When a criminal defense attorney requires expert assistance for their client but lacks the necessary funds, the question arises: How can they obtain the money to hire a specialist of their choice? The answer lies in the Ake v. Oklahoma motion for expert assistance, a powerful tool in the criminal defense attorney's arsenal, particularly when they're appointed by the court. This motion can compel judges to approve funding for experts, ranging from private investigators to Computer Forensic experts and specialists. It can also be utilized under specific circumstances when a client retains a lawyer but cannot afford an expert.

 

The Significance of the Ake Motion

The Ake motion for expert assistance offers a two-fold advantage. First, it enables the defense attorney to approach the judge ex parte, without the prosecuting attorney's knowledge. This grants the attorney the opportunity to present their defensive theories justifying the expense without the prosecutor's awareness. Second, once the funds are secured, the hired expert becomes an integral part of the defense team, protected by the attorney's work-product privilege. This means the expert cannot disclose any information about their investigation to outsiders without the client's explicit consent.

 

Key Steps in Securing Funding

To compel a judge to approve funding through the Ake motion, a defense lawyer must typically follow specific steps:

  1. Demonstrate Indigence: The attorney must establish that the client is indigent or cannot afford to hire an expert with private funds.  That is not a high burden to meet considering most people can’t afford to pay an expert, let alone their attorney. 
  1. Show Significance: The attorney needs to demonstrate that the need for the digital forensic expert is significant, particularly during the guilt/innocence or punishment phase of the trial. This often involves using the expert witness to rebut the state's case or challenge the prosecutor's forensic experts.  Again, a majority of state’s cases now utilize some form of cell phone forensics, computer forensics, call detail record analysis, or other digital data obtained from digital devices. 
  1. Expert's Qualifications: The defense lawyer must present the expert's qualifications and experience, usually in the form of a resume or vita.  At Black Dog Forensics, we make that easy by simply providing our curriculum vitae to a judge, and in rare cases an affidavit or declaration expressing the significance of the work that needs to be conducted.
  1. Fees and Expenses: An estimate of the expert's fees and expenses is required. This may include a letter from the witness outlining the proposed work, anticipated hours (including trial testimony), and costs.  We provide a proposal that outlines the work required.
  1. Lack of Knowledge: The attorney must assert that neither they nor their client possess sufficient knowledge in the area requiring expert assistance.

 

Cooperation of Judges

Historically, a good majority of judges have been cooperative in granting funds when a legitimate need is appropriately established through an Ake motion. While some debate over costs may occur, and pressure may be exerted to persuade the expert to work for less, the request is typically approved. Even if the judge denies funding, it provides the defense lawyer with a basis for appeal.

 

With funding secured for a chosen expert, a lawyer can engage Black Dog Forensics and provide their client with a more effective defense. This funding procedure, often used in court-appointed cases, may also be applicable in retained cases if the lawyer can demonstrate their client's financial constraints.

 

Payment of Expert

Often times it is difficult to engage an expert to accept a case involving funding from an Ake motion because payment can be slow and require additional paperwork.  At Black Dog Forensics we work with attorneys and courts to determine payment terms and extend payment deadlines beyond the typical due date for payment so we can help our clients.

 

In conclusion, the importance of engaging a qualified Digital Forensic Expert in your criminal case cannot be overstated.  Often times the accused may fear how to pay for proper defense, but through the use of an Ake Motion you can properly retain a Computer Forensic Expert.  It has become an indispensable tool for attorneys and the accused, offering a pathway to uncovering the truth and delivering justice.

 

Black Dog Forensics is here to support these efforts by providing top-tier digital forensic services to include cell phone forensics, CDR analysis, computer forensics, and other digital forensic services. We are committed to delivering ethical, expert solutions to our clients, and our expertise extends nationwide. 

 

To learn more about the services we offer, please click here. If you have questions, or need examples of Ake motions we'd be happy to hear from you. Please feel free to call us at (346) 200-6097 or email retrievethetruth@bdforensics.com.

 

In the pursuit of justice, the role of computer forensic and cell phone forensics is pivotal. As technology continues to advance, so does our ability to uncover the truth, and Black Dog Forensics we stand with your defense attorneys, ensuring that individuals receive a fair and effective defense, regardless of their financial situation. This empowers attorneys to provide comprehensive legal representation and fosters a more equitable criminal justice system.