The Indigent’s Right To Demand Expert Assistance

Imagine being the lawyer assigned to handle a high-profile, “cold” [twenty year old] murder case where the evidence was all scientific:  The swab from [the victim’s] left fingernail included a mixture of DNA profiles…[and] defendant’s DNA profile matched the major donor’s. Vaginal and rectal swabs…also matched defendant’s DNA profile.“  What do you need?  You need to master the science of DNA – you may not need an expert to testify for the defense, but you certainly need expert assistance in making that decision, and in deciding whether and how the case can be defended.

Now imagine that you petition the trial court for funds and are told “I’m not going to appoint him for  that. You can talk to him[;] you can read up on him and go to the conference which all the rest of us have done that[.]”

As the quotation marks indicate, this is not an imagined monologue; it is instead excerpted from the trial transcript in People v. Kennedy, No. 154445, 2018 Mich. LEXIS 1174, at *4-5 (June 29, 2018).  The expert assistance was denied, Kennedy was convicted, and an appeal followed.  That is where the story changed, and in doing so made clear what Due Process and the meaningful right to counsel embody – assistance, including funding for lawyers to learn.

What did the Michigan Supreme Court hold?  It first analyzed Ake v. Oklahoma, the seminal case guaranteeing indigent defendants access to funds for psychiatric expert assistance in a capital case.   It began with two findings:

There is a burgeoning consensus that Ake‘s due process analysis is not limited to psychiatric experts—a point the prosecutor here concedes. And the vast majority of courts have held that although Ake involved a capital case, its reasoning is not limited to such cases. We agree with both conclusions.

What the Court then had to grapple with was defining what a lawyer needed to show before funding would be granted.  It began by noting the conundrum:

Until an expert is consulted, a defendant might often be unaware of how, precisely, the expert would aid the defense. If, in such cases, the defendant were required to prove in detail with a high degree of certainty that an expert would benefit the defense, the defendant would essentially be tasked with the impossible: to get an expert, the defendant would need to already know what the expert would say. At the same time, the defendant’s bare assertion that an expert would be beneficial cannot, without more, entitle him or her to an expert; otherwise, every defendant would receive funds for experts upon request.

The test Michigan endorsed is the “reasonable probability” standard: “”a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.”

Kennedy’s case was remanded for the lower court to determine if that threshold had been satisfied.  But there are many Kennedys, and many types of expert or purportedly expert disciplines being presented in courtrooms nationally.  The Kennedy decision is a critical reminder of, and template for, the Due Process protection for the indigent and those charged with their effective representation.  And kudos to Kennedy’s lawyer for knowing how important it is to consult an expert, and for fighting for the right to do so.