Ex Parte Hearings Litigation Guide

Note: The 2010 Virginia General Assembly enacted a new and rather complex procedure for ex parte hearings for expert and investigative funds in capital cases. The statute is codified at Va. Code § 19.2-264.3:1.3 and can be found at http://leg1.state.va.us/cgi-bin/legp504.exe?101+ful+CHAP0789. In light of this major change, the contents of this section of www.VC3.org will soon be completely revised. The current contents reflect the issues surrounding ex parte hearings prior to this year's legislative revision.

Virginia law does not currently allow for ex parte hearings for expert assistance for indigent criminal defendants. The current practice requires that most defendants demonstrate a particular need for expert assistance in open court, in the presence (and often over the vigorous opposition) of the prosecution. This requirement to make and justify each request in open court may reveal defense strategies to the prosecution. Only indigent defendants are disadvantaged in this way. The prosecution does not have to disclose its own strategies to the defense because it controls its own funding.

Virginia is essentially the only death penalty jurisdiction that does not provide ex parte hearings for expert assistance. Other jurisdictions provide for such hearings through statute, court ruling, or through accepted practice of granting requests. For more on what other states do, see Justin B. Shane, Money Talks: An Indigent Defendant's Right to an Ex Parte Hearing for Expert Funding, 17 Cap. Def. J. 347 (2005).

In 2008 and again in 2009, the Virginia General Assembly considered legislation that would have provided for ex parte hearings for capital defendants in Virginia. The 2008 bill was overwhelmingly passed in the Senate 34-4, only to be narrowly defeated on a tie vote in the Criminal Subcommittee of the House. A similar bill was proposed in 2009. Responding to concerns expressed by prosecutors, this version added a new provision specifying that the ex parte hearing must be before a judge who is not presiding in the case, and that the hearing will be on the record. Further discussions with representatives of the Virginia Commonwealth Attorneys' Association resulted in three more changes. These new provisions required two showings for the need for confidentiality (one in open court and one before the ex parte judge), a two-way discovery rule requiring prosecutors and defense attorneys to disclose their list of experts well in advance of trial, and a provision that, in the event of a denial of expert funding, defense counsel had to renew the application for funding in open court or else forgo the right to appeal the denial. Had it passed, this bill would have been the most prosecution-friendly ex parte procedure in the country. The bill passed the Senate unanimously, but was again defeated in a tie vote in the Criminal Subcommittee of the House. The text of SB 939 as amended is here.

Despite these legislative defeats, the issue is being vigorously litigated in Virginia courts. A defendant who needs funding for expert assistance, but does not want to disclose defense confidences and strategy to the prosecution, should consider the following approaches and sample motions.

First, a defendant may make a motion for an ex parte hearing. Despite somewhat adverse case law, Virginia judges have been granting ex parte hearings with increasing frequency. A recent example from Frederick County may be found here. An argument in support of an ex parte motion may rely on Ake v. Oklahoma, Husske v. Commonwealth, the practice of other death penalty jurisdictions, the Due Process Clause, the Sixth Amendment right to counsel, the Fifth Amendment privilege against self-incrimination, and the Sixth Amendment right to compulsory process. A sample motion may be found here.

If the court denies that motion, counsel can renew it with an added proposal to designate a "fire-walled" Commonwealth's Attorney to represent the Commonwealth's interest at the hearing. This fire-walled attorney would be a prosecutor from a nearby jurisdiction who would participate in the hearing for expert funding, but would be barred from discussing what the defense disclosed at the hearing with the prosecutors assigned to the case. (Using an assistant from the prosecutor's office is another alternative, albeit a less desirable one). Although the request for expert funding would still be made in open court, the legal strategies would not be disclosed to the attorneys prosecuting the case. Click here for a sample motion.

If the court denies that motion, the prosecution will be present during the defense's request for funding. In order to mitigate the damage, a further step would be to make a motion barring the Commonwealth from using the confidential information disclosed during the funding hearing. Click here for a sample motion.

Another motion available here highlights the inequity of the current Virginia procedure by demanding disclosure of all the prosecution's investigative and expert expenditures so as to "level the playing field" between the prosecution and the accused. Click here for a sample motion.

The practice of forcing counsel for indigent defendants to disclose their defense strategies and prospective lines of investigation in this unilateral fashion in order to obtain essential funding is a practice that cannot and will not continue much longer. Its unfairness is already obvious to many judges and to most of the legislators who have been permitted to vote on proposals for change. Defense counsel can continue to advance this process of reform by vigorously challenging this unfair and outmoded feature of Virginia's criminal justice system.