 470 U.S. 68, 77 (1985)], indigent defendants do not have carte blanche to obtain expert assistance; instead, they are entitled to expert assistance necessary to afford "an adequate opportunity to present their claims fairly within the adversary system."
Id. at 13.
The Indigent Defense Procedures and Guidelines provide up to $500 will be reimbursed without prior written approval of the judge presiding in the case for investigators and expert witnesses. If a lawyer anticipates investigatory expenses or expert witness fees in a particular case of more than $500, early prior written approval of the judge presiding in the case is required. The guidelines do not address whether approval may be obtained ex parte.
In certain instances, North Dakota has provisions requiring an indigent defendant's request for funding to be heard ex parte. Section 12.1-04.1-02, N.D.C.C., provides the application and proceedings to obtain funding for mental health professionals must be ex parte. Rule 17(b), N.D.R.Crim.P., provides: "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 . . . ."
2. Ex Parte Requests for Funding in Other States
Courts in many states have held an indigent defendant is entitled to an ex parte hearing when funds for expert or investigatory assistance is requested. See, e.g., Williams v. State, 958 S.W.2d 186, 191-94 (Tex. Crim. App. 1997) (holding an indigent defendant seeking psychiatric expert assistance is entitled to an ex parte hearing); Ex parte Moody, 684 So.2d 114, 118-21 (Ala. 1996) (holding an indigent defendant seeking nonpsychiatric expert assistance is entitled to an ex parte hearing under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution; Arnold v. Higa, 600 P.2d 1383, 1385 (1979) (holding indigent defendant should be given opportunity to explain need for investigative services in ex parte hearing, upon request, so the reasons can be particularized without disclosing the theories of the defense to the state); but see State v. Phipps, 418 S.E.2d 178, 190 (1992) (holding an indigent defendant is not entitled as a matter of right to an ex parte hearing on a motion to hire a private investigator); contra State v. Apelt, 861 P.2d 634, 649-50 (Ariz. 1993) (holding an ex parte hearing on a defendant's request for expert assistance is not constitutionally required, given the broad disclosure required by Arizona's Rules of Criminal Procedure).
3. Constitutional Implications of an Indigent Defendant's Request for Funding
An ex parte hearing of an indigent defendant's request for funding may be constitutionally required. A defendant's due process rights, equal protection rights, privilege against self incrimination, and right to effective assistance of counsel may be implicated. See Ex parte Moody, 684 So.2d at 119-21; State v. Ballard, 428 S.E.2d 178, 179-181 (N.C. 1993).
An indigent defendant's access to the "basic tools of an adequate defense" is a core requirement of the due process guarantee of a fundamentally fair trial. Ex parte Moody, 684 So.2d at 120, citing Ake v. Oklahoma, 470 U.S. 68, 77 (1985). "[T]he State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners." Ex parte Moody, 684 So.2d at 120, quoting Britt v. North Carolina, 404 U.S. 226, 227 (1971). "An indigent defendant should not have to disclose to the state information that a financially secure defendant would not have to disclose." Ex parte Moody, 684 So.2d at 120. To avoid compelling disclosure of an indigent defendant's theories of defense to the prosecution, an indigent defendant's request for funding should be heard ex parte. Williams, 958 S.W.2d at 193-94.
"Requiring an indigent defendant to prematurely disclose evidence in a hearing where the state is present encroaches on the privilege against self-incrimination . . . ." Ex parte Moody, 684 So.2d at 120. Forcing disclosure of the defense's trial strategy to access assistance would also impair the indigent defendant's right to effective assistance of counsel. Id. at 120.
4. Provisions for ex parte Hearing of an Indigent Defendant's Request for Assistance
Many jurisdictions have provided for an ex parte hearing by rule or statute when an indigent defendant requests expert or investigative assistance. See 18 U.S.C.A. § 3006A; Cal. Penal Code § 987.9; Del. Com. Pl. Ct. Crim. Proc. R. 44(e); Kans. Stat. Ann. § 22-4508; Minn. Stat. Ann. § 611.21; Nev. Rev. Stat. § 7.135; N.Y. County Law § 722-C; Or. Rev. Stat. § 135.055(3); S.C. Code Ann. § 17-3-50(B); Tenn. Code. Ann. § 40-14-207.
Should North Dakota adopt a rule providing for ex parte hearing of an indigent defendant's request for assistance? Without a rule authorizing an ex parte hearing, a trial judge risks violating N.D. Code Jud. Conduct Canon 3(B)(7), which provides: "A judge shall not initiate, permit, or consider any ex parte communications . . . except that: . . . (e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so."