19.2-264.3:1.3 - Expert assistance for indigent defendants in capital cases.
§ 19.2-264.3:1.3. Expert assistance for indigent defendants in capital cases.
A. In any case in which an indigent defendant (i) is charged with a capitaloffense and (ii) is found by the court to be financially unable to pay forexpert assistance, the defendant or his attorney may, upon notice to theCommonwealth, move in circuit court for the court to designate another judgein the same circuit to hear an ex parte request for the appointment of aqualified expert to assist in the preparation of the defendant's defense. Noex parte proceeding, communication, or request may be considered pursuant tothis section unless a proper showing is made in an adversarial proceedingbefore the trial judge demonstrating a particularized need forconfidentiality. Any such proceeding, communication, or request shall betranscribed and made part of the record available for appellate review or anyother post conviction review.
B. The motion for the appointment of a qualified expert shall be in writing,filed under seal, and shall be heard ex parte as soon as practicable by thedesignated judge. Upon hearing the ex parte request, the designated judgeshall find, by clear and convincing evidence, a particularized need forconfidentiality has been demonstrated before considering the request forexpert services. After a hearing upon the motion, the court may order theappointment of a qualified expert upon a showing that the provision of therequested expert services would materially assist the defendant in preparinghis defense and the lack of such confidential assistance would result in afundamentally unfair trial. Any expert appointed pursuant to this subsectionshall be compensated in accordance with § 19.2-332. The designated judgeshall direct requests for scientific investigations to the Department ofForensic Science or Division of Consolidated Laboratory Services wheneverpracticable.
C. All ex parte hearings conducted under this section shall be on the record,and the record of the hearings, together with all papers filed and ordersentered in connection with ex parte requests for expert assistance, shall bekept under seal as part of the record of the case. Following decision on themotion, whether it is granted or denied, the motion shall remain under seal.On motion of any party, and for good cause shown, the court may unseal therecord after the trial is concluded. Following final judgment and after allappeals have been exhausted, the court shall unseal all records and othermaterial sealed pursuant to this section. No ex parte ruling by a designatedjudge pursuant to this section in a proceeding where the Commonwealth isexcluded shall be the subject of a claim of error on appeal, or form thebasis for relief in any post-conviction litigation on behalf of the defendant.
D. This section does not apply to the appointment of a mental health expertpursuant to § 19.2-264.3:1 or 19.2-264.3:1.2.
(2010, c. 789.)