The Punsalan Motion
Criminal defendants are entitled to effective assistance of counsel. Effective assistance includes a proper investigation of the case before motions or trial on a case. And to do a proper investigation, the defense attorney utilizes experts and investigators.
An expert is someone with the training or education to understand and explain complex issues. Experts in criminal defense cases commonly include ballistics experts, mental health experts, and toxicology experts. Experts are often utilized by the prosecution too, and they can powerfully swing a case.
Investigators fulfill two roles. The first is that they of course investigate. They can make calls or visit with people in order to dig up relevant evidence. They’re often ex-police or otherwise connected to criminal justice in some way, and their work and insights are invaluable.
The second role for an investigator is to be an independent witness. As an attorney I will often conduct a witness interview myself, because I want to see for myself how a potential witness responds to questions. Sometimes these interviews are recorded, but sometimes the witness doesn’t want to be recorded, and Washington law requires every participant consent to being recorded. When they’re not recorded I make sure my investigator is in the room.
The issue is that a witness may change their statement from the interview to the trial. If the interview is recorded that’s not an issue, you can play the recording and figure out the discrepancy. But if it wasn’t recorded the attorney is in a bind. They cannot themselves testify to the different statements. A lawyer cannot also be a witness on the same case. So what the investigator does is act as an independent witness to the original interview. They can take the stand and testify “Yes I was at the interview, and then the witness said ABC, and now they’re saying XYZ.” To be fair, most witnesses do not change their story. But if they do, and the interview wasn’t recorded and you didn’t have an investigator present, you are totally at the witness’s mercy. It’s just good practice to have an independent witness present.
Now, experts and investigators cost money. And by ethical rule, a criminal defense attorney cannot front the costs of those services. They must be borne by the client. But what happens when the client can’t afford the services?
It does come up. Sometimes a defendant has enough to pay their attorney but then their funds dry up, through a lost job or simply minimal savings. As I said above, an effective representation includes proper prep work. How can the attorney do the required work if the client can’t afford it?
The Courts recognized the issue. In 2006, the Washington Supreme Court decided State v. Punsalan, which held that expert or investigative services must be provided to a criminal defendant at the public’s expense, even if defendant retained a private attorney, presuming the defendant can’t afford those services.
This was a good ruling. Being charged with a crime can already be expensive, but no one should have to take out a second mortgage to get proper representation. And while it seems like the public bears the cost of these services, any member of the public is able to take advantage of Punsalan if they are in the same situation. From an economic situation, poor representation at trial usually results in additional appeals and re-trials, themselves a significant cost to the public. It’s far better a case is done right the first time.
The motion to the court for money for these services is called, appropriately enough, a Punsalan Motion and it’s a valuable tool in the defense attorney’s arsenal. It’s one of the very few motions that can be filed ex parte, which means the defense doesn’t even have to tell the prosecution they’re making the request. That’s important because the motion requires explaining exactly what the money will be used for, which could tip off the prosecution to a defense strategy. Presuming a client truly cannot afford the services, courts will regularly fund the service because they also know it’s best if a case is done correctly the first time.
My job as a Seattle Criminal Defense attorney is to make sure a case is handled properly every step of the way. The Punsalan Motion is one way I make sure my clients are getting ideal representation. If you or someone you know needs to speak with an attorney, feel free to give me a call.