With few exceptions, many jurisdictions around the country are limiting defense expenditures across the board; creating extraordinarily difficult situations (at best) for attorneys working to assure their clients receive effective representation under the law in accordance with Amendment 5, Trial and Punishment (ratified 1791) of the U. S. Constitution, Bill of Rights. The ability to secure expert witness testimony, perform medical, psychological or neuropsychological evaluations, or explore critical elements of the presenting offense with competent individuals or contractors is being significantly hindered by either capitation of funding for services, or outright denial of the requests for same. Hence, the attorney’s ability to present a competent, viable defense protocol for his client is often contingent on the utilization of available funding for specific services and the quality of the contractor it will procure. In one northern California community this has translated in the last year to a capitation of funding for PC 1368, Competency to Stand Trial evaluations, at $450 all inclusive. At the median rate charged by many forensic experts, the rate of remuneration may not even cover the travel expenses dependent upon the geography involved!
One option for addressing diminished funding for criminal defense teams is the utilization of the case consultant, as opposed to a host of contracted ‘experts’ over the course of the defense’s preparation of the case. The utilization of the case consultant in capitol cases was first presented at the National Association of Criminal Defense Lawyers Annual Conference in Monterey California a few years back to a relatively luke warm reception. The predictable concerns regarding discovery and the evidentiary code were raised allowing for a critical distinction between the case consultant and the ‘expert’; being that the latter were subject to the Rules of Discovery, whereas the Case Consultants are not when utilized properly. So how would one utilize a case consultant and what is the difference between a case consultant and a trial consultant? Trial Consultants have been around for many years and tend to focus on assisting counsel (civil or criminal) develop a strategy to proffer their case, with jury selection, arbitration and the development of case presentation materials.
Case consultants by comparison are focused on working with counsel to solidify the defense team through the development of a common language with the defendant that assures comprehension of communications, containment and management over the course of the judicial process. This is especially useful in avoiding the quickly escalating costs associated with an Not Guilty By Reason of Insanity (NGI) evaluation in the midst of an already prohibitive capitol, or death penalty case. By working with lead counsel, the case consultant becomes the primary resource, psychologically and dynamically, for the defendant to function as a critical member of the defense team. Additionally, the case consultant assists lead counsel in the evaluation of factors of mitigation by identifying and interpreting relevant contemporary research, clinical data and psychometric measures. By working closely with lead counsel in the identification and definition of the expert contingency for both the trial and mitigation phases, the case consultant is able to minimize the systemic conflicts that can often arise between experts, team members ( i.e. investigators, technicians, etc.) and the defendant.
All of this however, is not without a certain degree of caution. Yes, a case consultant is substantially more affordable than the retention of a host of ‘experts’ or a firm specializing in ‘trial consultant’ services. The cautionary note principally involves Rule 26; Duty to Disclose; General Provisions Governing Discovery (1) (2) & (4) of the Federal Rules of Civil Procedure, wherein ineffective management of the case consultant could inevitably result in their “discovery” if their contributions to the case significantly altered the testimony via beliefs, perceptions, opinions or attributions of causality of the testifying experts. In the first few cases wherein I was employed in this capacity (two death penalty cases and one capitol case), the learning curve for both lead counsel and I was steep as regards the interface with the legal team during team meetings. This became especially poignant when team members blurred the practice lines of their positions in their ‘passion’ for the case(s) resulting on one occasion, in loss of containment of the defendant.
In many capitol/death penalty cases there are a host of team members working on behalf of the defendant, under the direction, (ideally) of lead counsel; each logging variable amounts of face-to-face time with the defendant, often in excess of what is even remotely possible by lead counsel. When these interactions are not coordinated, or often times scripted (via language utilized and themes covered), containment of the defendant and preservation of the integrity of discoverable material can quickly become problematic. Lead defense attorneys often struggle with allotting the time in face-to-face contacts with the defendant as they are often heavily involved in case preparation and management of the team. A significant portion of these interactions often falls to co-counsel, or when utilized and available, co-counsel in tandem with the case consultant. Arguably, the relationship between lead counsel and the defendant is critical to the case formulations and subsequent defense strategy developed. However, even in the most well-funded cases, time spent with the defendant is not enough in and of itself to assure a team’s effectiveness in the development of an effective strategy of defense or mitigation. Effective communication amongst all members of the team including the defendant (via a common language central to the defendant’s comprehension), allows for clarity of the working relationships within the team and an optimization of the skills and abilities inherent in same.
The utilization of case consultation is obviously not warranted in all criminal proceedings. However, in those instances wherein funds are limited and the reasonable risk is high, a case consultant may prove one of the most effective methods of optimizing on limited resources to assure a competent defense on behalf of the defendant.