Funds for experts and other resources have been provided for by the Kentucky Legislature when a defending attorney under KRS Chapter 31 is representing an indigent in a criminal proceeding and the expert or resources are reasonably necessary for the competent defense of the client. The General Assembly provides for this in capital and non-capital cases and at trial, appeal and in post-conviction. KRS 31.185 states that these resources are available to a public defender operating under the provisions of KRS Chapter 31.

Funds for experts and other resources lose much of their meaning if obtained at the expense of confidentiality. Fortunately, our Constitution, caselaw, and statutes increasingly recognize the need for requests for funds by indigents to be confidential without the prosecutor, public or media present. Without this confidential process, indigents are penalized by their poverty into prematurely revealing their defense strategies. With this confidential process, the attorney/client privilege is insured.

The 2002 General Assembly has recognized the importance of this right by explicitly providing for it by statute. Effective July 15, 2002, KRS 31.185(2) now reads: "The defending attorney may request to be heard ex parte and on the record with regard to using private facilities under subsection (1) of this section. If the defending attorney so requests, the court shall conduct the hearing ex parte and on the record."

The 2002 General Assembly added this provision despite the strong opposition to it by one Commonwealth Attorney. The Senate passed the bill 35-0 and the House passed the bill 91-0.

A request for funds for experts or other resources must contain enough information to meet the threshold showing which is necessary to justify the fourteenth amendment right to the defense resources. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 1091, 1096, 84 L.Ed.2d 53 (1985). Almost necessarily, that threshold showing will contain privileged information about the defense which the prosecutor is either never entitled to discover or not entitled to discover at this early juncture of the proceedings.

A non-indigent criminal defendant selects and hires experts and investigators without knowledge of the prosecutor or court. In the civil arena, information about the retention of an expert by a party is not discoverable. See, e.g., Newsome v. Lowe, Ky.App., 699 S.W.2d 748 (1985). In order to obtain public funds for resources, indigents rightly have to present information to a neutral judge who decides whether the requested assistance is reasonably necessary. But revealing that confidential information to the prosecution in a way that a non-indigent criminal defendant does not have to reveal it violates equal protection. Prosecutors do not reveal employment of their experts to the defense until required by the court.

Ex parte Have real public benefits as such proceedings increase the information available to the judge and increase the reliability of his or her decision. In assessing the request for public funds, the judge is entitled to the thoughts, reasoning and strategy of the defense, including matters within the attorney/client privilege, but the prosecutor is not entitled to that privileged information. Therefore, an ex parte proceeding has the pragmatic effect of allowing judges to obtain more information from the defense for the judge to make a decision since the proceeding is confidential. When a judge has more information, his or her decision is likely to be more reliable.

With rare exception, criminal defendants are not required to reveal their defense prior to trial. KRS 31.185(2) now explicitly recognizes the right to make requests for funds for resources ex parte. This is consistent with KRS 500.070(2) which states, "No court can require notice of a defense prior to trial time." A defendant cannot be required to reveal his defense by having to make his threshold showing in front of the prosecutor, public or media.

The vast majority of Kentucky judges have permitted counsel for indigent defendants to make requests for resources ex parte based on fairness, caselaw and common sense. However, a few judges have not permitted this process to proceed ex parte.

Ake, supra, makes the statement, "when the defendant is able to make an ex parte threshold showing to the trial court...." "The intention of the majority of the Ake Court that [the threshold showing] hearings be held ex parte is manifest...." McGregor v. State, 733 P.2d 416 (Okla.Ct.Crim. App. 1987).

Ake has been relied on by other courts to find that proceeding ex parte is constitutionally required. An "indigent defendant who requests that evidence supporting his motion for expert psychiatric assistance be presented in an ex parte hearing is constitutionally entitled to have such a hearing...." State v. Ballard, 428 S.E.2d 178, 179 (N.C. 1993). Preventing a defendant from proceeding ex parte improperly forces him to "jeopardize his privilege against self-incrimination and his right to the effective assistance of counsel, guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution." Id.

"Only in the relative freedom of a non-adversarial atmosphere can the defense drop inhibitions regarding its strategies and put before the trial court all available evidence of a need for psychiatric assistance. Only in such an atmosphere can the defendant's privilege against self-incrimination and his right to the effective assistance of counsel not be subject to potential violation by the presence of the State." Id. at 183.

The Kentucky Supreme Court has held in an unpublished opinion that the ex parte process is required in a highly analogous situation.

In the extraordinary writ case of Jacobs v. Caudill, Ky., 94-SC-677-OA (Sept. 2, 1994) (unpublished) the Kentucky Supreme Court unanimously held that the hearing to "determine petitioner's competency to voluntarily and intelligently waive any defenses or otherwise direct his defense...." had to be conducted in accord with the 5th and 6th amendments. "To avoid any possible violation of the petitioner's constitutionally protected rights, it is mandated that when issues arise in said hearing involving petitioner's attorney-client privilege, right against self-incrimination or his right to prepare and present a defense, said proceedings shall be conducted by the trial court in camera and ex parte, but on the record." See Jacobs v. Commonwealth, Ky., 58SW 3d 435, 440 (2001)

No competent criminal defense attorney who practices his cases ethically would reveal any defense information prematurely, absent some strategic advantage.

In McCracken County Fiscal Court v. Graves, Ky., 885 S.W.2d 307 (1994) the Kentucky Supreme Court set out a very helpful principle: Indigents are entitled to be represented to the same extent as monied defendants.

The Court said, "We also take this opportunity to offer a bit of guidance to trial courts for the purpose of future determinations of what constitutes a reasonable and necessary indigent expense. In KRS 31.110(1)(a), it is stated that a needy defendant is entitled: To be represented by an attorney to the same extent as a person having his own counsel is so entitled. While this certainly cannot mean that an indigent defendant is entitled to have any and all defense-related services, scientific techniques, etc., that a defendant with unlimited resources could employ, we think it is a useful standard as a starting point. At a minimum, a service or facility the use of which is provided for by statute should be considered by a trial court, as a matter of law, to be 'reasonable and necessary.'" Id. at 313.

There "is no need for an adversarial proceeding, that to allow participation, or even presence, by the State would thwart the Supreme Court's attempt to place indigent defendants, as nearly as possible, on a level of equality with non-indigent defendants." McGregor, supra, at 416.

In other contexts, the Kentucky Supreme Court has recognized the necessity for courts to function ex parte. In West v. Commonwealth, Ky., 887 S.W.2d 338 (1994) the Court held that a trial judge has jurisdiction to enter an order pursuant to RCr 2.14(2) after an ex parte hearing appointing public defender to an indigent being questioned by police and ordering that the questioning be stopped so the defendant could consult with the attorney. "By virtue of its general jurisdiction, the circuit court frequently acts ex parte in criminal matters. A clear example of such an act is in the issuance of search warrants. RCr 13.10." Id. at 341 n.1.

Prior to the Kentucky Legislature explicitly providing for an ex parte process, Kentucky courts faced ex parte issues in a number of different circumstances. The Court determined that it is not reversible error for a trial court to conduct an ex parte hearing on the issue of funds for experts. In Baze v. Commonwealth, Ky., 965 S.W.2d 817 (1997) the Court stated, "On cross-appeal, the Commonwealth argues that the trial judge committed error in allowing the defense counsel to proceed ex parte in requesting funds for experts. Although we believe it is prudent to discourage ex parte proceedings in a trial of this importance, we do not find reversible error in this case." Id. at 826. In Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 909-910 (1998) the Court said, "There is no authority to support ex parte motions for hearings for expert funding in a RCr 11.42 proceeding." Ake v. Oklahoma… is not a post-conviction case. The issue is that case related to the preparation of a trial defense and the right to access to psychiatric examination. It does not apply to every matter relating to the funding of experts for indigent defense at every stage in a criminal case. See Baze…." See also Haight v. Commonwealth, Ky., 41 SW 3d 436, 444-445 (2001). In Dillingham v. Commonwealth, Ky., 995 S.W.2d 377, 381 (1999) the trial judge was presented with a one sentence ex parte letter requesting appointment of an investigator by pro se defendants. The Court stated that such a letter "is not a substitute for a properly presented motion. Thus, the issue was never properly before the trial court and is not preserved for review." The statutory change made by the 2002 Kentucky General Assembly now clarifies and modifies these Kentucky case rulings and dictum.

The KRS 31.185(2) change that now makes proceeding ex parte mandatory upon request is applicable to any criminal proceeding. It does not exclude RCr 11.42 proceedings. KRS 31.185(2) explicitly applies when a defending attorney makes the request. As provided in KRS 31.185(1), the request for funds process is applicable to any "defending attorney operating under the provisions of this chapter. . . ." A public defender representing an RCr 11.42 client is a defending attorney operating under the provisions of KRS Chapter 31.

While a defendant may not have a constitutional right to funds for experts and resources or to proceed ex parte in a post-conviction proceeding, in Kentucky a defendant does have a statutory right to such assistance and to proceed ex parte pursuant to KRS 31.185. To the extent that Sanborn, supra, and Haight, supra, hold that ex parte requests for experts are not authorized by KRS Chapter 31, the 2002 General Assembly’s changes to KRS 31.185 has effectively overruled those holdings.

Proceeding ex parte is commonly recognized as appropriate in other settings. Examples of Kentucky statutes, rules, and caselaw which permit or recognize proceeding ex parte follow:

1. RCr 1.08: addresses the service of motions, recognizes the ex parte nature of some motions by stating, "...every written motion other than one that may be heard ex parte...must be served upon each party."

2. CR 65.07(6) Interlocutory relief: allows ex parte grant of emergency relief when a movant will suffer irreparable injury before a motion can be heard by a panel;
3. CR 5.01 & RCr 1.08 Service: exempts serving pleadings which may be heard ex parte;
4. CR 6.04 Time for Motions: serving written motions which may be heard ex parte;
5. CR 53.05 Domestic Relations, Commissioners, Meetings: allows proceeding to be conducted ex parte if a party fails to appear at the time and place appointed;
6. CR 65.08(7): Interlocutory relief pending appeal from final judgment;
7. CR 76.38: Reconsideration of appellate orders;
8. CR 77.02(1): Hearings outside judicial district;
9. KRS 209.130(1): Ex parte order for protection when "it appears probable that an adult will suffer immediate and irreparable physical injury or death if protective services are not immediately provided...."
10. KRS 620.060(1): Ex parte emergency custody order "when it appears to the court that there are reasonable grounds to believe, as supported by affidavit or by recorded sworn testimony, that the child is in danger of imminent death or serious physical injury or is being sexually abused and that the parents or other person exercising custodial control or supervision are unable or unwilling to protect the child."
11. KRS 645.120(3): Emergency involuntary hospitalization of a child that as a result of mental illness needs immediate hospitalization for observation, diagnosis or treatment. This can occur by telephone.
12. West v. Commonwealth, Ky., 887 S.W.2d 338, 341 (1994). Circuit court can consider ex parte request for appointment of counsel under RCr 2.14. "By nature of its general jurisdiction, the circuit court frequently acts ex parte in criminal matters." Id. at 341 n.1.

Since 1964, the Criminal Justice Act, 18 U.S.C. 3006A(e)(1), has provided that requests by indigents for funds for resources be done ex parte if the defendant wants that confidential process.

That statute states, "Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application."

The federal Anti-Drug Abuse Act's provisions involving federal capital prosecutions provide for an ex parte hearing for funding of resources when there is a showing of a need for confidentiality: "No ex parte proceeding, communication, or request may be considered pursuant to this section unless a proper showing is made concerning the need for confidentiality. Any such proceeding, communication, or request shall be transcribed and made part of the record available for appellate review." 21 U.S.C. §848(q)(9).

Federal Rule of Criminal Procedure 17(b) allows applications for subpoenas by defendants unable to pay for their service be done ex parte to the court." See Holden v. United States, 393 F.2d 276 (1st Cir. 1968). That rule states, "Defendants Unable to Pay. 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 and that the presence of the witness is necessary to an adequate defense."

An indigent defendant is entitled to ask for funds for expert help ex parte to avoid prejudicing the defendant by "forcing him to reveal his theory of the case in the presence of the district attorney." Brooks v. State, 385 S.E.2d 81 (Ga. 1989). The "use of ex parte hearings...is a well-recognized technique available to any party" who is faced with the dilemma of being "forced to reveal secrets to the trial court and prosecution" in order to support" a motion. State v. Smart, 299 S.E.2d 686, 688 (S.C. 1982).

"Where counsel for defendant objects to the presence of Government counsel at such a hearing, the failure to hold an ex parte hearing is prejudicial error." Mason v. Arizona, 504 F.2d 1345, 1352 n.7 (9th Cir. 1974). "The manifest purpose of requiring that the inquiry be ex parte is to insure that the defendant will not have to make a premature disclosure of his case." Marshall v. United States, 423 F.2d 1315 (10th Cir. 1970). See also United States v. Sutton, 464 F.2d 552 (5th Cir. 1972).

Under KRS 31.185(4) fiscal courts, all 120 counties now pay a fixed sum into a statewide indigent resources fund with the state paying anything above this fixed amount.

When the county fiscal courts had sole responsibility for these funds, the county clearly had standing to challenge the court's determination. After July 15, 1994, the effective date of the amendment to KRS 31.185, the only entity likely to have standing to challenge the authorization of funds or their amount is the Finance and Administration Cabinet since county fiscal courts must pay a fixed amount of money into the statewide special fund, and only the state has financial obligation if the fund is exhausted.

The ultimate funding authority, now the Commonwealth of Kentucky through the Finance and Administration Cabinet, is not legally entitled to be present at any ex parte hearing. See Boyle County Fiscal Court v. Shewmaker, Ky.App., 666 S.W.2d 759, 762-63 (1984).

The presence of counsel for the funding authority "would create unnecessary conflicts of interest; in any event, county counsel's presence cannot be permitted because such petitions are entitled to be confidential." Corenevsky v. Superior Court, 204 Cal.Rptr. 165, 172 (Cal. 1984) (In Bank). The funding authority's right to challenge the awarding or amount of funds is available after entry of the order.

For some time, Fayette County has had a local rule, Rule 7 (formerly Rule 8B), that requires ex parte hearings when indigents request funds for an expert or other resource. It reads:

"Rule 7. Requests For Funds For Expenses In Criminal Cases

1. Ex Parte Request For Funds. A defendant in a pending criminal proceeding, who is a needy person as defined by KRS Chapter 31, may apply ex parte to the Court, without notice to the Commonwealth's Attorney, for the payment of investigative, expert or other services necessary for an adequate defense.
2. Hearing. After reviewing the application, the Court may approve the application without a hearing or assign the application for a hearing. No persons other than the defendant, the defendant's attorney and Court personnel shall attend the hearing unless otherwise authorized by the court.
3. Sealing of Proceedings. The Clerk shall seal that portion of the record containing the application and the proceedings thereon including the record of the hearing and any order issued as a result thereof, except as otherwise authorized by the Court. The disclosure of the application or proceedings thereon may be punishable as a contempt of Court."

1. Ex Parte Requests. Counsel for a person who is financially unable to pay for investigation, experts, the attendance of out-of-state witnesses, or other services reasonably necessary for the defense may request funds for those services in an ex parte, in camera application to the Judge and, upon such request, the Judge shall conduct the inquiry ex parte and in camera on the record and with the record sealed.

Accountability for the expenditure of public money for experts, investigators and other resources under KRS 31.185 is provided for by judicial scrutiny and approval of requests.

Requesting funds for resources to insure a competent defense must be ex parte to make sure that obtaining appropriate funds is done without sacrificing confidential information. Indigents are entitled to the same confidential aid that monied defendants do not even have to seek. Poverty should not be a penalty. The 2002 Kentucky General Assembly has now explicitly assured that right.