Another factor affecting the cost and complexity of capital cases is the importance of expert testimony in both the guilt and penalty phases. Payments to experts are a substantial component of defense costs in federal death penalty cases. Coopers & Lybrand found that about 19% of payments for representation in federal capital cases for FY 1997 went to services other than counsel: primarily experts and investigators.(36) This figure may understate the total spending on these services, because some of these costs are included as reimbursable expenses on attorney vouchers, rather than in separate vouchers submitted by the expert or investigator.
As with attorney compensation, there were significant differences between cases in which the Attorney General authorized seeking the death penalty, and those in which the death penalty was not authorized. (See Chart C-10.) The average amount spent on non-attorney compensation in cases in which authorization was denied was $10,094, as compared with $51,889 in cases in which authorization to seek the death penalty was granted.
|Average Amount of Non-Attorney Compensation
in Capital and Non-Capital Homicide Cases |
| ||Case Type ||Avg. Amount of |
|Avg. Total Cost |
of Representation (Attorney and Non-Attorney)
|Non-Capital ||Homicides ||$ 1,515 ||$ 9,159 |
|Capital ||Auth. Denied ||$10,094 ||$ 55,773 |
|Auth. Granted ||$51,889 ||$218,113 |
|Capital Trial ||$53,143 ||$269,139 |
|Plea ||$51,028 ||$192,333 |
|Drug Cases ||$52,218 ||$244,186 |
In general, both the prosecution and the defense rely more extensively on experts in death penalty cases than in other federal criminal cases. Although prosecution forensic science experts typically are salaried employees of law enforcement agencies, the defense generally must hire experts who charge an hourly rate for their services. In the guilt phase, the prosecution is likely to call experts to testify about scientific analyses, such as DNA profiling, ballistics comparisons, or hair, fiber, or metallurgical evidence that may connect the defendant to a crime. Other types of experts common in large drug conspiracy cases include experts in the interpretation or authentication of audiotapes, and experts in the structure of drug organizations. To assure the reliability of this evidence and the manner in which it is presented to the jury, defense lawyers must consult with experts in these fields as well.
The defense depends on experts to develop information relevant to sentencing, even before the prosecution makes a final decision about whether to seek the death penalty.
"Because the first job of the defense is to convince the Department of Justice not to certify the case as a capital case, mitigation expenses, including the use of increasingly specialized experts, are increasing and are occurring early in the process."(37) Both the prosecution and the defense also typically hire experts to evaluate the defendant's mental condition in order to develop evidence related to culpability and future dangerousness relevant to the penalty phase. (See Charts C-11 and C-12, comparing expert and investigative costs in federal death penalty cases and non-capital federal homicide cases.)
Two important categories of expert services frequently used in federal death penalty cases but not in non-capital federal criminal cases are mitigation specialists and jury consultants. Mitigation specialists typically have graduate degrees, such as a Ph.D. or masters degree in social work, and have extensive training and experience in the defense of capital cases. They are generally hired to coordinate an investigation of the defendant's life history, identify issues requiring evaluation by psychologists, psychiatrists or other medical professionals, and assist attorneys in locating experts and providing documentary materials for them to review. Although most often they assist counsel in assembling and interpreting the information needed in the penalty phase of a capital case, in some cases mitigation specialists are also called to testify about their findings.
Without exception, the lawyers interviewed by the Subcommittee stressed the importance of a mitigation specialist to high quality investigation and preparation of the penalty phase. Judges generally agreed with the importance of a thorough penalty phase investigation, even when they were unconvinced about the persuasiveness of particular mitigating evidence offered on behalf of an individual defendant. The work performed by mitigation specialists is work which otherwise would have to be done by a lawyer, rather than an investigator or a paralegal. Because the hourly rates approved for mitigation specialists are substantially lower than those authorized for attorneys,(38) the appointment of a mitigation specialist or penalty phase investigator generally produces a substantial reduction in the overall costs of representation.
Jury consultants provide a range of services in federal death penalty cases. They assist in drafting questionnaires for prospective jurors to aid in the jury selection process. The use of questionnaires has become standard in federal capital cases as a way to streamline and expedite the process of jury selection. In addition, in some cases jury consultants are retained to organize and interpret the results of jury questionnaires, advise attorneys about follow-up questions to be asked during the in court voir dire, and to advise the attorneys about whether or not to strike a particular juror. Jury consultants are routinely retained in high stakes civil litigation, and have been engaged by the prosecution in federal death penalty cases. Most of the attorneys interviewed by the Subcommittee were emphatic about the value of jury consultants, and regarded the availability of a jury expert as a top priority. However, some lawyers were willing to forego a jury consultant in order to assure judicial approval of other needed services. Judges generally indicated greater willingness to approve jury consultants when the prosecution retained a jury consultant than when the prosecution did not. (See also Recommendation 7, "Experts," in Part II of this report.)