Stephen B. Bright is Director of the Southern Center for Human Rights in Atlanta, GA.
An NACDL Director, he has served people facing the death penalty at trials,
on appeals and in post-conviction proceedings since 1979. He has taught courses on
capital punishment, criminal procedure and international human rights at Yale, Harvard,
Georgetown, Northeastern, Florida State and St. Mary's law schools; and has
testified extensively before the U.S. Congress and many state legislatures.
The Supreme Court recognized over 40 years ago that "there can be no equal justice where the kind of trial a [person] gets depends on the amount of money he [or she] has," in holding that a poor person has a right to a free transcript of a trial in order to perfect an appeal.1
Today, the services of investigators and expert witnesses are as indispensable to preparing for trial as access to a transcript is to handling an appeal. Yet access to these services often depends upon the amount of money one has.
The United States Supreme Court held in Ake v. Oklahoma2 that the Due Process Clause of the Fourteenth Amendment requires that the defense be provided an expert upon a sufficient showing of need. In that case, Glenn Burton Ake's conviction and death sentence were overturned because he was denied a mental health expert at his capital trial which involved issues of insanity and future dangerousness.
The Court held that an indigent defendant is entitled to funds for an expert where the area of expertise is a "significant factor" so that "the defendant has a fair opportunity to present his defense."3 Justice Marshall, writing for the Court, observed, "justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake."4
Most courts have recognized that the right to expert assistance is not limited to the mental health expert that was at issue in Ake, but extends to any significant area that may be contested at trial.5 Nevertheless, even though expert and investigative assistance is essential for a fair and reliable adversarial process, lower state and federal courts have limited the holding in Ake by placing upon defense counsel unreasonable burdens to show need for the assistance.
Relying upon a footnote in Caldwell v. Mississippi which dismissed a claim for expert assistance with the comment that "undeveloped assertions that the requested assistance would be beneficial" were insufficient,6 many courts have required an extensive showing of need that frequently cannot be made without the very expert assistance that is sought. Judge Frank Johnson has observed that these requirements create "a proverbial `Catch 22,' making it impossible for all but the most nimble (and prescient) defendant to obtain expert assistance."7
This column describes generally the procedural requirements created by lower courts which so often frustrate the holding of Ake, and the showing required of counsel to obtain funds or, if the motion for funds is denied, to preserve the issue for appellate review. This is necessarily only an introduction; counsel should conduct research in the jurisdiction of practice to see what showing individual state appellate courts have required.
Role of Defense Expert
The constitutional requirement of expert assistance is not satisfied by a court-appointed expert who reports to both sides. The routine practice of sending the defendant to the state mental facility for a report on competency and sanity does not satisfy Ake's requirement of an independent expert.The defense may need to consult in confidence with an expert to assess the validity of the conclusions reached by the prosecution's expert or to plan cross-examination.8 Thus, communications between the expert and counsel must be confidential. Unless the expert is going to be presented as a witness, the expert's advice is protected by the work product rule.
Discovery rules in most jurisdictions require disclosure of an expert's report only upon the decision of the defense to present the expert's testimony at trial.
Right to Ex Parte Hearings
It is generally recognized that defense counsel representing a poor client cannot constitutionally be required to reveal work product, confidential communications with the client or the nature of the defense to the prosecution by making a public request for expert or investigative assistance. As one federal court of appeals observed, it would raise serious equal protection questions if "an indigent defendant's case is subjected to pretrial scrutiny by the prosecutor, while the monied defendant is able to proceed without such scrutiny."9In order that the defendant not be prejudiced in this way because of his poverty, courts have held that applications for funds for expert and investigative assistance are to be made ex parte. In Ake itself, the Supreme Court stated that the threshold showing of need for an expert is to be made ex parte.10 The Oklahoma Court of Criminal Appeals has observed, "to allow participation, or even presence, by the state would thwart the Supreme Court's attempt to place indigent defendants, as nearly as possible, on a level of equality with nonindigent defendants."11
Showing Required
The failure of defense counsel to make an adequate showing of need may deprive the defendant of critical expert assistance. Several cases illustrate the substantial burden on defense counsel to make an adequate case-specific showing of need.For example, the denial of independent experts to examine hair, blood and physical evidence was upheld in Moore v. Kemp,12 a capital case, because of an inadequate showing of need and a failure to describe with specificity the type of expert desired and the use to be made of the expert.
Similarly, the denial of a mental health expert was upheld despite numerous motions for a psychiatrist by counsel in Messer v. Kemp.13 Although Messer's mental state was the only issue at both the guilt and penalty phases of his capital trial, the court upheld the denial of expert assistance because of the vague nature of defense counsel's request and counsel's failure to provide any factual basis for his belief that defendant had psychiatric problems. James Messer was executed despite the fact that the jury heard no evidence about the brain injuries he suffered in an automobile accident. Denial of a ballistics expert was upheld in another case because of an insufficient showing by defense counsel.14
The lesson of these cases and other similar cases is that boilerplate motions are not sufficient to get funds from a trial court or to preserve the issue for appeal. Defense counsel must demonstrate in detail why the expert is needed for the particular circumstances of the case. In light of the many cases requiring a detailed case-specific showing of need, filing a form motion for funds is simply malpractice.
In order to obtain expert assistance defense counsel must show the trial court (1) that the area of expertise will be a "significant factor" at the defendant's trial; (2) that there exists a reasonable probability that the expert requested will be of assistance to the defense either in preparing for the prosecution's experts or in presenting a defense, and (3) that the denial of expert assistance would result in a fundamentally unfair trial. These areas are interrelated. States have formulated the requirements in different ways15 and counsel must be familiar with the requirements of rules, statutes and appellate decisions in the state where the application is being made.
If defense counsel wants an expert to assist in confronting the prosecution's proof -- by helping counsel understand the area of expertise or preparing counsel to cross-examine the prosecution's experts -- counsel "must inform the court of the nature of the prosecution's case and how the requested expert would be useful. At the very least, [counsel] must inform the trial court about the nature of the crime and the evidence linking him to the crime."16
The motion must make it clear how the expert testimony is "significant" -- that it goes to a contested matter. The theory of defense to be advanced at trial is very important in seeking expert assistance. For example, an expert may be critical to challenging the state's evidence that a hair found on the victim could have come from the defendant if the defense is that the defendant was elsewhere and did not do the crime; it would not be critical if the defendant admitted killing the victim but argued self defense.
Counsel should also demonstrate that there is a basis for challenging the opinion of the prosecution's experts and that there are ways in which consultation with an independent defense expert will assist in defending against the prosecution's case. Some areas of expert testimony are more subjective or controversial than others. But even fairly straightforward areas in which state experts offer opinions, such as fingerprints, may be contested due to facts of certain cases, such as lack of qualifications or bias of the state's expert or deficiencies in the way in which the evidence was collected or analyzed in the particular case. Whatever the circumstances counsel must set them out in detail in the motion in order to show why an expert is required.
To obtain an expert to present an affirmative defense, counsel "must demonstrate a substantial basis for the defense."17 Thus, it may be necessary to reveal to the court the results of defense counsel's investigation to date, what counsel expects certain witnesses to testify to, and how the desired expert will assist in supporting the defense.
"[D]efense counsel is obligated to inform himself about the specific scientific area in question and to provide the court with as much information as possible concerning the usefulness of the requested expert to the defense case."18 Because counsel may not have access to an expert, it is often necessary to consult treatises, scientific journals, and other attorneys in order to make this showing. Some experts will provide free informal consultation and sign an affidavit to be used in seeking funds.
If the expert is to conduct tests or evaluations, counsel should also describe in the application how he or she will make the requested examination or analysis. For example, the motion should disclose whether the expert will need to examine evidence in the possession of the prosecution, what that evidence may be, what controls will be utilized, what tests will be conducted, what is the acceptance of those tests in the scientific community, and what they will be expected to show. It may be appropriate to attach and incorporate by reference articles from scientific journals or treatises which describe the tests to be utilized.
The most critical contested issues in many capital cases come at the penalty phase. Evidence of brain damage, fetal alcohol syndrome, abuse or neglect may provide a substantial case in mitigation. The services of a mitigation specialist, social worker and mental health expert may be essential to discovering, documenting and presenting the case for life. To obtain assistance in investigating and presenting mitigating evidence, counsel must describe what the defense expects to establish in mitigation and how critical the evidence is to the jury's determination of life and death. An application for a social worker or mitigation specialist should describe how that person will make an evaluation of the client's life and background by, for example, interviews with the client and members of the client's family, obtaining and evaluating records, and in other ways.
Counsel should provide the name, qualifications, resume, number of times the expert has testified previously, specialized knowledge in the area, and other information regarding the expertise of the person desired. It may also be appropriate in some instances to attach and incorporate by reference a copy of a transcript of testimony given by the expert in another case to set out the necessary information.
A motion for expert assistance should set out the particular area of expertise to be utilized by the defense. A general description of a vague area of expertise is not sufficient. For example, a denial of expert assistance was upheld in a case in which counsel requested only a "criminologist," and did not inform the court of the person's area of expertise or how he could contribute to the defense.19
The motion should also include the anticipated cost for services. Defense counsel should ask for what is needed to defend the client properly and preserve the issue if the court refuses to provide adequate funds. The Constitution does not impose a budget on counsel. It does not require counsel to choose between presenting a pathologist at the guilt phase and a mental health expert at the penalty phase. If both experts are needed to deal two different "significant factors" in order to ensure a fair trial, then the defense is entitled to both. However, a court may read Ake narrowly to limit the defense to a single competent expert on any contested issue. Counsel should also be mindful that Ake does not guarantee that defense counsel will get the particular expert requested. Thus, counsel must make a persuasive showing of the need for a particular expert such as the expert's specialization in the area, as well as convince the court of the reasonableness of the costs of the expert sought.
The detailed, case-specific showing required makes it imperative that the application be made ex parte as previously described and that any pleadings and transcripts be placed under seal.
Counsel should make supplemental motions for funds if the initial consultation with the expert indicates that additional time is needed or other tests should be conducted.
In order to meet these requirements, it is necessary for defense counsel to make substantial evidentiary showings at ex parte hearings. It is essential to do substantial research and conduct informal consultations with experts in order to make the threshold showing of need. Many experts will provide an initial free consultation in order to discuss with counsel whether their services would be appropriate with regard to counsel's inquiry and the cost of any such services.
Making the Record
Denial of a motion for funds is subject to appellate review like any other ruling. Defense counsel must be mindful of the need to preserve a record for appellate review.First, counsel must make the type of detailed showing previously described on the record.
Second, the motion for funds should be based upon the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as the state constitution and other applicable state law. In addition to denying due process and equal protection, the denial of funds can deny one a fair trial and the effective assistance of counsel since lawyers cannot be expected to effectively defend a case without the tools essential to do so.
Third, counsel should renew the motion as more investigation and preparation demonstrates further the need for the assistance. Counsel should point out at every opportunity during trial how the defense is being prejudiced by the lack of assistance.
Fourth, counsel should point out at every opportunity at trial and in the motion for a new trial how presentation of the defense case was prejudiced by the denial of funds or by the failure of the court to order sufficient funds.
Minimal Provisions
It should be emphasized that this column describes only minimal provisions for funds which are constitutionally required. State statutes, administrators of indigent defense systems or conscientious judges may provide for considerably more assistance than what is required by Ake in order to ensure a fair trial. Defense counsel must vigorously litigate applications for expert and investigative assistance.
Notes
1. Griffin v. Illinois, 351 U.S. 12 (1956).2. 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985).
3. Id. at ___.
4. Id. at 76.
5. See, e.g., Thornton v. State, 255 Ga. 434 (1986) (defendant was entitled to funds for appointment of a forensic dental expert).
6. Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985).
7. Moore v. Kemp, 809 F.2d 702, 742 (11th Cir. 1987) (en banc) (Johnson, J., dissenting).
8. See, e.g., Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990).
9. United States v. Meriwether, 486 F.2d 498 (5th Cir. 1973), cert. denied, 417 U.S. 948 (1974). See also United States v. Edwards, 488 F.2d 1154, 1162 (5th Cir. 1974) ("Dissemination of information critical to the defense permits the government to enjoy unauthorized discovery which is forbidden under our concept of criminal procedure . . . .")
10. 470 U.S. at 82-83.
11. McGregor v. State, 733 P.2d 416 (Okla. Crim. App. 1987) [emphasis added]), reaffirmed in McGregor v. State, 754 P.2d 1216 (1988). See also Brooks v. State, 259 Ga. 562, 385 S.E.2d 81 (1989) (indigent defendant has the right to present applications for funds for expert and investigative assistance ex parte out of the presence of the District Attorney and the public; records and transcripts are to be placed under seal).
12. 809 F.2d 702 (11th Cir. 1987) (en banc).
13. 831 F.2d 946 (11th Cir. 1987) (en banc).
14. Stephens v. Kemp, 846 F.2d 642 (11th Cir. 1988).
15. See, e.g., Roseboro v. State, 365 S.E.2d 115 (Ga. 1988), in which the Georgia Supreme Court held that "a motion on behalf of an indigent defendant for funds with which to obtain the services of a scientific expert should disclose to the trial court, with a reasonable degree of precision, why certain evidence is critical, what type of scientific testimony is needed, what that expert proposes to do with the evidence, and the anticipated cost for services. Lacking this information, a trial court will find it difficult to assess the need for assistance."
16. Moore, 809 F.2d at 712.
17. Id.
18. Id.
19. Id. at 718.