SADO Attorney Erin Van Campen Successfully Litigates Right to Expert Assistance

People v Kennedy (issued June 29, 2018)
For decades, Michigan’s appellate courts reviewed indigent defendants’ requests for funds to hire experts under MCL 775.15, rather than under the constitutional standard.
Recently, the Michigan Supreme Court adopted the constitutional standard. People v Kennedy, __ Mich __ (2018) (issued June 29, 2018). The constitutional standard is easier for indigent defendants to satisfy. This change in our jurisprudence brings Michigan in line with federal authorities and the majority of states. The Court also recognized that indigent defendants may be entitled to a far broader range of expert assistance than previously contemplated by Michigan courts.

Under Federal Jurisprudence, Indigent Defendants’ Rights to Expert Assistance at State Expense is Well-Established

In Ake v Oklahoma, the United States Supreme Court first recognized that indigent defendants’ rights to a fundamentally fair trial may require the state to provide the defense with funds for expert assistance.  Ake v Oklahoma, 470 US 68 (1985). Whether the state can deny the defendant access to an independent expert turns on the application of the three-factor due process balancing test from Mathews v Eldridge, 424 US 319 (1976).

In Ake, the Supreme Court applied Mathews to determine that the defendant was entitled to the appointment of an independent psychiatric expert because the defendant’s sanity was a significant factor at trial.

The United States Supreme Court recently reaffirmed Ake and clarified the full range of assistance a psychiatric expert can offer the defense in McWilliams v Dunn, __ US __; 137 S Ct 1790 (2017). The Court held that Ake does not merely require the appointment of an expert for an independent psychiatric evaluation.  In some cases, Ake requires states to provide the defense with “access to a competent psychiatrist who will conduct an appropriate [1] examination and assist in [2] evaluation, [3] preparation, and [4] presentation of the defense.”

The Michigan Supreme Court’s decision in Kennedy recognizes, for the first time, that Ake applies to indigent defendants’ requests for expert assistance in Michigan. This represents a significant shift in Michigan’s jurisprudence.

First, it should now be easier for defendants to make the showing necessary for them to obtain funds for expert assistance.  Second, it should now be possible for defendants to obtain a much broader range of assistance from experts. Finally, where such requests are denied, they will be subject to the far more favorable harmless error standard of People v Anderson, 446 Mich 392 (1994), so long as the initial request was made on constitutional grounds.

Michigan’s Jurisprudence Historically Ignored Ake, Instead Applying MCL 775.15

In Michigan, courts historically applied  MCL 775.15 and disregarded the constitutional analysis altogether. The Michigan Supreme Court continued this practice in its own decisions in People v Jacobsen, 448 Mich 639 (1995) and People v Tanner, 469 Mich 437 (2003).

MCL 775.15 was enacted nearly a century ago and was intended to provide the defense with a means to obtain and serve subpoenas for necessary witnesses to appear at trial at the state’s expense.  It has been routinely applied to require Michigan defendants to make a specific and affirmative showing that expert testimony would necessarily benefit the defense at trial in order to gain access to funds for any expert assistance.

Michigan Supreme Court Holds that MCL 775.15 Does Not Control and is Inadequate to Satisfy Defendants’ Constitutional Rights.

In Kennedy, the Michigan Supreme Court reviewed the history of MCL 775.15 and its application by Michigan courts.  The Court concluded that MCL 775.15 “does not provide for the appointment of expert witnesses.”  It overruled Jacobsen and Tanner “to the extent they hold or suggest to the contrary.” The Court clarified: “Instead we hold – as we must – that the Ake due process analysis governs such requests.”

In its opinion, the Court noted that if MCL 775.15 applied to such requests, “it would only cover a small sliver of what Ake requires.”  This is because MCL 775.15 only provides the defense access to expert assistance when the judge is satisfied that the defendant cannot “safely proceed to a trial” without the expert’s testimony. In contrast, the constitutional standard may require the state to provide a defendant with expert assistance for independent testing, evaluation of the evidence, and preparation of the defense.

Finally, the Court acknowledged that the application of MCL 775.15 to requests for expert assistance had created an unworkable rule.  In order to get expert assistance, a defendant would have to make a detailed showing, with a high degree of certainty, that the assistance sought would benefit the defense.  This could be an impossible burden because a defendant may not be aware of exactly how an expert would aid his defense until after he retains and consults that expert.

Michigan Supreme Court Holds that Ake Applies to All Experts and All Cases

While the Ake Court specifically addressed the need for a psychiatric expert, the majority of states have found that Ake applies to a wide range of experts.  And while the Ake Court specifically addressed the right to expert assistance in a capital case, the majority of states have found that Ake applies much more broadly.

In Kennedy, the Court held that Ake’s due process analysis is not limited to psychiatric experts. Further, the reasoning of Ake is not limited to capital cases.  Rather it applies to all criminal prosecutions because “the principle of fundamental fairness…does not rest upon the severity of the sanction sought or imposed.”

Michigan Supreme Court Clarifies the Showing Required to Obtain Funds for Expert Assistance

In deciding how requests for expert assistance should be reviewed going forward, the Michigan Supreme Court adopted the reasonable probability standard applied by the majority of states. See Moore v Kemp, 809 F2d 702 (CA 11 1987). This standard requires the defense to show the trial court that: (1) there is a reasonable probability that the expert would be of assistance to the defense; and (2) there is a reasonable probability that the denial of expert assistance would result in a fundamentally unfair trial.

This standard functions like a materiality requirement. In other words, the defendant must show the need for the expert is tied to the facts of the case, the evidence relied upon by the state, or is necessary to support an affirmative defense.  This is clear from the Moore decision, which the Michigan Supreme Court quoted at length in Kennedy:

[A] defendant must demonstrate something more than a mere possibility of assistance from the requested expert… Thus, if a defendant wants an expert to assist his attorney in confronting the prosecution’s proof-by preparing counsel to cross-examine the prosecution’s experts or by providing rebuttal testimony-he must inform the court of the nature of the prosecution’s case and how the requested expert would be useful. At the very least, he must inform the trial court about the nature of the crime and the evidence linking him to the crime. …In each instance, the defendant’s showing must also include a specific description of the expert or experts desired…In addition, the defendant should inform the court why the particular expert is necessary. We recognize that defense counsel may be unfamiliar with the specific scientific theories implicated in a case and therefore cannot be expected to provide the court with a detailed analysis of the assistance an appointed expert might provide. We do believe, however, that defense 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’s case.

The Kennedy decision is one that will positively impact Michigan’s criminal jurisprudence.

By: Erin Van Campen
SADO Assistant Defender

Read the entire opinion here.