Opinion No. 183 (1995)

QUESTION: May a judge ethically conduct an ex parte hearing with appointed defense counsel representing an indigent client on the subject of expert witnesses?

BACKGROUND: A defendant is charged with capital murder, and the state is seeking the death penalty. Appointed counsel seeks judicial authorization to employ experts for assistance, but does not want the prosecutor to know the relief requested, the reasons urged in support of the motion, or the relief granted.

ANSWER: Yes. Canon 3B(8) generally prohibits ex parte communications concerning the merits of a pending or impending judicial proceeding, but it does not prohibit ex parte communications expressly authorized by law. See Canon 3B(8)(e). At least 10 states have judicially allowed ex parte hearings on such requests. State of Louisiana v. Touchet, 642 So. 2d. 1213, 1218 (La. 1994). At least two have held that such ex parte hearings are required by the United States Constitution. State v. Touchet, supra; State of North Carolina v. Ballard, 428 S.E. 2d 178, 183, (N.C. 1993). In Ballard, the court limited the requirement to psychiatric experts, but in Touchet, the rule was extended to hearings to authorize funds for experts to examine physical evidence gathered by the state. See also Ake v. Oklahoma, 105 S.Ct. 1087, 1096 (1985) (referring to ex parte hearing).

The Committee concludes that a judge would not violate Canon 3B(8) by conducting such an ex parte hearing, assuming the judge believed that it was expressly authorized by law.

The Committee on Judicial Ethics expresses no opinion on questions of law; therefore, it expresses no opinion on the issue of whether an ex parte hearing is constitutionally required in any particular case. The cases above are mentioned only to demonstrate that a judge could reasonably conclude that the ex parte communication was expressly authorized by law so as to fall within the exception provided by Canon 3B(8)(e).