Introduction

Courts and counsel (government and defense) often utilize psychological, psychiatric, and related services in criminal and civil proceedings involving Criminal Justice Act (CJA) clients. Some of those services are paid for from CJA funds, in limited circumstances as explained below.

Defense Services

CJA funds are used to pay for psychiatric and related services obtained under subsection (e) of the CJA, upon a determination that the services are "necessary for an adequate defense." The Guide refers to these services as "defense services," where the defendant selects the expert and controls the disclosure of the expert's report. As such, they are independent from the court and the government. [Guide, Vol. 7, § 320.20.20(a)]

The defense request may be made ex parte, and may include requests to obtain independent examinations of competency to stand trial, insanity at the time of the offense, or with respect to other mental conditions, as "necessary for an adequate defense." (These requests may be in addition to, and are independent of, other examinations that may be ordered by the court, where the defense does not select the expert and does not control disclosure of the expert's report.)

The (non-capital) Form CJA 21 or (capital) Form CJA 31 should be used to request authorization and for all payments for such defense services. The requestor should clearly describe the purpose of the expert's service citing the appropriate statutory authority including subsection (e) of the Criminal Justice Act or 18 U.S.C. § 3599.

Non-Defense Services

There are many other circumstances in which payment for the services of psychiatrists and related experts is made from a source other than the CJA appropriation.

The Guide refers to these services as "non-defense services," where the court or the government selects the expert, and access to the expert's report is not limited to the defendant. The Department of Justice (DOJ) generally pays for these non-defense services. [Guide, Vol. 7, § 320.20.20(b)]

Court-Ordered Examinations for Proceedings to Determine Mental Condition

Chapter 313 of Title 18 (18 U.S.C. §§ 4241-4248) provides for court-directed examination of individuals in connection with various proceedings to determine mental condition. See the Guide, Vol. 7, § 320.20.10. As a general rule, these evaluations are paid for by the Department of Justice (DOJ) and not with CJA funds. These examinations are to determine:

• the mental competence of a defendant to stand trial [18 U.S.C. § 4241],
• insanity at the time of the offense, [18 U.S.C. § 4242],
• the mental condition of an acquitted person hospitalized following a finding of not guilty only by reason of insanity, [18 U.S.C. § 4243],
• the present mental condition of a convicted defendant, [18 U.S.C. § 4244],
• the present mental condition of an imprisoned person who objects to transfer to a treatment facility, [18 U.S.C. § 4245],
• the present mental condition of a hospitalized person due for release [18 U.S.C. § 4246], and/or
• the present mental condition of a person who has been certified by the Attorney General or Director of the Bureau of Prisons to be a sexually dangerous person. [18 U.S.C. § 4248].

Determining Payment Responsibilities

There is a chart in the Guide, Vol. 7, § 320.20.60, which specifies whether the CJA or DOJ is responsible for payment, based on the statutory purpose of the examination, the type of service involved (i.e., examination or testimony), and whether or not it matters which party calls the witness or requests the examination.