B-139703, AUG 25, 1970, 50 COMP GEN 128

B-139703, AUG 25, 1970, 50 COMP GEN 128

COURTS - COSTS - GOVERNMENT LIABILITY - INDIGENT PERSONS - APPROPRIATION CHARGEABLE THE PSYCHIATRIC EXAMINATION OF A CRIMINAL DEFENDANT TO DETERMINE HIS MENTAL COMPETENCY TO UNDERSTAND THE PROCEEDINGS AGAINST HIM OR ASSIST IN HIS OWN DEFENSE AUTHORIZED BY SUBSECTION (E) OF THE CRIMINAL JUSTICE ACT OF 1964, 18 U.S.C. 3006 AE), PROVIDING FOR INVESTIGATIVE, EXPERT, OR OTHER SERVICES NECESSARY TO AN ADEQUATE DEFENSE TO 18 U.S.C. 4244, AND THE SUBPOENA OF WITNESSES AT NO COST TO THE DEFENDANT AUTHORIZED UNDER RULE 17(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE WHEN A DEFENDANT IS FINANCIALLY UNABLE TO PAY THE FEES OF THE WITNESS WHOSE PRESENCE IS NECESSARY TO AN ADEQUATE DEFENSE ARE DISTINCT SERVICES FOR PAYMENT PURPOSES. SERVICES PURSUANT TO THE 1964 ACT ARE PAYABLE BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS AND THOSE RENDERED IN ACCORDANCE WITH RULE 17(B) ARE PAYABLE BY THE DEPARTMENT OF JUSTICE. APPROPRIATIONS - AVAILABILITY - INDIGENT PERSONS - COURT COSTS THE COST OF A PSYCHIATRIC EXAMINATION OF AN INDIGENT CRIMINAL DEFENDANT FOR THE PURPOSE OF ESTABLISHING INSANITY AT THE TIME AN OFFENSE IS COMMITTED IS PAYABLE FROM THE FUNDS APPROPRIATED FOR THE IMPLEMENTATION OF THE CRIMINAL JUSTICE ACT OF 1964 BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, AND THE COST OF AN EXAMINATION TO DETERMINE A DEFENDANT'S MENTAL COMPETENCY TO STAND TRIAL FOR THE PURPOSES OF 18 U.S.C. 4244 IS AN EXPENSE TO BE BORNE BY THE DEPARTMENT OF JUSTICE IN ACCORDANCE WITH THE GUIDELINES ISSUED BY THE JUDICIAL CONFERENCE OF THE UNITED STATES IN RECOGNITION OF THE DISTINCTION BETWEEN THE TWO PURPOSES SERVED BY A PSYCHIATRIC EXAMINATION. WHERE AN EXAMINATION SERVES A DUAL PURPOSE, THE COST TO DETERMINE COMPETENCY TO STAND TRIAL SHOULD BE BORNE BY JUSTICE AND THE ADDITIONAL EXPENSE TO DETERMINE INSANITY AT THE TIME OF THE OFFENSE TO THE CRIMINAL JUSTICE ACT APPROPRIATION. COURTS - CRIMINAL JUSTICE ACT OF 1964 - PSYCHIATRIC EXAMINATIONS THE FEE PAYABLE TO A PSYCHIATRIST APPOINTED ON AN INDIGENT DEFENDANT'S MOTION TO CONDUCT A MENTAL EXAMINATION FOR TESTIFYING AT THE TRIAL IS PAYABLE BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS FROM APPROPRIATIONS MADE TO IMPLEMENT THE CRIMINAL JUSTICE ACT OF 1964, AS THE PSYCHIATRIST TESTIFIED AS AN EXPERT WITNESS AND NOT AS A LAY WITNESS WHOSE FEES ARE PRESCRIBED BY RULE 17(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. THE PURPOSE OF THE 1964 ACT IS TO ASSURE ADEQUATE REPRESENTATION IN THE FEDERAL COURTS OF ACCUSED PERSONS WITH INSUFFICIENT MEANS, AND THE END PRODUCT OF AN ADEQUATE DEFENSE IS NOT INFREQUENTLY REPRESENTATION AT TRIAL, AND THAT IS SO FOR THE CONSULTED EXPERT AS WELL AS FOR COUNSEL. COURTS - CRIMINAL JUSTICE ACT OF 1964 - EXPENSE LIMITATION WHERE THE EXPERT SERVICES AUTHORIZED BY SUBSECTION (E) OF THE CRIMINAL JUSTICE ACT OF 1964 ARE REQUESTED BY AN INDIGENT DEFENDANT'S COUNSEL, AND THE EXPENSES INCURRED EXCEED THE $300 MAXIMUM ALLOWABLE UNDER THE ACT, THE DEPARTMENT OF JUSTICE IS NOT OBLIGATED UNDER RULE 17(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE TO PAY ALL OR PART OF THE EXPENSES. A PROPER APPROACH TO THE LIMITATION IMPOSED BY THE ACT IS NOT TO DISREGARD THE LIMITATION BUT TO AMEND SUBSECTION (E) OF THE 1964 ACT. COURTS - PROBATIONAL PROCEEDINGS - PSYCHIATRIC EXAMINATIONS WHERE A PROBATIONER CHARGED WITH VIOLATION OF HIS PROBATION CONDITIONS MOVES FOR A PSYCHIATRIC EXAMINATION, THE EXAMINATION FEE IS PAYABLE BY THE DEPARTMENT OF JUSTICE WHEN THE PSYCHIATRIC SERVICES INVOLVE AN 18 U.S.C. 4244 PROCEEDING TO DETERMINE THE DEFENDANT'S MENTAL COMPETENCY FOR THE PURPOSE OF CONTINUING THE HEARING FOR THE REVOCATION OF THE PROBATION. COURTS - PROBATIONAL PROCEEDINGS - RIGHT TO LEGAL REPRESENTATION IN VIEW OF MEMPA V RHAY, 389 U.S. 128 (1967), INVOLVING THE RIGHT TO COUNSEL IN A PROBATION REVOCATION COUPLED WITH A DEFERRED SENTENCING PROCEEDING, 45 COMP. GEN. 780 (1966), NEED NO LONGER BE CONSIDERED CONTROLLING IN CONNECTION WITH PROCEEDINGS INVOLVING DEFERRED SENTENCING, WHETHER OR NOT SUCH PROCEEDINGS ARE COUPLED WITH A REVOCATION OF PROBATION, BUT THE DECISION REMAINS IN EFFECT INSOFAR AS SIMPLE REVOCATION OF PROBATION PROCEEDINGS ARE CONCERNED. WHETHER THE COST OF THE PSYCHIATRIC EXAMINATION IS FOR PAYMENT UNDER THE CRIMINAL JUSTICE ACT OR UNDER 18 U.S.C. 4244, DEPENDS ON THE PURPOSE OF THE EXAMINATION; THAT IS, WHETHER IT IS INTENDED TO ESTABLISH THE INSANITY OF THE DEFENDANT AT THE TIME OF THE OFFENSE OR SERVES AS A TOOL FOR HIS DEFENSE.

TO THE ATTORNEY GENERAL, AUGUST 25, 1970:

THIS IS IN RESPONSE TO A REQUEST DATED APRIL 9, 1970, FROM THE ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION, FOR OUR VIEWS ON A NUMBER OF QUESTIONS CONCERNING THE RESPECTIVE FINANCIAL RESPONSIBILITIES OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS AND THE DEPARTMENT OF JUSTICE FOR PSYCHIATRIC AND OTHER EXPERT SERVICES IN PROCEEDINGS INVOLVING PERSONS WITHIN THE PURVIEW OF THE CRIMINAL JUSTICE ACT OF 1964, 18 U.S.C. 3006A.

THE CRIMINAL JUSTICE ACT OF 1964, WHICH BECAME EFFECTIVE AUGUST 20, 1965, SEEKS TO PROVIDE ADEQUATE REPRESENTATION FOR PERSONS WITHOUT FINANCIAL MEANS WHO ARE ACCUSED OF FEDERAL CRIMES OTHER THAN PETTY OFFENSES. THE ACT PROVIDES FOR THE COMPENSATION OF APPOINTED COUNSEL AND THE FINANCING OF NECESSARY DEFENSE SERVICES OTHER THAN COUNSEL. TO CARRY OUT THE LEGISLATIVE PROGRAM, APPROPRIATIONS ARE AUTHORIZED TO THE UNITED STATES COURTS AND PAYMENTS ARE MADE UNDER THE SUPERVISION OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.

THE QUESTIONS SUBMITTED INVOLVE THE RELATIONSHIP OF SUBSECTION (E) OF THE CRIMINAL JUSTICE ACT OF 1964, 18 U.S.C. 3006AE), PROVIDING FOR "INVESTIGATIVE, EXPERT, OR OTHER SERVICES NECESSARY TO AN ADEQUATE DEFENSE," TO 18 U.S.C. 4244, PROVIDING FOR PSYCHIATRIC EXAMINATION OF A CRIMINAL DEFENDANT TO DETERMINE HIS MENTAL COMPETENCY TO UNDERSTAND THE PROCEEDINGS AGAINST HIM OR TO ASSIST IN HIS OWN DEFENSE, AND TO RULE 17(B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, PROVIDING FOR SUBPOENA OF WITNESSES AT NO COST TO THE DEFENDANT "UPON AN EX PARTE APPLICATION OF A DEFENDANT *** SHOWING THAT THE DEFENDANT IS FINANCIALLY UNABLE TO PAY THE FEES OF THE WITNESS AND THAT THE PRESENCE OF THE WITNESS IS NECESSARY TO AN ADEQUATE DEFENSE." SECTION 4244 AND RULE 17(B) HAVE GENERALLY BEEN CONSIDERED TO INVOLVE THE FINANCIAL RESPONSIBILITY OF THE DEPARTMENT OF JUSTICE. SEE 39 COMP. GEN. 133 (1959); B-132461, AUGUST 27, 1957. THE QUESTIONS, IN THE CONSIDERATION OF WHICH WE WERE INFORMED OF THE VIEWS OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, AND THE DEPARTMENT OF JUSTICE, ARE DISCUSSED BELOW IN THE ORDER PRESENTED.

1. WHERE AN INDIGENT CRIMINAL DEFENDANT HAS MOVED THAT A PSYCHIATRIST BE APPOINTED TO EXAMINE HIM, EITHER FOR THE PURPOSE OF ESTABLISHING INSANITY AT THE TIME OF THE OFFENSE OR INCOMPETENCY TO STAND TRIAL, OR BOTH, IS THE DEPARTMENT OR THE ADMINISTRATIVE OFFICE RESPONSIBLE FOR PAYMENT OF THE PSYCHIATRIST'S EXAMINATION FEE?

THE JUDICIAL CONFERENCE OF THE UNITED STATES HAS RECENTLY ISSUED GUIDELINES FOR THE IMPLEMENTATION OF THE CRIMINAL JUSTICE ACT. THE CHAPTER ON AUTHORIZATION AND PAYMENT FOR INVESTIGATIVE, EXPERT, AND OTHER SERVICES CONTAINS THE FOLLOWING POLICY STATEMENT UNDER THE HEADING "PSYCHIATRISTS, PSYCHOLOGISTS, ETC.":

PAYMENT FOR SERVICES RENDERED BY THE AFOREMENTIONED EXPERTS ARE MADE EITHER BY THE DEPARTMENT OF JUSTICE OR THE ADMINISTRATIVE OFFICE. WHEN THE PURPOSE OF THE EXAMINATION IS TO DETERMINE THE DEFENDANT'S MENTAL RESPONSIBILITY AT THE TIME OF THE ALLEGED OFFENSE, SAID SERVICES SHOULD BE PAID FROM FUNDS APPROPRIATED FOR THE IMPLEMENTATION OF THE CRIMINAL JUSTICE ACT BY THE ADMINISTRATIVE OFFICE. WHEN THE PURPOSE OF THE EXAMINATION IS TO DETERMINE THE DEFENDANT'S MENTAL COMPETENCY TO STAND TRIAL, SAID EXPENSE IS TO BE BORNE BY THE DEPARTMENT OF JUSTICE. GUIDELINES FOR THE ADMINISTRATION OF THE CRIMINAL JUSTICE ACT (MARCH 1970), CHAP. III, PAR. B2.

THE QUOTED GUIDELINE RECOGNIZES A DISTINCTION BETWEEN A CLEARLY DEFENSE SERVICE PSYCHIATRIC EXAMINATION UNDER SUBSECTION (E) OF THE CRIMINAL JUSTICE ACT, TO DETERMINE THE DEFENDANT'S MENTAL RESPONSIBILITY AT THE TIME OF THE ALLEGED OFFENSE, AND A SECTION 4244 PSYCHIATRIC EXAMINATION RESULTING IN A REPORT TO THE COURT ON THE DEFENDANT'S MENTAL COMPETENCY TO STAND TRIAL. WE CONSIDER THIS DISTINCTION TO BE VALID NOTWITHSTANDING THAT THE MOTION FOR EXAMINATION COMES FROM THE DEFENSE. FOR, AS POINTED OUT BY PROFESSOR OAKS IN A REPORT TO THE JUDICIAL CONFERENCE OF THE UNITED STATES AND THE DEPARTMENT OF JUSTICE:

*** THE EXAMINING PSYCHIATRIST (UNDER SECTION 4244) IS DIRECTED TO REPORT TO THE COURT THE RESULTS OF HIS INTERVIEWS AND EXAMINATIONS OF THE DEFENDANT. CLEARLY, THIS IS NOT A DEFENSE TOOL AS MUCH AS A METHOD FOR THE COURT TO DETERMINE A DEFENDANT'S COMPETENCY TO STAND TRIAL. THE SCOPE OF THE EXAMINATION IS LIMITED TO THAT NARROW QUESTION; WHILE FINDINGS MATERIAL TO A DEFENSE OF INSANITY MAY BE PRODUCED BY THE EXAMINATION, THAT IS NOT ITS MAJOR PURPOSE. MOREOVER, THE FACT THAT THE PSYCHIATRIST REPORTS TO THE COURT RATHER THAN TO DEFENSE COUNSEL SEVERELY RESTRICTS THE UTILITY OF THE EXAMINATION AS A DEFENSE TOOL. THE CRIMINAL JUSTICE ACT IN THE FEDERAL DISTRICT COURTS, SENATE COMMITTEE ON THE JUDICIARY, 90TH CONG., 2ND SESS., PAGE 216. (COMMITTEE PRINT.)

MOREOVER, A PROCEEDING UNDER SECTION 4244 IS "NON-ADVERSARY IN CHARACTER, UNLESS AND UNTIL THE PSYCHIATRIC REPORT REFLECTS A MENTAL CONDITION WHICH CALLS FOR A HEARING AND EXAMINATION BY THE COURT OF THE APPELLANT'S COMPETENCE." CASTER V. UNITED STATES, 319 F. 2D 850, 852 (1963). SEE ALSO STONE V. UNITED STATES, 358 F. 2D 503 (1966).

WE DO NOT CONSIDER THE CRIMINAL JUSTICE ACT TO IN ANY WAY AFFECT THE ESTABLISHED FINANCIAL RESPONSIBILITY OF THE DEPARTMENT OF JUSTICE FOR A MENTAL COMPETENCY EXAMINATION IN A SECTION 4244 PROCEEDING. THE RESPONSIBILITY STEMS FROM THE MENTAL DEFECTIVES ACT WHICH PROMULGATED SECTION 4244 AND HAS A LONG LINE OF LEGISLATIVE RECOGNITION EXTENDING INTO THE PRESENT. SEE B-132461, AUGUST 27, 1957; PUBLIC LAW 83-195, 67 STAT. 373; PUBLIC LAW 91-153, 83 STAT. 403, 408. ALSO, IN KEEPING WITH THE GUIDELINE AND AS PREVIOUSLY INDICATED, WE CONSIDER AN EXAMINATION ON MOTION OF THE DEFENDANT FOR THE PURPOSE OF ESTABLISHING INSANITY AT THE TIME OF THE OFFENSE AS INVOLVING THE CRIMINAL JUSTICE ACT AND THUS FOR PAYMENT BY THE ADMINISTRATIVE OFFICE FROM FUNDS APPROPRIATED FOR THE IMPLEMENTATION OF THAT ACT.

IN THE EVENT OF A DEFENSE MOTION FOR A PSYCHIATRIC EXAMINATION FOR THE DUAL PURPOSE OF DETERMINING COMPETENCY TO STAND TRIAL, A SECTION 4244 PURPOSE, AND INSANITY AT THE TIME OF THE OFFENSE, A CRIMINAL JUSTICE ACT PURPOSE, IT WOULD APPEAR THAT AS THE INITIAL DETERMINATION MUST BE THAT OF THE COMPETENCY OF THE DEFENDANT TO STAND TRIAL, THE BASIC EXPENSE SHOULD BE BORNE BY A DEPARTMENT OF JUSTICE APPROPRIATION AND ANY ADDITIONAL EXPENSE FOR THE PURPOSE OF DETERMINING INSANITY AT TIME OF OFFENSE SHOULD BE CHARGED TO THE CRIMINAL JUSTICE ACT APPROPRIATION. THIS IS UNDERSTOOD TO BE IN ESSENCE THE EXISTING ESTABLISHED PRACTICE OF RESOLVING FINANCIAL RESPONSIBILITY OF A DUAL PURPOSE EXAMINATION SITUATION. SEE DEPARTMENT OF JUSTICE MEMO NO. 355, AUGUST 26, 1963.

2. WHERE A PSYCHIATRIST APPOINTED ON AN INDIGENT DEFENDANT'S MOTION HAS DEPARTMENT OR THE ADMINISTRATIVE OFFICE RESPONSIBLE FOR THE PSYCHIATRIST'S WITNESS FEE? CONDUCTED A MENTAL EXAMINATION AND LATER TESTIFIED AT TRIAL, IS THE

THE ANSWER TO THE QUESTION TURNS ON WHETHER THE FEE OF THE EXPERT WITNESS, AS OPPOSED TO THE PRESCRIBED STATUTORY FEES OF A LAY WITNESS, IS FOR PAYMENT UNDER THE CRIMINAL JUSTICE ACT, PARTICULARLY SUBSECTION (E) OF THE ACT, OR RULE 17(B), FEDERAL RULES OF CRIMINAL PROCEDURE.

WE ARE OF THE VIEW THAT THE FEE OF A PSYCHIATRIST CALLED TO TESTIFY ON BEHALF OF AN ACCUSED ENTITLED TO EXPERT SERVICES UNDER SUBSECTION (E) OF THE CRIMINAL JUSTICE ACT IS FOR PAYMENT PURSUANT TO THAT ACT. THE PURPOSE OF THE ACT IS TO ASSURE ADEQUATE REPRESENTATION IN THE FEDERAL COURTS OF ACCUSED PERSONS WITH INSUFFICIENT MEANS. IT DEFINES REPRESENTATION IN SUBSECTION (A) AS INCLUDING "COUNSEL AND INVESTIGATIVE, EXPERT, AND OTHER SERVICES NECESSARY TO AN ADEQUATE DEFENSE." SUBSECTION (E) STATES: "COUNSEL FOR A DEFENDANT WHO IS FINANCIALLY UNABLE TO OBTAIN INVESTIGATIVE, EXPERT, OR OTHER SERVICES NECESSARY TO AN ADEQUATE DEFENSE IN HIS CASE MAY REQUEST THEM IN AN EX PARTE APPLICATION." WE DO NOT READ THE PHRASE "INVESTIGATIVE, EXPERT, OR OTHER SERVICES NECESSARY TO AN ADEQUATE DEFENSE" AS BEING LIMITED TO SUCH SERVICES "NECESSARY TO THE PREPARATION OF THE DEFENSE," A SUGGESTION ADVANCED BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. THE END PRODUCT OF AN ADEQUATE DEFENSE IS NOT INFREQUENTLY REPRESENTATION AT TRIAL, AND THAT IS SO FOR THE CONSULTED EXPERT AS WELL AS FOR COUNSEL. FURTHERMORE, WE FIND THE HISTORY OF THE ACT SO PERSUASIVE AS TO WARRANT THE CONCLUSION THAT IT PREEMPTS THE PAYMENT OF EXPERT WITNESS FEES TO THE EXCLUSION OF THE GENERAL PROVISIONS OF RULE 17(B), NOTWITHSTANDING THE $300 FEE LIMITATION IN SUBSECTION (E) OF THE ACT. IT IS THE LEGISLATIVE HISTORY OF THAT VERY LIMITATION WHICH MAKES INESCAPABLE THE FOREGOING CONCLUSION.

THE PHRASE "INVESTIGATIVE, EXPERT, OR OTHER SERVICES NECESSARY TO AN ADEQUATE DEFENSE" IN SUBSECTION (E) WITH REFERENCE TO SERVICES OTHER THAN COUNSEL WAS CONTAINED IN THE DRAFT OF A BILL PROPOSED IN THE REPORT OF THE ATTORNEY GENERAL'S COMMITTEE ON POVERTY AND THE ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE (ALLEN COMMITTEE), SUBMITTED FEBRUARY 25, 1963. POVERTY AND THE ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE, WASHINGTON: 1963. THE COMMITTEE'S COMMENTARY DESCRIBES SUCH SERVICES AS INCLUDING "INVESTIGATORY SERVICES, ACCESS TO EXPERT WITNESSES, TRANSCRIPTS OF PROCEEDING, AND THE LIKE." PAGE 149. PARTICULARLY PERTINENT IS THE STATEMENT IN THE BODY OF THE REPORT: "THE PRESENT PRACTICES MAKE NO ADEQUATE PROVISION FOR PSYCHIATRIC WITNESSES OR OTHER EXPERT TESTIMONY WHEN REQUIRED BY DEFENSE COUNSEL IN THE DEFENSE OF ACCUSED." PAGE 32.

THE $300 FEE LIMITATION IN SUBSECTION (E) OF THE ACT ORIGINATED AS A FLOOR AMENDMENT IN THE HOUSE OF REPRESENTATIVES. THE AMENDMENT, OFFERED BY MR. POFF, LIMITED COMPENSATION FOR SERVICES OTHER THAN COUNSEL TO $500 IN THE CASE OF A FELONY AND $300 IN THE CASE OF A MISDEMEANOR. THE PROPOSED AMENDMENT INVOKED THE FOLLOWING DISCUSSION:

MR. POFF. MR. CHAIRMAN, AS WILL BE SEEN, THE AMENDMENT IS ADDRESSED TO THAT SECTION OF THE BILL WHICH CONCERNS ITSELF WITH AUTHORITY TO PROVIDE FINANCING TO THE ATTORNEY APPOINTED OR ASSIGNED TO EMPLOY EXPERT OR INVESTIGATIVE SERVICES WHICH MIGHT BE NECESSARY TO THE PERFECTION OF AN ADEQUATE DEFENSE.

IMMEDIATELY ABOVE THE LANGUAGE PROPOSED, ON THE SAME PAGE THE COMMITTEE SAW FIT TO PLACE A LIMITATION UPON THE TOTAL COMPENSATION WHICH THE ASSIGNED OR APPOINTED COUNSEL COULD OBTAIN. IN THE CASE OF A FELONY THE MAXIMUM IS TO BE $500 AND IN THE CASE OF A MISDEMEANOR THE MAXIMUM IS TO BE $300.

IT SEEMED TO ME ONLY APPROPRIATE THAT A SIMILAR OVERALL LIMITATION SHOULD BE PLACED UPON THE INVESTIGATOR EMPLOYED BY THE COUNSEL, OR UPON THE EXPERT WITNESS EMPLOYED BY THE COUNSEL TO EXAMINE INTO THE FACTUAL EVIDENCE INVOLVED AND LATER TO TESTIFY IN THE CASE.

THIS ALONE IS WHAT THE AMENDMENT WOULD DO.

I READ THE PERTINENT LANGUAGE IN ORDER TO MAKE A PARENTHETICAL EXPLANATION. BEGINNING ON LINE 18 THE LANGUAGE IS:

THE COURT WHICH AUTHORIZED THE SERVICES SHALL DIRECT THE PAYMENT OF REASONABLE COMPENSATION TO THE PERSON WHO RENDERED THE SERVICES.

THEN FOLLOWS THE LANGUAGE OF THE AMENDMENT:

"PROVIDED, HOWEVER, THAT SUCH COMPENSATION SHALL NOT EXCEED $500 PER PERSON IN CASE OF A FELONY AND $300 PER PERSON IN CASE OF A MISDEMEANOR.

MR. CHAIRMAN, IT IS THE INTENT OF THE AMENDMENT THAT THE COURT WHICH IS TO BE EMPOWERED, BY THE FIRST PART OF THE SENTENCE, TO DETERMINE THE AMOUNT OF COMPENSATION, SHOULD TAKE INTO ACCOUNT THE AMOUNT OF TIME CONSUMED BY THE INVESTIGATOR OR THE EXPERT WITNESSES.

TO BUTTRESS THAT INTENT WE FIND IN THE FOLLOWING SENTENCE THE LANGUAGE:

A CLAIM FOR COMPENSATION SHALL BE SUPPORTED BY AN AFFIDAVIT SPECIFYING THE TIME EXPENDED.

MR. CHAIRMAN, FOR THE PURPOSE OF LEGISLATIVE HISTORY I REPEAT THAT IT IS THE INTENT OF THE AMENDMENT TO URGE THE JUDGE WHO WILL DECIDE WHAT IS REASONABLE COMPENSATION TO APPLY A TIME YARDSTICK SIMILAR TO THE TIME YARDSTICK WHICH IS TO BE APPLIED TO THE SERVICES OF APPOINTED OR ASSIGNED COUNSEL.

MR. CAHILL. MR. CHAIRMAN, WILL THE GENTLEMAN YIELD?

MR. POFF. I YIELD TO THE GENTLEMAN FROM NEW JERSEY.

MR. CAHILL. THE GENTLEMAN RECOGNIZES, DOES HE NOT, THAT MANY EXPERTS HAVE A REGULAR PER DIEM FEE WHICH THEY CHARGE FOR APPEARANCES IN COURT REGARDLESS OF THE TIME THAT THEY MAY SPEND IN COURT. IN OTHER WORDS, A QUALIFIED MEDICAL WITNESS MAY CHARGE $100 OR $200 FOR A COURT APPEARANCE EVEN THOUGH HE MAY SPEND ONLY 30 MINUTES IN THE COURTROOM. IS IT THE THOUGHT OF THE GENTLEMAN THAT WHEN A DOCTOR APPEARS IN FURTHERANCE OF DEFENSE OF A CRIMINAL CASE HE SHOULD BE PAID ON THE BASIS OF THE ACTUAL HOURS SPENT IN A COURTROOM, ON THE SAME BASIS AS A LAWYER WOULD BE PAID - TO WIT, $15 PER HOUR - RATHER THAN PAID A PER DIEM WHICH HE MIGHT ORDINARILY RECEIVE IN A COURT CASE WHEN THE DEFENDANT HAD A PAID COUNSEL?

MR. POFF. MR. CHAIRMAN, IN RESPONSE TO THE GENTLEMAN'S QUESTION, IT IS MY STRONG CONVICTION, FIRST OF ALL, THAT THE PRACTICING ATTORNEY OWES A RESPONSIBILITY TO HIS COMMUNITY TO PERFORM SOME SERVICES GRATIS. WE HAVE HERETOFORE ASKED HIM TO ASSUME THE ENTIRE BURDEN IN THAT REGARD. THIS LEGISLATION IS INTENDED TO MAKE IT POSSIBLE TO LIGHTEN HIS BURDEN. AT THE SAME TIME MAY I SAY I THINK IT IS THE BURDEN OF THE PRACTICING DOCTOR TO ASSUME SOME OF THE RESPONSIBILITY TO HIS COMMUNITY WHICH A CRIMINAL TRIAL ENTAILS. I WOULD THINK THAT THE JUDGE IN DETERMINING WHAT WAS REASONABLE COMPENSATION WOULD BE GUIDED BY THE TIME YARDSTICK AND THE DOLLAR YARDSTICK WHICH THIS LEGISLATION LAYS DOWN FOR THE PRACTICING ATTORNEY. MR. CAHILL. AND THAT GENERALIZATION WOULD APPLY TO ALL EXPERTS THAT WERE BROUGHT INTO THE CASE, IN ADDITION TO THE MEDICAL EXPERTS? MR. POFF. ADDITION TO THE WITNESSES, THOSE WHO ARE EMPLOYED AS INVESTIGATORS WHO MAY NOT BE CALLED LATER AS WITNESSES.

SEE ALSO 110 CONG. REC. 447. THE COMMITTEE OF CONFERENCE IN REPORTING ON THE HOUSE AMENDMENT STATED:

THE SENATE VERSION OF THE BILL PLACED NO LIMIT ON FEES PAYABLE FOR SERVICES OTHER THAN COUNSEL; AS AMENDED IN THE HOUSE, THE BILL WOULD LIMIT THE FEES PAYABLE FOR SUCH SERVICES TO $500 PER PERSON IN FELONY CASES AND $300 PER PERSON IN MISDEMEANOR CASES. THE HOUSE APPROACH HAS BEEN ACCEPTED. HOWEVER, BECAUSE THE CONFEREES FIND NO REASON TO DIFFERENTIATE BETWEEN THE FEES PAYABLE IN A FELONY CASE AND A MISDEMEANOR CASE, THEY RECOMMEND A UNIFORM MAXIMUM FEE, AND RECOMMEND THAT THE LOWER OF THE FIGURES SUGGESTED BY THE HOUSE BE MADE APPLICABLE. IT IS THEREFORE PROVIDED THAT, EXCLUSIVE OF REIMBURSEMENT, THE FEE PAYABLE TO EACH PERSON WHO RENDERS SERVICES OTHER THAN COUNSEL IN A CASE, OR TO AN ORGANIZATION FOR EACH SERVICE OF AN EMPLOYEE, SHALL NOT EXCEED $300. H. REPT. NO. 1709, 88TH CONG., 2D SESS., PP. 6-7.

IN VIEW OF THE FOREGOING, OUR ANSWER TO THE QUESTION IS THAT THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS IS RESPONSIBLE FOR THE PSYCHIATRIST'S WITNESS FEE.

3. WHERE EXPERT SERVICES OF THE TYPE CONTEMPLATED BY THE CRIMINAL JUSTICE ACT ARE REQUESTED BY AN INDIGENT'S COUNSEL, BUT THE EXPENSES INCURRED EXCEED THE MAXIMUM ALLOWABLE UNDER THE ACT, IS THE DEPARTMENT OBLIGATED UNDER RULE 17(B) TO PAY ALL OR PART OF THE EXPENSES?

AS MAY BE GATHERED FROM OUR RESPONSE TO QUESTION 2, PARTICULARLY WITH REGARD TO THE LEGISLATIVE HISTORY OF THE MAXIMUM LIMITATION OF SUBSECTION (E) OF THE ACT, WE ARE OF THE OPINION THIS QUESTION REQUIRES A NEGATIVE ANSWER. WE ARE NOT UNMINDFUL THAT SUBSEQUENT TO THE EFFECTIVE DATE OF THE CRIMINAL JUSTICE ACT EXPERT WITNESSES HAVE BEEN SUBPOENAED UNDER RULE 17(B), BUT WE SEE LITTLE, IF ANY, JUSTIFICATION FOR IGNORING THE LIMITATION ON THE FEE OF AN EXPERT SET FORTH IN SUBSECTION (E) OF THE ACT. IT WOULD APPEAR THAT THE PROPER APPROACH TO DIFFICULTIES THE LIMITATION MAY OCCASIONALLY CAUSE IS TO AMEND THE SUBSECTION. A BILL WHICH WOULD PERMIT PAYMENT IN EXCESS OF THE LIMITATION WHEN WARRANTED HAS PASSED THE SENATE MAY 1, 1970, AND IS CURRENTLY BEFORE THE HOUSE. 1461, 91ST CONG., 2D SESS. SEE ALSO H. R. 9687, 91ST CONG., 1ST SESS.

4. WHERE A PROBATIONER CHARGED WITH VIOLATION OF HIS PROBATION CONDITIONS MOVES FOR A PSYCHIATRIC EXAMINATION, WHO IS RESPONSIBLE FOR PAYMENT OF THE EXAMINATION FEE?

ILLUSTRATIVE OF THE SITUATION GIVING RISE TO THE QUESTION IS THE CASE OF UNITED STATES V. DENNIS C. POSEY, USDC DIST. OF NEV., DOCKET NO. LV 1199. THE DEFENDANT WAS SENTENCED TO A 5-YEAR TERM OF PROBATION ON SEPTEMBER 20, 1965. AT A HEARING HELD DECEMBER 17, 1969, ON A PETITION FOR REVOCATION OF PROBATION, THE DEFENDANT'S APPOINTED COUNSEL MOVED FOR AN EXAMINATION OF HIS CLIENT BY A QUALIFIED PSYCHIATRIST. THE COURT GRANTED THE MOTION AND IN DOING SO ORDERED THE DESIGNATED PSYCHIATRIST TO "REPORT TO THIS COURT IN WRITING WITHIN 30 DAYS HEREOF THE FINDINGS AS TO WHETHER THE DEFENDANT IS PRESENTLY MENTALLY INCOMPETENT SO AS TO BE UNABLE TO UNDERSTAND THE PROCEEDINGS CURRENTLY PENDING AGAINST HIM, OR SO AS TO BE UNABLE TO ASSIST HIS COUNSEL." THE COURT FURTHER ORDERED THE UNITED STATES ATTORNEY TO FURNISH THE APPOINTED PSYCHIATRIST WITH SUCH INFORMATION AS HE HAS AVAILABLE "CONCERNING THE DEFENDANT'S MEDICAL AND PSYCHIATRIC BACKGROUND AND THE NATURE OF THE CHARGES PENDING AGAINST HIM." ASIDE FROM THE QUESTION OF WHETHER PROBATION REVOCATION HEARINGS ARE WITHIN THE COVERAGE OF THE CRIMINAL JUSTICE ACT, A QUESTION WHICH WAS RAISED IN THE PRESENT CONTEXT BUT WILL BE SEPARATELY DISCUSSED, IT APPEARS THAT THE PSYCHIATRIC SERVICES WITH WHICH THE QUESTION UNDER CONSIDERATION IS CONCERNED NECESSARILY INVOLVE A SECTION 4244 PROCEEDINGS TO DETERMINE WHETHER THE HEARING FOR REVOCATION OF PROBATION SHOULD GO ON. A SECTION 4244 PROCEEDINGS MAY OCCUR "AFTER ARREST AND PRIOR TO THE IMPOSITION OF SENTENCE OR PRIOR TO THE EXPIRATION OF ANY PERIOD OF PROBATION *** ."

ACCORDINGLY, AND IN VIEW OF OUR ANSWER TO THE FIRST QUESTION, WE ARE OF THE OPINION THAT THE DEPARTMENT OF JUSTICE IS RESPONSIBLE FOR THE PAYMENT OF THE EXAMINATION FEE WHERE THE PURPOSE OF THE EXAMINATION IS THE SAME AS IN THE POSEY CASE. SEE B-132461, AUGUST 27, 1957.

THE MEMORANDA OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS AND THE DEPARTMENT OF JUSTICE DISCUSS IN CONNECTION WITH THE LAST QUESTION THE IMPACT OF MEMPA V. RHAY, 389 U.S. 128 (1967), INVOLVING THE RIGHT TO COUNSEL IN A PROBATION REVOCATION COUPLED WITH A DEFERRED SENTENCING PROCEEDING, UPON OUR DECISION 45 COMP. GEN. 780 (1966), WHEREIN WE HELD:

IN LIGHT OF THE INHERENT DIFFERENCES BETWEEN REVOCATION OF PROBATION PROCEEDINGS AND THE CRIMINAL TRIALS FROM WHICH THEY FOLLOW IT IS OUR OPINION, IN THE ABSENCE OF ANY POSITIVE INDICATION OF CONGRESSIONAL INTENT IN THE MATTER, THAT THE CRIMINAL JUSTICE ACT OF 1964 WHICH IS DIRECTED TOWARD THE CONSTITUTIONAL RIGHT TO LEGAL REPRESENTATION FOR DEFENDANTS IN CRIMINAL CASES MAY NOT PROPERLY BE CONSTRUED AS BEING APPLICABLE IN THE PROBATION REVOCATION SITUATION.

THE ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION STATES THAT A RECENT DECISION OF THE DISTRICT COURT OF DELAWARE (UNITED STATES V. GAST, 297 F. SUPP. 620 (1969) HOLDS THAT THE SUPREME COURT'S DECISION IN MEMPA "EFFECTIVELY OVERRULED" OUR 1966 DECISION (45 COMP. GEN. 780).

OUR 1966 DECISION COVERED BOTH SIMPLE PROBATION REVOCATION PROCEEDINGS AND PROBATION REVOCATION COUPLED WITH DEFERRED SENTENCING PROCEEDINGS. INDICATED IN THAT DECISION THAT WE COULD SEE LITTLE DIFFERENCE BETWEEN THE TWO PROCEEDINGS, AND THAT WE CONSIDERED NEITHER TYPE PROCEEDING A CRIMINAL PROCEEDING. HOWEVER, IT APPEARS FROM THE MEMPA CASE THAT A SIMPLE PROBATION REVOCATION PROCEEDING CAN BE DISTINGUISHED FROM ANY PROCEEDING WHICH ALSO INCLUDES DEFERRED SENTENCING. THE SUPREME COURT APPEARS TO CONSIDER A DEFERRED SENTENCING AS PART OF THE ORIGINAL CRIMINAL PROCEEDING AND, HENCE, THAT THE PERSON INVOLVED IS ENTITLED TO COUNSEL AT SUCH A PROCEEDING, WHETHER OR NOT IT IS COUPLED WITH A REVOCATION OF PROBATION.

THE GAST CASE INVOLVED A REVOCATION OF PROBATION COUPLED WITH A DEFERRED SENTENCING. THUS, THE GAST CASE WAS GOVERNED BY THE HOLDING OF THE SUPREME COURT IN THE MEMPA CASE. HOWEVER, IN THE GAST CASE THE COURT QUOTED THE FOLLOWING LANGUAGE BY THE SUPREME COURT IN THE MEMPA CASE:

*** A LAWYER MUST BE AFFORDED AT THIS PROCEEDING WHETHER IT BE LABELED A REVOCATION OF PROBATION OR A DEFERRED SENTENCING. ***

ON THE BASIS OF THIS LANGUAGE THE COURT, IN EFFECT, IMPLIED MEMPA MIGHT BE APPLICABLE TO A SIMPLE REVOCATION PROCEEDING.

THE PARAGRAPH IN WHICH THE LAST-QUOTED LANGUAGE APPEARS READS, IN FULL, AS FOLLOWS:

IN SUM, WE DO NOT QUESTION THE AUTHORITY OF THE STATE OF WASHINGTON TO PROVIDE FOR A DEFERRED SENTENCING PROCEDURE COUPLED WITH ITS PROBATION PROVISIONS. INDEED, IT APPEARS TO BE AN ENLIGHTENED STEP FORWARD. ALL WE DECIDE HERE IS THAT A LAWYER MUST BE AFFORDED AT THIS PROCEEDING WHETHER IT BE LABELED A REVOCATION OF PROBATION OR A DEFERRED SENTENCING. ASSUME THAT COUNSEL APPOINTED FOR THE PURPOSE OF THE TRIAL OR GUILTY PLEA WOULD NOT BE UNDULY BURDENED BY BEING REQUESTED TO FOLLOW THROUGH AT THE DEFERRED SENTENCING STAGE OF THE PROCEEDING.

IT IS CLEAR FROM THE QUOTED PARAGRAPH THAT THE REFERENCE TO "THIS PROCEEDING" IS DIRECTED AT A PROCEEDING INVOLVING DEFERRED SENTENCING COUPLED WITH REVOCATION OF PROBATION. THE SUPREME COURT HELD THAT AT SUCH A PROCEEDING COUNSEL MUST BE FURNISHED WHETHER THE PROCEEDING BE LABELED A REVOCATION OF PROBATION OR A DEFERRED SENTENCING. THUS THE MEMPA CASE DID NOT INVOLVE A SIMPLE REVOCATION OF PROBATION HEARING, I.E., A CASE WHERE THE INDIVIDUAL INVOLVED HAD BEEN SENTENCED, THEN PLACED ON PROBATION, AND WAS SUBSEQUENTLY CHARGED WITH VIOLATION OF PROBATION. FURTHER, IN HOLDER V. UNITED STATES, 285 F. SUPP. 380 (1968) - INVOLVING A SIMPLE REVOCATION OF PROBATION PROCEEDING - THE COURT STATED:

THE PETITIONER CONTENDS THAT MEMPA V. RHAY, 389 U.S. 128, 88 S. CT. 254, 19 L. ED. 2D 336 (1967), IS CONTROLLING. THE MEMPA CASE IS CLEARLY DISTINGUISHABLE. MEMPA, AN INDIGENT, WAS NOT PROVIDED COUNSEL AT A WASHINGTON STATE REVOCATION OF PROBATION HEARING. THE SUPREME COURT HELD THAT HE WAS ENTITLED TO COUNSEL AS A MATTER OF RIGHT. THE COURT REASONED THAT THE PETITIONER WAS INVOLVED IN A GIDEON TYPE CRIMINAL PROCEEDING WHERE SUBSTANTIAL RIGHTS OF THE "CRIMINAL ACCUSED" COULD BE AFFECTED. THE WASHINGTON STATUTE PROVIDED FOR "DEFERRED SENTENCING" MEMPA WAS ENTITLED UNDER WASHINGTON LAW TO WITHDRAW HIS PLEA OF GUILTY AT ANYTIME PRIOR TO SENTENCING. THUS, AN ATTORNEY MIGHT HAVE BEEN BENEFICIAL AT THIS DEFERRED SENTENCING PROCESS. IN CONTRAST, THE PETITIONER UNDER THE FEDERAL PROBATION ACT HAD ALREADY BEEN SENTENCED AND COULD NOT HAVE WITHDRAWN HIS PLEA OF GUILTY AT THE REVOCATION HEARING.

THE SECOND LEGAL RIGHT MEMPA MAY HAVE LOST WITHOUT COUNSEL WAS THE RIGHT TO APPEAL FROM A PLEA OF GUILTY, WHICH CAN ONLY BE TAKEN IN WASHINGTON AFTER SENTENCE IS IMPOSED FOLLOWING REVOCATION OF PROBATION. AGAIN THIS IS NOT A RIGHT OUR PETITIONER IS ENTITLED TO IN A FEDERAL REVOCATION HEARING.

THE COURT THEN HELD THAT IN A SIMPLE REVOCATION OF PROBATION PROCEEDING (I.E., ONE NOT INVOLVING DEFERRED SENTENCING) A PERSON IS NOT ENTITLED TO COURT APPOINTMENT OF COUNSEL AS A MATTER OF RIGHT. SEE ALSO TO THE SAME EFFECT SPLAWN V. FITZHARRIS, 297 F. SUPP. 44 (1969), WHICH CITES THE HOLDER CASE.

WHILE THE MEMPA CASE DOES, NO DOUBT, UNDERMINE THE BASIS OF OUR DECISION IN 45 COMP. GEN. 780 (1966), INSOFAR AS PROBATION PROCEEDINGS COUPLED WITH DEFERRED SENTENCING ARE CONCERNED, WE STILL CONSIDER OUR 1966 DECISION CONTROLLING INSOFAR AS SIMPLE REVOCATION OF PROBATION PROCEEDINGS ARE CONCERNED I.E., REVOCATION OF PROBATION PROCEEDINGS NOT COUPLED WITH DEFERRED SENTENCING. (AS YOU NO DOUBT ARE AWARE, THERE ARE CURRENTLY PENDING TWO BILLS (S. 1461 AND H.R. 9687) TO EXTEND THE CRIMINAL JUSTICE ACT TO DEFENDANTS CHARGED WITH A VIOLATION OF PROBATION.) HOWEVER, IN VIEW OF THE SUPREME COURT'S DECISION IN THE MEMPA CASE, OUR DECISION OF 1966 (45 COMP. GEN. 780) NEED NO LONGER BE CONSIDERED CONTROLLING IN CONNECTION WITH PROCEEDINGS INVOLVING DEFERRED SENTENCING, WHETHER OR NOT SUCH PROCEEDINGS ARE COUPLED WITH A REVOCATION OF PROBATION. OF COURSE, WHETHER THE COST OF A PSYCHIATRIC EXAMINATION IN SUCH A PROCEEDING IS FOR PAYMENT UNDER THE CRIMINAL JUSTICE ACT OR UNDER 18 U.S.C. 4244, DEPENDS ON THE PURPOSE OF SUCH EXAMINATION. SEE OUR ANSWER TO THE FIRST QUESTION.