An interesting issue recently arose in a 2255 hearing in Federal Court. The Petitioner wished to use a “Strickland expert” — that is, another lawyer who would testify as an expert in a particular area of criminal defense. Presumably, this expert would testify that trial counsel — the subject of the 2255 — was ineffective in how he handled the case.
The Government challenged the use of the expert on the grounds that the petitioner had not given sufficient notice to call an expert — 90 days — as required by the Federal Rules of Civil Procedure (Rule 26). The Petitioner responded that the Government never requested leave to conduct discovery in the 2255, as is required by Rule 6 governing 2255 proceedings. Therefore, neither the civil nor criminal rules of procedure applied. If those rules did not apply, there was no need to give notice.
The Judge agreed with the Petitioner, and allowed the expert to testify despite a lack of notice in compliance with the Rules of Civil Procedure.
This is an important lesson — as expert testimony can be critical to a 2255 proceeding. In this case, even though the federal judge was extremely experienced, he had never been a defense attorney (as is often the case). One can only assume that it was helpful to have the testimony of a well respected member of the local bar to assist the judge in his ruling.
