Section 5 - Experts, investigators, and other support services(a)(1) The court, in an ex parte hearing, may in its discretion determine that investigative or expert services or other similar services are necessary to ensure that the constitutional rights of the defendant are properly protected in the following circumstances: (A) The guilt and sentencing phases of a criminal trial in the criminal or circuit court;(B) The trial of post-conviction proceedings in capital cases involving indigent petitioners;(C) Juvenile transfer proceedings; and(D) Juvenile proceedings where a juvenile's liberty is in jeopardy due to the juvenile being charged with a delinquent offense involving a serious criminal allegation, and as part of an affirmative defense, the juvenile seeks to introduce expert testimony relating to a mental disease or defect bearing upon the issue of whether the juvenile had the mental state required for the offense charged.(2) If such determination is made, the court may grant prior authorization for these necessary services in a reasonable amount to be determined by the court. The authorization shall be evidenced by a signed order of the court. The order shall provide for the payment or reimbursement of reasonable and necessary expenses by the director. See Tenn. Code Ann. § 40-14-207(b); State v. Barnett, 909 S.W.2d 423 (Tenn. 1995); Owens v. State, 908 S.W.2d 923 (Tenn. 1995).(3) In non-capital post-conviction proceedings, funding for investigative, expert, or other similar services shall not be authorized or approved. See Davis v. State, 912 S.W.2d 689 (Tenn. 1995). The exceptions to this provision are:(A) Costs for mental evaluations of a post-conviction petitioner to determine if he or she is competent to assist counsel in preparation for the post-conviction proceeding will be paid pursuant to Tenn. Code Ann. 33-7-301(a)(4)(A). (B) An order issued requiring DNA analysis will be paid on behalf of a petitioner pursuant to the Post-Conviction DNA Analysis Act of 2001, Tenn. Code Ann. § 40-30-301 et seq. Payment shall be made only upon receipt by the director of a certified copy of the order and invoice from the laboratory that conducted the analysis. The bill shall set forth the name of the petitioner, the date the analysis was performed, the amount of the bill, and the name and address of the laboratory to which payment is to be made. Tenn. Code Ann. § 40-30-313. (C) An order issued requiring fingerprint analysis be paid on behalf of a petitioner pursuant to the Post-Conviction Fingerprint Analysis Act of 2021, Tenn. Code Ann. § 40-30-401 et seq. Payment shall be made only upon receipt by the director of a certified copy of the order and bill from the laboratory that conducted the analysis. The bill shall set forth the name of the petitioner, the date the analysis was performed, the amount of the bill, and the name and address of the laboratory to which payment is to be made. Tenn. Code Ann. § 40-30-413.(b)(1) Every reasonable effort shall be made to obtain the services of a person or entity whose primary office of business is within 150 miles of the court where the case is pending. If the person or entity proposed to provide the service is not located within the 150-mile radius, the motion shall explain the efforts made to obtain the services of a provider within the 150-mile radius.(2) Any motion seeking funding for expert or similar services shall itemize: (A) the nature of the services requested;(B) the name, address, qualifications, and licensure status, as evidenced by a curriculum vitae or resume, of the person or entity proposed to provide the services;(C) the means, date, time, and location at which the services are to be provided; and(D) a statement of the itemized costs of the services, including the hourly rate, and the amount of any expected additional or incidental costs.(3) Any motion seeking funding for investigative or other similar services shall itemize: (A) the type of investigation to be conducted;(B) the specific facts that suggest the investigation likely will result in admissible evidence;(C) an itemized list of anticipated expenses for the investigation;(D) the name and address of the person or entity proposed to provide the services; and(E) a statement indicating whether the person satisfies the licensure requirement of this rule.(4) If a motion satisfies these threshold requirements, the trial court must conduct an ex parte hearing on the motion and determine if the requested services are necessary to ensure the protection of the defendant's constitutional rights.(c)Particularized Need Requirement:(1) Funding shall be authorized only if, after conducting a hearing on the motion, the court determines that there is a particularized need for the requested services and that the hourly rate charged for the services is reasonable in that it is comparable to rates charged for similar services.(2) Particularized need in the context of criminal trials and appeals is established when a defendant shows by reference to the particular facts and circumstances that the requested services relate to a matter that, considering the inculpatory evidence, is likely to be a significant issue in the defense at trial, including both the guilt and sentencing phases, and that the requested services are necessary to protect the defendant's right to a fair trial. See Barnett, 909 S.W.2d at 423.(3) Particularized need in the context of capital post-conviction proceedings is established when a petitioner shows, by reference to the particular facts and circumstances of the petitioner's case, that the services are necessary to establish a ground for post-conviction relief and that the petitioner will be unable to establish that ground for post-conviction relief by other available evidence.(4) Particularized need cannot be established and funding requests should be denied where the motion contains only: (A) undeveloped or conclusory assertions that such services would be beneficial;(B) assertions establishing only the mere hope or suspicion that favorable evidence may be obtained;(C) information indicating that the requested services relate to factual issues or matters within the province and understanding of the jury; or(D) information indicating that the requested services fall within the capability and expertise of appointed counsel. See, e.g., Barnett, 909 S.W.2d at 430.(d)(1) The director and/or the chief justice shall maintain uniformity as to the rates paid individuals or entities for services provided to indigent parties. The director will publish on the AOC website standard approved rates as often as determined reasonable by the chief justice. Requests for experts not listed on the published rate list, will be considered on a case by case basis. Appointed counsel shall make every effort to obtain individuals or entities who are willing to provide services at an hourly rate less than the maximum. Subsequent requests for additional funding for the same investigator or expert shall be subject to additional review by the director. (2) For persons or entities compensated at a rate of one hundred dollars ($100) per hour or more, time spent traveling shall be compensated at no greater than fifty percent (50%) of the approved hourly rate.(3) Investigators shall not be compensated unless licensed in the state of Tennessee or exempted from this licensure requirement, except when an investigator licensed in another state is authorized by a court in Tennessee to conduct an investigation in that other state.(4) In a post-conviction capital case, where the Office of the Post-Conviction Defender represents a petitioner, funding for investigative services and expert services and tests shall not be paid pursuant to this rule.(5) In a post-conviction capital case where appointed counsel represents a petitioner, a trial court shall not authorize more than a total of twenty-five thousand dollars ($25,000) for the services of all experts nor more than twenty thousand dollars ($20,000) for investigative services unless, in its sound discretion the trial court determines that extraordinary circumstances exist that have been proven by clear and convincing evidence. (6) If an order is issued requiring payment on behalf of a petitioner who has been sentenced to the death penalty prior to April 28, 2023, for a determination as to whether the defendant is intellectually disabled, payment shall be made by the director only upon receipt of a certified copy of the order and invoice from the expert. The invoice must set forth the name of the petitioner, the amount of the bill, and the name and address of the expert to which payment is to be made. Tenn. Code Ann. § 39-13-203(g)(1)-(3).(7) Expenses shall not be authorized or approved for expert tests or expert services if the results or testimony generated from such tests or services will not be admissible as evidence.(e)(1) If the requirements of sections 5(c) and (d) are satisfied and the motion is granted, the authorization shall be evidenced by a signed order of the court. Unless otherwise indicated in the order, the amount authorized includes both fees and necessary expenses under section 4(a).(2) The order shall include a finding of particularized need and the specific facts that demonstrate particularized need as well as the information required by section 5(b)(1) or (b)(2).(3) The court may satisfy the requirements of subsection (2) above by incorporating and attaching that portion of the defense motion that includes the specific facts supporting the finding of particularized need.(4)Prior Approval by the Director Required: Once the services are authorized by the court in which the case is pending, the order and any attachments must be submitted to the director for prior approval.(5)Review Process if Request is Denied by the Director: If the director denies prior approval of the request and the requesting attorney requests in writing within 10 days of the date of the notice of denial for review of the request by the chief justice, the claim will be transmitted to the chief justice for disposition and prior approval. Review by the Chief Justice is solely limited to the documents originally submitted to the AOC. The determination of the chief justice shall be final. (6)Waiver of Claims: The approved expert or investigator shall file a claim for compensation no later than 180 days after entry of the final order of disposition of the case in each court in which the services were provided. Claims for compensation submitted after the 180-day period shall be deemed waived and will not be paid.As amended by court order filed February 6, 2013, effective 7/1/2013; amended by order October 26, 2021, effective 10/26/2021; amended by order filed October 4, 2024, effective 10/4/2024.Explanatory Comments:
Section 5(a)(1)(E) allows funding for mental health experts in juvenile cases where, pursuant to Tenn. R. Juv. P. 207(b), the juvenile as part of an affirmative defense seeks to introduce expert testimony relating to a mental disease or defect bearing upon the issue of whether the juvenile had the mental state required for the offense charged. Funding for mental health experts is available only after a court approved evaluation as provided in Tenn. Code Ann. § 37-1-128(e)(1) is completed. Section 5(a)(3) unequivocally provides that funding for investigative, expert, or other similar services is not available in non-capital post-conviction proceedings. Section 5(b)(1) explains that counsel must make "every reasonable effort" to obtain the services of experts, investigators or others who are located within 150 miles of the court where the case is pending. Section 5(b)(2) delineates the information that must be included in or submitted with a motion requesting funding for expert or similar services. Section 5(b)(3) delineates the information that must be included in or submitted with a motion requesting funding for investigative or similar services. Section 5(c) provides definitions of particularized need and the standards governing a trial court's consideration of funding requests. Section (5)(d)(1) establishes maximum hourly rates for certain services, instructs the director and the chief justice to maintain state-wide uniformity as to the rates paid for services. The director shall maintain and publish on the AOC website a list of approved maximum hourly rates paid to experts and investigators. Section 5(d)(1) also directs appointed counsel to seek to retain individuals and/or entities willing to provide services at a rate less than the maximum. Section 5(d)(2) establishes permissible compensation rates for travel for experts paid in excess of one hundred dollars ($100) per hour. Section 5(d)(3) establishes the licensure requirements for investigators. Section 5(d)(4) eliminates funding for experts and investigators in all post-conviction capital cases where the petitioner is represented by the Office of the Post-Conviction Defender because it is paid from funds appropriated by the General Assembly on July 1, 2023 to the Office of the Post- Conviction Defender. Section 5(d)(7) precludes funding for expert tests or services if the results of the tests or the expert's testimony is per se inadmissible. Section 5(e)(1)-(3) delineates the information that must be included in or attached to orders authorizing funding. Section 5(e)(4) -(5) sets out the procedure that must be followed in obtaining prior approval of the request. Section 5(e)(5) provides that only those claims denied by the director will be submitted to the chief justice for disposition.