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Why Do the Poor Get a Free Attorney? The Legal Aspects of the 6th Amendment

March 11, 2006

(Read Part 1 of this Article)

As lower courts have struggled to define �basic tools,� they have asked whether the particular resource requested by an indigent defendant is a �virtual necessity� for the defense.[19] For example, the Ninth Circuit has held that Ake does not extend to appointment of expert on eyewitness identification, where that issue is only one of several issues in contention.[20]� Likewise, in Williams v. Merkle,[21] the court held that the state trial court properly used its discretion in refusing to admit his expert testimony on eyewitness identification.[22]� Thus, �basic tool� has come to mean not just something fundamental to a defendant�s legal arsenal, but a resource without which the defense fails.�� Professor David Harris summarizes this detrimental issue succinctly:

Under this interpretation, most expert services remain luxuries for indigent defendants because the tasks experts perform and the issues with which they deal are not usually outcome determinative by themselves. Rather, the service any one expert or investigator provides is typically germane only to one or a few elements of the crime. If any one of the links in the evidentiary chain weakens, an acquittal may result, but this usually does not depend on the testimony of a single expert, such as the psychiatrist in Ake. Since lower courts have interpreted Ake to mean that the defense receives assistance only when the accused�s case will fail without it, the basic tools standard does very little for most indigent defendants.[23]

After Ake, several technological developments complicated the right to expert assistance for indigent defendants.� The first of these developments, the advent of DNA evidence, dramatically changed the legal landscape, as no other technique had been as complex or subject to rapid change further complicated matters.[24]� Few defense attorneys can deal with the sophistication required for DNA evidence without expert assistance.� The National Academy of Sciences recommended appointment of defense DNA experts in every case, however, the courts have been far more restrictive.[25]

Under Ake, �the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense.�[26]� The right to a psychiatrist expert was the issue in Smith v. McCormick,[27] in which the Ninth Circuit held that a defendant�s due process rights in the penalty phase were violated by the trial court�s refusal to provide expert assistance.[28] The court held that the right to psychiatric assistance is not satisfied by appointing a �neutral� psychiatrist, but requires �the right to use the services of a psychiatrist in whatever capacity defense counsel deems appropriate � including to decide, with the psychiatrist�s assistance, not to present to the court particular claims of mental impairment.�[29] Additionally many circuits, including the Ninth, have allowed indigent defendants to obtain several other types of publicly funded experts, provided there is a substantial need.� These other areas of expertise include pathology,[30] DNA,[31] fingerprint analysis,[32] handwriting,[33] arson,[34] ballistics,[35] auto-theft,[36] toxicology,[37] additional investigators,[38] social workers,[39] and hypnotists.[40]� Jury Specialists have also been provided by the court for in California.[41]� However, the defense still needs to present a crucial need for the expert, no matter the field of expertise.� In contrast, the prosecution does not need to show nearly the same level of need, even considering the public nature of the funding.[42] This issue will be discussed further in Section V.

Mitigation investigators have been held to be necessary in death penalty cases by both the Supreme Court and the Ninth Circuit.� In Romplilla v. Beard,[43] the Supreme Court adhered to the ABA Guidelines[44] in holding that defense investigations into mitigating evidence �should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.[45]� In In re Lucas,[46] the Ninth Circuit also held that an investigation into mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence.� The court noted that the jury was faced only with evidence of petitioner�s ruthlessness and violence, without any evidence making the jury aware of the defendant�s childhood experience of rejection and extraordinary abuse at the hands of his family.[47]� The court concluded that a reasonable probability existed that the jury would have found in this evidence some explanation for petitioner�s criminal propensities and some basis for the exercise of mercy.[48]� Had the defense counsel presented mitigating evidence, the jury may have reasonably reached a different verdict � one that �at least one juror would have struck a different balance.�[49]


[19] United States v. Austin, 933 F.2d 833, 841 (10th Cir. 1991) (with psychiatric aid, either insanity or absence of criminal intent may have been available as defenses); Jackson v. Ylst, 921 F.2d 882, 885-87 (9th Cir. 1990) (Ake does not extend to appointment of expert on eyewitness identification, where that issue is only one of several issues in contention); Kansas v. Call, 760 F. Supp. 190, 192 (D. Kan. 1991) (Ake does not extend to DEA agents who could have offered testimony concerning marijuana supplies); Clark v. State, 562 N.E.2d 11, 14-15 (Ind. 1990) (funds to hire expert witnesses on arson and medical issues, including inconsistency of defendant�s injuries with prosecution�s case, properly denied); Hough v. State, 560 N.E.2d 511, 515-17 (Ind. 1990) (requests for psychologists and ballistics expert denied as not mandated by Ake and because defendant offered no evidence to think such experts would differ with state experts); State v. Zuniga, 357 S.E. 2d 898, 908 (N.C. 1987) (unless defendant shows reasonable likelihood of fundamentally unfair trial, request for investigator properly denied); State v. Massey, 342 S.E.2d 811, 816 (N.C. 1986) (Ake requires hiring a state-funded psychiatrist only when sanity is a significant factor in the case; it does not require hiring psychiatrist to assist in determining whether defendant�s mental capacity was such that he could have voluntarily and intelligently waived Miranda rights); Tibbs v. State, 819 P.2d 1372, 1376-77 (Okla. Crim. App. 1991) (requests for medical doctor, fingerprint expert and criminal investigator denied in case where defense was that another person committed the crime because, inter alia, defendant failed to demonstrate �specific need� under Ake); Williamson v. State, 812 P.2d 384, 395-96 (Okla. Crim. App. 1991) (refusal to grant motion for state-funded hair and serology expert did not violate due process, because, inter alia, evidence in scientific subjects can be addressed through cross-examination); Banks v. State, 810 P.2d 1286, 1293 (Okla. Crim. App. 1991) (cross-examination of state�s expert adequately substitutes for defense expert who could have discredited �extremely damaging fingerprint evidence�); Shelton v. State, 793 P.2d 866, 873-74 (Okla. Crim. App. 1990) (appointment of investigator refused, because defendant did not demonstrate that �he was denied access to evidence which is material to either guilt or punishment � and substantial prejudice�); Munson v. State, 758 P.2d 324, 330 (Okla. Crim. App. 1988) (denial of funds for serologist, hair analyst, chemist and investigator reversed only if defendant shows substantial prejudice from clear and convincing evidence but see United States v. Sloan, 776 F.2d 926, 929 (10th Cir. 1985) (Ake covers experts on mental condition as well as sanity); State v. Poulson, 726 P.2d 1036, 1038 (Wash. Ct. App. 1986) (Ake speaks in terms of sanity but does not preclude the applicability of its rationale to the broader scope of a defendant�s mental condition, so Ake also covers experts on diminished capacity); Luckey v. Harris, 860 F.2d 1012, 1018 (11th Cir. 1988), rev�d on other grounds, 918 F.2d 888 (11th Cir. 1990) (systematic denial of, inter alia, investigative and expert resources to indigent defendants states cognizable federal claim).

[20] Jackson v. Ylst, 921 F.2d 882, 885-87 (9th Cir. 1990)

[21] Williams v. Merkle, 94 Fed. Appx. 562 (2004).

[22] Id. at 562 n3.

[23] David A. Harris, Criminal Law: The Consititution and Truth Seeking: A New Theory on Expert Services for Indigent Defendants, 83 J. Crim. L. & Criminology 469, 475 (1992).

[24] Paul C. Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L. Rev. 1305, 1313 (2004)

[25]�� Nat�l Research Council, The Evaluation of Forensic DNA Evidence (1996); Nat�l Research Council, DNA Technology in Forensic Science (1992) (�When the prosecutor proposes to use DNA typing evidence or when it has been used in the investigation of the case, an expert should be routinely available to the defendant.�); United States v. Stifel, 433 F.2d 431, 441 (6th Cir. 1970); see also Chao v. State, 780 A.2d 1060, 1067 (Del. 2001) (�In an unusual case, an indigent defendant may be entitled to public funds to retain an expert on complex or novel technical issues � .�); see also� State v. Huchting, 927 S.W.2d 411, 420 (Mo. Ct. App. 1996) (disagreeing with the argument that the average attorney is unable to defend against DNA evidence, because �even a cursory perusal of the literature in this area reveals copious lists of questions for defense attorneys to use in cross-examinations and other strategies for undermining the weight of DNA evidence�); Husske v. Commonwealth, 476 S.E.2d 920, 925 (Va. 1996) (recognizing that Ake guarantees the ��basic tools of an adequate defense[,]� [which] may include the appointment of non-psychiatric experts[,]� but requiring the defendant to show that the assistance of the expert is �likely to be a significant factor in his defense� and that he will be prejudiced by the lack of that assistance before the Commonwealth appoints the expert (citations omitted)).

[26] Ake, 470 U.S. at 83.

[27] 914 F.2d 1153, 1157 (9th Cir. 1989)

[28] Id. at 1157.

[29] Id.

[30] State v. Burns, 4 P.3d 795 (Utah 2000) (Medical expert necessary on cause of death to allow meaningful defense, effective cross-examination of state�s expert, and �to make any informed decision with respect to plea bargaining�); Harrison v. State, 635 So.2d 894 (Miss. 1994) (trial court�s failure to grant funds for a defense forensic pathologist and forensic odontologist resulted in denial of due process because the only testimony on the crucial issue of whether defendant had raped the victim prior to her death came from two state experts; although defense motion was inadequate, inadequacy was attributed to state�s withholding of its experts� opinions in violation of discovery obligation);

[31] DuBose v. State, 662 So.2d 1189 (Ala. 1995)(capital case)(defendant entitled to DNA expert because DNA evidence found in semen was only evidence linking defendant to the crime, defense counsel could not be expected to respond to state�s evidence without expert assistance, and evidence was subject to varying expert opinions); Cade v. State, 658 So.2d 550 (Fla. Dist. Ct. App. 1995), review denied, 663 So.2d 631 (1995) (noting that scientific evidence is �impressive� to a jury and, in this case, the DNA evidence was the strongest part of the prosecution�s case, court reversed conviction because of trial court�s failure to provide $3,000 for defense DNA expert)(court cites cases that refuse to apply harmless error analysis to Ake violations, and notes there is no basis on which to find absence of expert assistance was harmless here).

[32] State v. Bridges, 385 S.E.2d 337 (N.C. 1989)(capital case) (reversal required where state expert�s testimony that latent thumbprints matched defendant was the only direct evidence linking defendant to crime, defendant was unable to assess adequately state expert�s conclusions without expert assistance, and court could not say error was harmless); People v. Lawson, 644 N.E.2d 1172 (Ill. 1994) (a defense fingerprint/shoe-print expert was necessary because the state relied heavily on its own expert to place defendant at the scene of the crime and a defense expert could have refuted the state�s expert and aided the defense counsel in cross-examination)(court found that the defense cross-examination of the state expert, which was done without expert assistance, �could not constitute a sufficient defense on this issue�)

[33] People v. Dickerson, 606 N.E.2d 762 (Ill. App. Ct. 1992) (trial court erred in vacating order granting defense request for handwriting expert after state amended complaint by dropping forgery charge and alleging only delivery of a forged document; defendant was still entitled to expert because handwriting analysis could have forced the state to rely solely on circumstantial evidence and could have weakened the credibility of state�s witnesses).

[34] Sommers v. Kentucky, 843 S.W.2d 879 (Ky. 1992)(non-Ake based case)(where cause of fire and cause of death were �matters of crucial dispute, resolvable only through circumstantial evidence and expert opinion,� defendant established �reasonable necessity� for independent pathologist and arson expert)(defendant presented affidavits from state experts stating that as law enforcement officers it would be a conflict of interest for them to be confidential consultants to the defense in a criminal case)(although case was decided on state law grounds, both sides concede that due process requires state to provide funds necessary for indigent to mount a defense).

[35] Ex parte Moody, 684 So.2d 114, 119 (Ala. 1996) (extending Ake to cover ballistics experts).

[36] People v. Evans, 534 N.Y.S.2d 640 (N.Y. Sup. Ct. 1988) (due process required that defendant�who had �succeeded in raising doubts� about ownership of vehicles he was accused of burning� have access to police department Auto Crime Unit experts, given that department �holds a monopoly of expertise� on this subject).

[37] Sanabria v. Superior Court of Santa Clara County, 2004 WL 249865 (Cal.App. 6th Dist. Feb. 11, 2004)(unpublished) (holding the trial court abused its discretion by denying funds to retain an expert regarding the effects of alcohol and drug consumption because voluntary intoxication is relevant to specific intent notwithstanding the abolition of the diminished capacity defense); City of Mount Vernon v. Cochran,
855 P.2d 1180 (Wash. App. Div. 1993) (trial court did not abuse its discretion by appointing expert to challenge reliability of breath alcohol machine).

[38] In Re Wilson, 509 N.W.2d 568 (Minn. 1993) (when state-funded public defender runs out of money, the counties must bear the costs of providing a defendant with necessary investigative and psychiatric services)

[39] In Matter of Application by Director of Assigned Counsel of New York, 603 N.Y.S.2d 676 (N.Y. Sup. Ct. 1993), aff�d, 207 A.2d 307 (N.Y. Sup. Ct. 1994) (court found that a reasonable fee for a certified social worker assigned to provide expert services to an indigent defendant was $100 per).

[40] Little v. Armontrout, 835 F.2d 1240 (8th Cir. 1987), cert. denied, 487 U.S. 1210 (1988) (denial of state-provided hypnosis expert to assist in challenging rape victim�s post-hypnotic identification of defendant �probably had a material impact on the trial� and denied defendant due process of law).

[41] Corenevsky v. Superior Court, 36 Cal. 3d 307 (1984).


[43] Rompilla v. Beard, 125 S. Ct. 2456 (U.S. 2005).

[44] Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, February 2003, available at:
[45] Rompilla, 125 S. Ct. at 2467.

[46] In re Lucas, 33 Cal. 4th 682 (2004)

[47] Id. at 690.

[48] Id.

[49] Id.; see also Wiggins v. Smith 539 U.S. 510, 537 (2003).