3. Motion to Appoint Expert
The following sample motion to appoint expert must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.
Some courts have a list of approved mental health professionals and/or other experts. In these courts, a request for appointment of a mental health expert to examine the defendant may result in an expert from the approved list being randomly chosen to examine the defendant.
The same mental health expert may be called upon to determine whether the defendant is competent to stand trial and whether the defendant was insane at the time of the offense.
Convincing a jury that a defendant is not guilty by reason of insanity doesn’t mean the defendant gets off. It usually means that the defendant simply serves his sentence in a mental institution, which may sometimes be a longer sentence than what would have been served if sentenced to prison.
Some defendants have refused to cooperate with mental health experts under the expectation that the expert cannot find the defendant competent to stand trial unless the expert examines the defendant. This usually results in the expert making a finding that the defendant is “malingering” and the defendant is declared to be competent. This can make the defendant look bad in the eyes of the court. It is generally best to cooperate with the defense team, including any mental health experts.
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TO THE ABOVE-ENTITLED COURT: Defendant hereby moves the court for an order appointing Dr. Inyo Head at the expense of the county, to examine and advise the defendant on a confidential basis, and to testify on the defendant’s behalf and for such other relief as may seem just and proper to the court.
The motion is made on the grounds that a mental health examination of the defendant and expert testimony is necessary to the preparation of the defense of this action.
The motion is based on this notice of motion, on the attached declaration, and the memorandum of points and authorities served and filed herewith, on such supplemental declarations, affidavits, memoranda of points and authorities as may hereafter be filed with the court, on all the papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing of the motion.
Dated:
_______________
By Bill Slocumb,
Attorney for Danny Dean
POINTS AND AUTHORITIES
THE DUE PROCESS OF EFFECTIVE COUNSEL INCLUDE THE RIGHT TO THE ANCILLARY SERVICES FOR THE PREPARATION OF THE DEFENSE
Supreme Court decisions mandate that effective assistance of counsel “… requires, when necessary, the allowance of investigative expenses or appointment of investigative assistance for indigent defendants in order to insure effective preparation of their defense by their attorneys.” (Mason v. State of Arizona (9th Cir. 1974) 504 F. 2nd 1345, 1351).
“The due process right of effective counsel includes the right to the ancillary services necessary in the preparation of a defense. [citations omitted.] The right is codified in Penal Code section 987.2 which provides that counsel appointed for an indigent defendant shall not only be compensated by a reasonable fee but also shall be reimbursed for his necessary expense.” (People v. Faxel (1979) 91 Cal App 3rd 327, 330)
“The Sixth Amendment right to counsel is a meaningless gesture if counsel for an indigent is denied the use of working tools essential to the establishment of what would appear to be a tenable or possible defense.”
(People v. Gunnerson, 74 Cal App 3rd 370, 379).
It cannot be doubted that the right to counsel guaranteed by both the federal and state Constitutions includes, and indeed presumes, the right to effective counsel, and “the right to effective counsel also includes the right to ancillary services necessary in the preparation of a defense.” (Keenan v, Superior Court (1982) 31 Cal 3rd 424, 428) “A fundamental part of the constitutional right of an accused to be represented by counsel is that his attorney…is obviously entitled to the aid of such expert assistance as he may need…in preparing the defense.” (Re Ketchel (1968) 68 Cal 2nd 397, 399-400)
THE RIGHT TO SUCH COURT-ORDERED SERVICES IS SUPPORTED BY STATUTE
Evidence Code §730 explicitly provides for court-appointed experts:
When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which such expert evidence is or may be required. The court may fix the compensation for such services, if any, rendered by any person appointed under this section, in addition to any services as a witness, at such amount as seems reasonable to the court.
Evidence Code §731(a) and Government Code §29603 clearly state that the county must pay those court-ordered expenses.
These statutes do not enumerate the type of experts to be appointed, but the Supreme Court has held that “the right to such services is to be inferred from at least two statutes respecting an indigent defendant’s right to legal assistance.” (Corenevsky v. Superior Court (1984) 36 Cal 3rd 307, 319)
THE RIGHT TO COUNSEL INCLUDES THE RIGHT TO HAVE ANY COMMUNICATION MADE TO EXPERTS REMAIN CONFIDENTIAL
The Court of Appeal has held that the right to counsel guaranteed by the Sixth Amendment to the United States Constitution “also includes the right to have any communications made to experts remain confidential.” (Torres v. Municipal Court for Los Angeles Judicial Dist. (1975) 50 Cal App 3rd 778, 784).
DECLARATION IN SUPPORT OF MOTION TO APPOINT MENTAL HEALTH EXPERT
I, Bill Slocumb, Attorney for Defendant, declare and aver as follows:
1. Defendant is charged, inter alia, with first degree murder. He is facing a life sentence.
2. I am informed and believe that Defendant is indigent in that this assignment came to me as a Public Defender conflict, and Defendant is currently in custody.
3. Defendant has entered a plea of Not Guilty By Reason of Insanity. I request the appointment of Dr. Inyo Head, whose C.V. is attached, for the purpose of examining Defendant.
4. The Prosecution has their own mental health professional, who is scheduled to examine Defendant.
5. Dr. Head’s fee for reviewing the massive amount of discovery is $3,750.00 for 25 hours of work at a rate of $150.00 per hour.
6. An additional flat rate of $1,500.00 is needed for travel time from Oxnard to Bakersfield and back, examination of defendant, and consult with attorney regarding examination.
7. As such, counsel is requesting that Dr. Head be appointed for the initial fee of $5,250.00.
Dated:
_______________
By Bill Slocumb,
Attorney for Danny Dean
ORDER
Pursuant to Defendant’s Ex Parte application, IT IS HEREBY ORDERED that Dr. Inyo Head is appointed to assist the Defense as a psychologist and that a maximum of $5,250.00, be authorized for Dr. Head for work to be performed at a rate of $150.00 per hour.
Dated:
_______________
By Judge of the Superior Court