CRIMINAL RULE 13: ANCILLARY DEFENSE EXPENSES
B. REQUIRED SUBMISSIONS
C. REQUIRED DECLARATION
D. TRAVEL EXPENSES
E. EXPENSES FOR MEDICAL AND MENTAL HEALTH PROFESSIONALS
F. ADDITIONAL FUNDING
G. CLAIMS FOR THE PAYMENT OF ANCILLARY DEFENSE EXPENSES
This rule states the requirements for the payment under Penal Code § 987.2 of the necessary expenses that are incurred by appointed or retained counsel, or self-represented defendants, for the defense of persons who are not able to pay for the costs themselves. This rule will refer to these necessary expenses as “ancillary defense expenses.” All funds expended under Penal Code § 987.2 for ancillary defense expenses must have prior approval by Court order. Funds approved for a specific purpose, moreover, may not be expended for another use without prior Court approval.
All initial applications for the authorization of ancillary defense expenses shall be submitted by ex parte motion to the clerk of the Criminal Division Supervising Judge. The application shall be accompanied by: (1) a declaration of defendant’s indigence, signed under penalty of perjury; and (2) a declaration with the information described in subdivision C below.
All applications for ancillary defense expenses shall be supported by a declaration setting forth:
(1) a summary of the circumstances of the charged offense or facts that demonstrates why the funding of ancillary defense expenses is necessary in the interests of justice;
(2) the status of the case;
(3) the specific purpose for the funds, including the nature of the services to be rendered and an explanation why those services are reasonably necessary for the defense of the case; and
(4) the name and title of each appointed service provider (investigator, expert, or other) for whom funds are being sought, the hourly rate and maximum amount expected to be charged for the service, travel-related expenses other than mileage, and any other special expenses. If a self-represented defendant has not suggested a particular investigator, the Court will select one from the rotational investigator list. Billing rates for all investigators shall be no more than $60.00 per hour, and the initial authorization for investigators shall be limited to $1,500.00 (including hourly fees and any mileage at prevailing rates as set by the Court). Billing rates for legal runners shall be no more than $15.00 per hour, and the initial authorization for legal runners shall be limited to $250.00. Legal runner services, when approved by the Court, are limited to photocopying, and transporting materials, orders, and motions. Visits and phone calls to the County’s detention centers must be associated with an allowable billable activity, and will be subject to the Court’s discretion.
(1) No funds may be expended for overnight travel by investigators, experts, or others without prior Court approval. Pre-approved hourly investigation expenses may not be applied to overnight or airline travel costs unless expressly designated by the Court for travel after an appropriate request.
(2) Applications that include a request for travel expenses to interview witnesses must contain, in addition to the requirements above, a declaration setting forth:
(a) the relevance and materiality of the witness’s proposed testimony;
(b) an explanation why a telephone interview or an interview conducted through the Internet or other forms of electronic communication would not suffice instead of a face-to-face interview;
(c) an explanation why it would not be practical to utilize the services of an investigator in the area where the witness lives to conduct the interview; and
(d) whether it would be feasible to fly the witness to the San Jose airport for an interview, with a return flight the same day, to avoid the expense of overnight travel for the investigator.
(e) The applicant should endeavor to secure the lowest possible airfare.
On initial applications for authorizing expenses for doctors, psychologists, psychiatrists, and similar experts, the maximum amount allowed by the Court will be an amount sufficient to procure an initial written report from the expert. This report should describe the need, if any, for further services at an approved rate. The defense must endeavor to negotiate the lowest hourly rate. If the defense retains an expert from outside the Bay Area, the declaration shall explain in detail why local experts could not be employed to provide similar services. Expenses for supplemental reports by experts or investigators may not be paid by the Court without prior Court approval.
After the initial funding approved by the declaration described in subsection C above has been exhausted, no additional work may be performed or compensated without first obtaining Court approval by submitting a supplemental funding request under this subsection. Each application for additional funding for a previously authorized service provider (investigator, expert, or other) shall state, in the heading of the pleading, that it is a supplemental request, and shall include a declaration setting forth:
(1) the date and amount of previous funding authorizations for the service provider;
(2) the amount of any billings for services completed by the service provider;
(3) the remaining balance from funds previously authorized for the service provider; and
(4) a detailed description of the services remaining to be performed. Any additional request for the services of an expert must be accompanied by a report or declaration of the expert explaining the need for the additional services.
Claims for the payment of ancillary defense expenses must have prior Court authorization as described above; without prior authorization, claims will not be paid. Claims for payment of ancillary defense expenses shall be submitted to the Court within 60 days of the completion of the approved services. Claims must specify the services performed, with dates and hours of service itemized. When travel or mileage is claimed, the locations must be specified. Claims shall be accompanied by all supporting documentation, including original invoices or receipts, and authorizing Court orders.