Chapter 3, § 320: Authorization of Investigative, Expert, and Other Services
Guide to Judiciary Policy, Vol 7 Defender Services, Part A Guidelines for Administering the CJA and Related Statutes, Chapter 3: Authorization and Payment for Investigative, Expert, or Other Services
§ 320.10 Investigators
§ 320.15 Interpreters
§ 320.20 Psychiatrists, Psychologists
§ 320.30 Transcripts
§ 320.40 Fact Witnesses and Depositions
§ 320.50 Guardian Ad Litem
§ 320.60 Commercial Computer-Assisted Legal Research Services
§ 320.70 Other Services and Computer Hardware and Software
§ 320.80 Reimbursement of Expenses
§ 320.90 Record Keeping
§ 320 Authorization of Investigative, Expert, and Other Services
When necessary to an adequate representation as described above, the court may authorize, under 18 U.S.C. § 3006A(e), the services of an investigator.
§ 320.15.10 Terms of Compensation
(a) Interpreting services provided under the CJA may be compensated:
- according to the terms and conditions set forth in the court interpreter services contract;
- on an hourly rate basis; or
- on another appropriate basis.
(b) Interpreters should be compensated consistently throughout the district or, if applicable, in individual court locations.
§ 320.15.20 Reviewing the Rate of Compensation
(a) In determining the reasonableness of rates paid to interpreters under the CJA, courts should utilize either:
(1) the half- and full-day rates established by the Director for contract court interpreters performing in-court services; or
(2) an hourly rate. The half- and full-day rates (prorated hourly) or the hourly overtime rate should be used as a guidepost for the reasonableness of the hourly rate.
(b) Justification should be submitted to the presiding judicial officer if compensation is sought for an interpreter by a method different from or in an amount in excess of presumptive or maximum rates adopted by a court.
(c) Appointed counsel may negotiate rates with the interpreter consistent with the guidance contained in this section.
§ 320.15.30 Overlap of Billing Time Periods
(a) Contract court interpreters must not bill or receive funds from any other federal court unit, federal public defender, community defender organization, or other attorneys or entities obtaining interpreting services under the CJA or related statutes for any services rendered during the same half- or full-day for which the contract court interpreter is being compensated pursuant to the court interpreter services contract. See: Guide, Vol 5, § 220.30.20. Thus, an interpreter retained by the court under the court contract for a one-half or full-day period may not bill the CJA for any work performed during that same half-day or full-day period even if the court no longer requires the interpreter's services.
(b) An interpreter billing on a half- or full-day rate basis, hourly basis, or other unit of time under the CJA must not charge any other federal court unit, federal public defender, community defender, CJA panel attorney, or other person or entity otherwise authorized by the court to obtain the services of an interpreter under the CJA or related statutes for any services rendered within the same time period.
(c) When an interpreter is invoicing under the CJA on a half-day rate basis and works one half-day for a court unit and another half-day for a CJA representation, or is invoicing two separate half-days for different CJA representations, then the first half-day should be billed at the half-day rate and the second at the difference between the half-day and full-day rates, unless otherwise negotiated.
(d) It is permissible to prorate compensation among more than one CJA representation (but expenses must be invoiced to one CJA representation) or to apportion compensation, including expenses, between a CJA representation and a non-CJA purpose (not including a federal court unit). See: § 310.65.
§ 320.20 Psychiatrists, Psychologists
§ 320.20.10 Type of Examinations
Chapter 313 of Title 18, as amended by the Insanity Defense Reform Act of 1984 (Chapter IV of the Comprehensive Crime Control Act of 1984), provides for court-directed psychiatric or psychological examination of individuals in connection with the various proceedings to determine mental condition authorized under that chapter. The functions of these separate proceedings are to determine:
(a) the mental competency of a defendant to stand trial (18 U.S.C. § 4241);
(b) insanity at the time of the offense (18 U.S.C. § 4242);
(c) the mental condition of an acquitted person hospitalized following a finding of not guilty only by reason of insanity (18 U.S.C. § 4243);
(d) the present mental condition of a convicted defendant (18 U.S.C. § 4244);
(e) the present mental condition of an imprisoned person who objects to transfer to a treatment facility (18 U.S.C. § 4245); and
(f) the present mental condition of a hospitalized person due for release (18 U.S.C. § 4246).
In addition, mental condition examinations may be conducted for purposes other than those specified in 18 U.S.C. chapter 313, e.g., to aid the defendant in preparing a defense.
(a) CJA funds are used to pay for psychiatric and related services obtained in accordance with 18 U.S.C. § 3006A(e) upon a determination that the services are "necessary for an adequate defense." These are "defense" services, where the defendant selects the expert and controls the disclosure of the expert's report.
(b) It is important to note that psychiatrists and related experts may be used in many circumstances in which payment is made from a source other than the CJA appropriation. In these situations, the court or the government selects the expert and persons other than the defendant also have access to the expert's report. The Department of Justice (DOJ) generally pays for these "non-defense" services. The chart in § 320.20.60 summarizes payment responsibility for the various circumstances in which psychiatric and related services are utilized.
(c) Court-ordered presentence examinations and reports under 18 U.S.C. § 3552(c) are not paid by the CJA appropriation. However, funding for these examinations is available from the AO. Courts should contact the AO’s Probation and Pretrial Services Office at 202-502-1600 for guidance.
§ 320.20.30 Limitation of Amount
The limitations contained in § 310.20 apply to compensation claims submitted by "defense" psychiatrists and related experts, to be paid out of the CJA appropriation. For information regarding "dual purpose" examinations, see: § 320.20.50.
§ 320.20.40 Procedures for Payment
(a) CJA Appropriation – Defense Services
(1) eVoucher should be used for all payments for "defense" services in non-capital cases. See also: Form CJA 21 (Authorization and Voucher for Expert and Other Services).
(2) eVoucher should be used for all payments for "defense" services in death penalty cases. See also: Form CJA 31 (Death Penalty Proceedings: Ex Parte Request for Authorization and Voucher for Expert and Other Services).
(3) eVoucher submissions of form CJA 21 or CJA 31 should clearly describe the purpose of the expert's service.
(4) If separate vouchers are submitted for examination and testimony, they should be cross-referenced by voucher number.
(b) DOJ
Compensation claims for psychiatric and related services to be paid for by the DOJ should be referred to the U.S. attorney or assistant U.S. attorney.
§ 320.20.50 Dual Purpose Examinations
(a) On occasion, a psychiatrist or related expert will be asked to examine an individual for both a "defense" purpose and a "non-defense" purpose. In these cases, the defense has waived the confidentiality of the "defense" portion of the examination. In such dual purpose examinations, for the convenience of the expert providing the service, the entire compensation claim may be submitted through eVoucher using Form CJA 21, or, in a death penalty proceeding, Form CJA 31. The CJA will pay the expert the total amount approved and obtain reimbursement to the CJA appropriation from the DOJ for one-half of the cost. As a result of the AO's need to seek reimbursement from the DOJ, claims submitted for dual purpose examinations must be accompanied by separate court orders that indicate:
- who requested the examination;
- the specific purpose(s) of the examination;
- to whom the examination is directed; and
- to whom copies of the report are to be given.
(b) The limitation in § 320.20.30 applies to 50 percent of the claim for a dual purpose examination in which a portion of the examination is for "defense" purposes.
(c) In some "dual purpose" examinations both portions of the examination are chargeable to the same payment source. For instance, if the examination included evaluation of competency to stand trial under 18 U.S.C. § 4241 and evaluation of sanity at the time of the offense under 18 U.S.C. § 4242, the DOJ would be responsible for both portions of the examination and the entire compensation claim should be submitted to the U.S. attorney or assistant U.S. attorney.
| Type of Service | CJA | DOJ |
|---|---|---|
|
(a) To determine mental competency
(2) Testimony costs for examiner if |
|
If witness appears on behalf of |
|
(b) To determine existence of insanity at time of offense, under 18 U.S.C. § 4242 (1) Examination costs (2) Testimony costs for examiner if called at trial |
Yes Yes, regardless of which party calls |
|
|
(c) To determine existence of insanity at time of offense, under CJA subsection (e)
(1) Examination costs (2) Testimony costs for examiner if called at trial |
Yes Yes |
|
|
(d) To determine mental condition of hospitalized person found not guilty only by reason of insanity, under 18 U.S.C. § 4243
(1) Examination costs (2) Testimony costs for examiner if called at hearing |
Yes, regardless of which party calls |
|
|
(e) To determine mental condition of convicted person suffering from mental disease or defect, under 18 U.S.C. § 4244
(1) Examination costs (2) Testimony costs for examiner if called at hearing |
Yes
|
|
|
(f) To determine mental condition of imprisoned person, under 18 U.S.C. § 4245
|
Yes, including costs of additional examiner selected by imprisoned person in accordance with 18 U.S.C. § 4247(b)
|
|
|
(g) To determine mental condition of hospitalized person due for release, under 18 U.S.C. § 4246
(1) Examination costs
(2) Testimony costs for examiner if called at hearing |
Yes, including costs of additional examiner selected by hospitalized person in accordance with 18 U.S.C. § 4247(b)
|
|
| (h) Examination of a person in custody as a material witness | Yes, under all circumstances | |
| (i) Examination and testimony costs for expert witnesses not appointed under 18 U.S.C. §§ 4241, 4242, 4243, 4244, 4245, 4246 | If requested by the defense | If requested by the government, or if appointed as an independent expert on court's own motion under Fed. R. Evid. 706 |
§ 320.30.10 Authorization and Payment
(a) For panel attorneys, the preferred method for payment of transcripts authorized by the court is for the court reporter or reporting service to claim compensation directly through eVoucher’s Authorization and Voucher for Payment of Transcript (Form CJA 24). Alternatively, the panel attorney may pay for transcripts for non-federal court proceedings and obtain reimbursement as an “out-of-pocket expense” in the eVoucher system using Form CJA 20. See: Guide, Vol 7A, § 230.63.20 and and § 320.30.40. Regardless of which method is used, the limitations set forth in § 310.20 and the $7,500 limitation set forth in Guide, Vol 7A, Ch 6 are inapplicable with regard to the cost of transcripts.
(b) In a direct appeal in a case in which counsel is assigned under the CJA, neither the CJA nor 28 U.S.C. § 753(f) requires the signing of a pauper's oath or certification by the court that the appeal is not frivolous in order to obtain a transcript.
(c) For procedures regarding federal defender organization transcript payments, see: Guide, Vol 7A, § 430.10.
§ 320.30.20 Accelerated Transcript Costs
Routine apportionment of accelerated transcript costs among parties in CJA cases is prohibited. The following resolution was adopted by the Judicial Conference in March 1980, and modified in September 1986:
|
That the furnishing of accelerated transcript services in criminal proceedings should be discouraged; however, recognizing that there are some circumstances in which such transcript services are necessary and required by either the prosecution or the defense, or both, accelerated transcript services may be provided. That in those cases where accelerated transcript services are provided, the party from whom the request or order emanates shall pay for the original, and if the requesting or ordering party is other than defense counsel appointed under the Criminal Justice Act, the CJA counsel shall be entitled to a copy at the copy rate. That the present practice, in some districts, of routinely apportioning the total cost of accelerated transcript services equally among the parties should be abandoned. |
See: JCUS-SEP 1986, p. 90.
§ 320.30.30 Commercial Duplication in Multi-Defendant Cases
(a) In multi-defendant cases involving CJA defendants, no more than one transcript should be purchased from the court reporter on behalf of CJA defendants. The appointed counsel or the clerk of court should share an electronic copy with each of the CJA defendants for whom a transcript has been approved. If the transcript was provided in printed format, counsel should arrange for duplication at commercially competitive rates. The cost of such duplication will be charged to the CJA appropriation. This policy would not preclude the furnishing of duplication services by the court reporter at the commercially competitive rate.
(b) In individual cases involving requests for accelerated transcripts, the court may grant an exception to the policy set forth in (a) of this subsection based upon a finding that application of the policy will unreasonably impede the delivery of accelerated transcripts to persons proceeding under the CJA. Such finding should be reflected on the transcript voucher.
§ 320.30.40 Standards for Transcripts of Other than Federal Court Proceedings
In negotiating agreements and contracts for providing transcripts of other than federal court proceedings, including, for example, transcription or translation of wiretap recordings, it is recommended that the standards for the size and format of a page be the same as those used for transcripts of federal court proceedings.
§ 320.40 Fact Witnesses and Depositions
§ 320.40.10 Fees and Expenses of Fact Witnesses
(a) Generally speaking, fees and expenses of fact witnesses for defendants proceeding under the CJA are paid by the DOJ. See: Fed. R. Crim. P., Rule 17(b); 28 U.S.C. § 1825.
(b) Section 1825 of 28 U.S.C. specifically provides for the payment of witness fees by the DOJ in all federal criminal proceedings, and in proceedings for a writ of habeas corpus or in proceedings under section 2255 of that title upon certification of a federal public defender or assistant federal public defender, or clerk of court upon the affidavit of other counsel appointed under the CJA.
(c) If advance witness travel funds are required, the court should issue the subpoena order, so stating, to authorize the travel advance by the marshal. These expenses will not be paid from CJA funds.
Depositions are covered by Fed. R. Crim. P., Rule 15, rather than 18 U.S.C. § 3503 (repealed).
(a) Expenses incurred in the taking of fact witness depositions (notarial fees, interpreters, transcripts, etc.) are paid by the DOJ, regardless of which party requested the deposition.
(b) The costs of attendance of fact witnesses for either party at the deposition are paid by the DOJ under Rule 17(b).
(c) The costs of attendance of expert witnesses for the defense at the deposition are paid under the CJA.
(d) Reasonable travel and subsistence expenses incident to attendance of counsel and the defendant at the deposition are paid by the DOJ (1) if the government is the requesting party, or (2) if the defendant is the requesting party and is unable to bear the deposition expenses, based on resources that would be used to determine financial eligibility for appointed counsel. However, it should be noted that the presence of the defendant is not essential to defense depositions since the confrontation clause only requires the defendant's presence if the depositions are intended to be used against the defendant.
§ 320.40.30 Travel Expenses, Subsistence, and Fees of Counsel in Habeas Corpus Cases
In habeas corpus and 28 U.S.C. § 2255 cases, the court may order the state or the government to pay the "expenses of travel and subsistence and fees of counsel" to attend the taking of a deposition at the request of the state or government. See: Rules Governing §§ 2254 and 2255 Cases in U.S. District Courts, Rule 6.
§ 320.50.10 Proceedings Involving Juveniles
(a) A guardian ad litem appointed under 18 U.S.C. § 5034 is not eligible for compensation under the CJA or any other appropriated source. Any person who is appointed as both counsel and guardian ad litem in one case under § 5034 should prorate time spent fulfilling the duties of these two offices. Only time spent as counsel on a case is compensable and should be reflected on the CJA claim.
(b) A guardian ad litem appointed for a child victim or witness under 18 U.S.C. § 3509(h) must be compensated through decentralized court funds using BOC 2559, not the CJA or the attorney admission fund.
§ 320.50.20 Prisoner Transfer Proceedings
A guardian ad litem appointed in proceedings to verify consent of a minor or incompetent prisoner to transfer from the United States to a foreign country is eligible for compensation under the CJA under 18 U.S.C. § 4109(b). See: Guide, Vol 7A , § 230.23.20(d) on compensation limits and Guide, Vol 7B (International Prisoner Transfer Proceedings).
§ 320.60 Commercial Computer-Assisted Legal Research Services
(a) The court may authorize counsel to obtain computer-assisted legal research services, where the research is performed by employees of a commercial legal research firm or organization rather than by appointed counsel, provided that the total amount charged for computer-assisted legal research services is reasonable. Requests by counsel for authority to obtain such computer-assisted legal research services should include: a brief explanation of the need for the research services; and an estimate of the charges.
(b) Claims for compensation for such services should be submitted through eVoucher using Form CJA 21 (Authorization and Voucher for Expert and Other Services), or, in a death penalty proceeding, Form CJA 31 (Death Penalty Proceeding: Ex Parte Request for Authorization and Voucher for Expert and Other Services). For information concerning reimbursement for the cost of direct use, by appointed counsel, of computer-assisted legal research services see: Guide, Vol 7A, § 230.63.30.
§ 320.70 Other Services and Computer Hardware and Software
§ 320.70.10 Other Services
In addition to investigators, psychiatrists, psychologists, and reporters, services other than counsel may include, but are not necessarily limited to:
- interpreters;
- computer systems and automation litigation support personnel and experts;
- paralegals and legal assistants, including law students;
- neurologists and other medical experts; and
- laboratory experts in such areas as ballistics, fingerprinting, and handwriting.
§ 320.70.20 Notarial and Stenographic Expenses
The use of CJA funds is authorized to pay expenses of eligible defendants for stenographic and notarial expenses required to perpetuate and authenticate testimony of expert witnesses for such defendants.
§ 320.70.30 Extraordinary Office Expenses
(a) CJA attorneys are expected to use their own office resources, including secretarial help, for work on CJA cases. See: Guide, Vol 7A, § 230.66.10.
(b) However, unusual or extraordinary expenses of these types may be considered "other services necessary for an adequate defense" and may be paid from CJA funds under 18 U.S.C. § 3006A(e).
(c) In determining whether the expense is unusual or extraordinary, consideration should be given to whether the circumstances from which the need arose would normally result in an additional charge to a fee-paying client over and above that charged for overhead expenses. See: Decision of the Comptroller General, B-139703, Feb. 28, 1974, 53 Comp. Gen. 638.
§ 320.70.40 Computer Hardware, Software, or Litigation Support Services
(a) Overview
(1) Providing an adequate defense may require CJA panel attorneys to utilize computer hardware, software, or litigation support services not typically available in a law office. In such cases, following the standards in § 320.70.30, counsel may apply to the court for authorization of CJA funds for the acquisition of such property or services.
(2) Before seeking court approval for any computer hardware or software with a cost exceeding the limitations in § 310.20.30(a), or for the utilization of computer systems, litigation support products, services, personnel, or experts with an expected combined cost exceeding $10,000, appointed counsel must consult the National Litigation Support Team in the AO's Defender Services Office (phone number: 510-637-3500) for guidance. Counsel must inform the court in writing of the Defender Services Office's' advice and recommendation regarding counsel's proposed expenditure. See also: Appx 3D (Sample Order Authorizing the Acquisition of Computer [Hardware and/or Software] under the CJA).
(b) Acquisition of Computer Hardware and/or Software
(1) The request for acquisition of the computer hardware and/or software, or for the procurement of litigation support services should be submitted through eVoucher using Form CJA 21 (Authorization and Voucher for Expert and Other Services), or, in a death penalty proceeding, Form CJA 31 (Death Penalty Proceedings: Ex Parte Request for Authorization and Voucher for Expert and Other Services).
(2) Property purchased with CJA funds is property of the United States and remains so after the case is completed.
(3) When property is purchased, counsel must provide the Defender Services Office with a copy of the following documents to ensure the property is properly accounted for: a copy of the court's order approving the request; a copy of the completed Form CJA 21 (or Form CJA 31); the purchase order from the vendor and any receiving documents, such as a copy of the packing slip or the company's invoice.
(4) Because computer hardware or storage devices being used by counsel may contain confidential or privileged information, all case-related materials must be removed before the hardware is returned as described below. Unless otherwise required by the court or by law, counsel should retain copies, electronic or otherwise, of the case-related materials for the client's file.
Note: When large amounts of electronic information are placed on drives or storage devices purchased with CJA funds, counsel may apply to the court to retain the drive or an alternative drive as the most cost-effective and efficient method for preserving the data.
(5) Upon the completion of the case, counsel must contact the National Litigation Support Team in the Office of Defender Services at (510) 637-3500 for instructions on returning any software, and directions for deleting case-related material from any hardware and returning it to the National Litigation Support Team for the permanent removal of case-related material. If appointed counsel has acquired software, then counsel should provide all accounting information for the software, including any serial numbers, activation codes, or other identifying information, and remove the software from his or her machines. If appointed counsel acquired computer hardware, it must be returned in good condition.
§ 320.70.50 Paralegals, Legal Assistants, and Other Non-Secretarial Support
(a) For services of paralegals, legal assistants, and other non-secretarial professional support personnel employed by appointed counsel, the court will determine a reasonable hourly compensation rate that may not exceed the lesser of the rate paid to counsel under the CJA or the rate typically charged by counsel to a fee-paying client for such services.
(b) Authorizing compensation at such rates should result in greater efficiency and lower costs for the CJA program than would occur if counsel performed and charged for these services.
§ 320.80 Reimbursement of Expenses
§ 320.80.10 Determination of Reasonableness
In determining the reasonableness of expenses of persons furnishing investigative, expert, or other services, claimants and the court should be guided by the provisions of these Guidelines regarding reimbursement of expenses of counsel. See: Guide, Vol 7A, § 230.63 and § 230.66. Gross receipts or other taxes levied on fees for expert services rendered under the CJA are not reimbursable expenses.
§ 320.80.20 Government Travel Rates
(a) Federal law authorizes experts and other service providers traveling primarily in connection with carrying out responsibilities under the CJA the use of government travel rates from common carriers and lodging providers. See: 18 U.S.C. § 3006A note.
(b) Government rates may provide substantial cost reductions or increased flexibility over ordinary commercial rates. To obtain such rates, service providers must obtain prior approval from the appointing authority. Government contract airfares must be booked through the carrier or a judiciary contract travel management center using the court’s centrally billed account.
(a) Investigative, expert, and other service providers must maintain contemporaneous time and attendance records for all work billed by them, as well as expense records.
(b) Such records are subject to audit and must be retained for three years after approval of the appointed counsel's or the service provider's final voucher, whichever is later, for a representation.
Chapter Appendices
Appx 3A: Sample Request for Advance Authorization for Investigative, Expert or Other Services (pdf)(word)
Appx 3B: Procedures for Interim Payments to Service Providers In Non-Death Penalty Cases (pdf)(word)
Appx 3C: Procedures for Interim Payments to Service Providers in Capital Proceedings (pdf)(word)
Appx 3D: Sample Order Authorizing the Acquisition of Computer [Hardware and/or Software] Under the CJA (pdf)(word)
Last revised (Transmittal 07-016) April 2, 2024