Low-Bono and Indigent Defense and the Use of Experts: Why and How to Do It
If you are poor (the fancy word is “indigent”), and you are accused of a crime, you are entitled to a court appointed attorney (or a public defender when the jurisdiction has an office). Now that can be dicey, because you cannot choose your court-appointed attorney and there are very limited circumstances in which you can request a new one. I do the best I can for all clients, court appointed or hired, but I cannot speak for all attorneys.
If you choose to scrape together some money and hire an attorney, you may be able to find one to work with you on a payment plan or for a reduced fee. We sometimes call this a “low-bono” case. I do this for some clients.
Bottom line is, you may not have any money to hire an attorney or you may run out of money by hiring an attorney. You may have nothing left to fund other aspects of your defense.
In complicated cases, and in cases in which there are witnesses, you may need to utilize other professionals in your case to competently and successfully mount your defense. You may need to use an “expert”. This can be a psychiatrist/psychologist, a scientist, or an investigator. These can all help either gather defense evidence or analyze and criticize parts of the state’s evidence. This can be very helpful in negotiations and persuasive with a jury at trial.
If you cannot afford an expert, your attorney can petition the court to order the prosecuting county to pay for your expert. Under Ake v Oklahoma (a federal case), and State v Briggs (a Texas case) the county (or other relevant jurisdiction) has to provide you with money for a competent expert if you show that: 1) you are indigent (and you can qualify under this prong even if you hired an attorney if you have run out of resources) and 2) you make a substantial showing of material need for this expert.
If science if a relevant piece of the trial, like in a DWI with a breath or blood test in which the state is going to have a scientist testify to their evidence of a particular Blood Alcohol Content, you can almost always show that you have a material need for your own expert to look at the state’s evidence and form an opinion. If you have witnesses, you can usually show a need for an investigator as you (as the attorney or defendant) cannot interview these witnesses yourself AND testify to what they said.
What do you do with an expert? Choosing the right one is a different matter. You might want to find one that another attorney can vouch for as effective and qualified. You can ask them to write a report that you can use in cross-examination. You can also ask them to testify (this usually costs additional money).
The point is this: a good attorney is going to know when and how to utilize an expert. S/he isn’t going to be afraid to insist that the county pay for it. S/he isn’t going to be intimidated by scientific or pseudo-scientific evidence in your case and insist you plead guilty. I’d like to think I’m describing myself.