|Introduced in House||Passed House||Introduced in Senate||Passed Senate||Became Law|
Noncapital cases; ex parte requests for investigative services or expert assistance.
Allows a defendant or his attorney, when such defendant is charged with a noncapital offense and is financially unable to pay for investigative services or expert assistance, to move a court to conduct an ex parte hearing on a request for such services or assistance. For a motion for investigative services, the bill requires a defendant or his attorney to state under oath or in a sworn declaration that a need for confidentiality exists regarding the request for investigative services and, after a hearing upon the motion, the court shall authorize the defendant or his attorney to obtain investigative services upon a showing that the requested services would materially assist the defendant and are necessary in order to guarantee an adequate defense and that the lack of such confidential services would result in a fundamentally unfair trial. For a motion for expert assistance, the bill requires a defendant or his attorney to show, in an adversarial proceeding before the trial judge, a particularized need for confidentiality of the request for expert assistance. Upon a finding, by clear and convincing evidence, that a particularized need for confidentiality of the expert services exists, the court shall hold an ex parte hearing and may order the appointment of a qualified expert upon a showing that the provision of the requested expert services would materially assist the defendant in preparing his defense and the lack of such confidential assistance would result in a fundamentally unfair trial.
Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia is amended by adding in Article 5 of Chapter 15 of Title 19.2 a section numbered 19.2-266.4 as follows:
� 19.2-266.4. Expert assistance for indigent defendants.
A. In any case in which a defendant is (i) charged with a felony offense or a Class 1 misdemeanor and (ii) determined to be indigent by the court pursuant to � 19.2-159, the defendant or his attorney may, upon notice to the Commonwealth, move the circuit court to designate another judge in the same circuit to hear an ex parte request for appointment of a qualified expert to assist in the preparation of the defendants defense. No ex parte proceeding, communication, or request may be considered pursuant to this section unless the defendant or his attorney states under oath or in a sworn declaration that a need for confidentiality exists. A risk that trial strategy may be disclosed unless the hearing is ex parte shall be sufficient grounds to establish a need for confidentiality.
B. Upon receiving the defendants or his attorneys declaration of need for confidentiality, the designated ex parte judge shall conduct an ex parte hearing on the request for authorization to obtain expert assistance. This hearing shall occur as soon as practicable. After a hearing upon the motion and upon a showing that the provision of the requested expert services would materially assist the defendant in preparing his defense and the denial of such services would result in a fundamentally unfair trial, the court shall order the appointment of a qualified expert. Any expert appointed pursuant to this subsection shall be compensated in accordance with � 19.2-332. The designated judge shall direct requests for scientific investigations to the Department of Forensic Science or Division of Consolidated Laboratory Services whenever practicable.
C. All ex parte hearings conducted under this section shall be initiated by written motion and shall be on the record. Except for the initial declaration of need for confidentiality, the record of the hearings, together with all papers filed and orders entered in connection with ex parte requests for expert assistance, all payment requests submitted by experts appointed, and the identity of all experts appointed, shall be kept under seal as part of the record of the case and shall not be disclosed. Following a decision on the motion, whether it is granted or denied, the motion, order or orders, and all other papers or information related to the proceedings or expert assistance sought shall remain under seal. On motion of any party, and for good cause shown, the court may unseal the foregoing records after the trial is concluded.
D. All ex parte proceedings, communications, or requests shall be transcribed and made part of the record available for appellate review or any other post-conviction review.
2. That � 19.2-264.3:1.3 of the Code of Virginia is repealed.
|01/24/2020||Senate||Senate: Assigned Juciciary sub: Criminal Law|
|01/08/2020||Senate||Senate: Prefiled and ordered printed; offered 01/08/20 20103178D|
|01/08/2020||Senate||Senate: Referred to Committee on the Judiciary|