Chapter 1: United States Supreme Court Cases: 
Little; Ake; Caldwell

Federal and other state courts have found that their statutes and the Constitutions of their states and the United States require experts for indigent criminal defendants when there is a reasonable showing of need for investigation, testing, consultation, and testimony.1

In Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1985), a paternity action which is only quasi-criminal, the Court held that under 14th amendment due process the state cannot deny the putative father blood grouping tests if he cannot otherwise afford them because the indigent father is entitled to a meaningful opportunity to be heard.

If money is required for expert assistance in that quasi-criminal case, it is constitutionally required in cases where a defendant's mental state is in issue or where an expert is needed to assist in the marshalling of the defense.

Competent, confidential assistance by experts, mental health, medical, investigative, forensic is frequently crucial to the defendant's ability to effectively challenge his criminal responsibility by effectively presenting his defense. The United States Supreme Court has told us that competent defense advocacy requires independent expert assistance on critical matters in issue, like the mental state of the accused.

In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) the Court determined a defendant is entitled to meaningful use of a psychiatrist at trial when:

...the State has made the defendant's mental condition relevant to his criminal culpability and to the punishment he might suffer.... Id. at 1095.

...the defendant's mental condition is seriously in question. Id. at 1097.

...mental state at the time of the offense was a substantial factor in his defense.... Id. at 1098.
 

 When the mental state of the defendant is "seriously in question," 14th amendment due process requires the state to: ...at a minimum, assure the defendant ac-cess to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. Id. at 1097. Ake's holding was premised on the critical nature of the expertise and opinions of experts to effectively present a defense on matters the state has made essential to criminal culpability: [W]hen the State has made the defendant's mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his defense. Id. at 1095. While Ake recognizes that an "...indigent defen-dant [does not have] a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own," Id. at 1097, Ake unmistakably recognizes that when a state through its statutes, its practices or through the action of a trial judge, does not permit an indi-gent defendant whose defense is insanity to hire his own mental health expert but instead forces the indigent to use a state-employed expert, the accused is constitutionally entitled to the following from that state expert:
1. one who is a psychiatrist;

2. competent, effective, 105 S.Ct. at 1093, 1097;

3. evaluation of and opinions on mental states for guilt/punishment, 105 S.Ct. at 1095, 1097, 1098;

4. marshal defense, evaluate, prepare, present, 105 S.Ct. at 1095, 1097;

5. penalty phase assistance, 105 S.Ct. at 1097;

6. assistance in cross-examining state experts, 105 S.Ct. at 1096;

7. rebuttal state expert, 105 S.Ct. at 1097;

8. confidential help, 105 S.Ct. at 1097 (ex parte);

9. meaningful access to justice, 105 S.Ct. at 1094.

Let's take an example of a case where the defendant's mental state is the only issue at trial. The jurors have to determine if under KRS 504.020 the defendant, as a result of his mental illness or retardation, lacked substantial capacity either to: 1) appreciate the criminality of his conduct; or

2) conform his conduct to the requirements of the law.

 The indigent defendant is statutorily and consti-tutionally entitled to be provided with the inde-pendent, competent assistance necessary to effectively marshal evidence on these issues and effectively cross-examine and rebut the state's evidence of insanity.

Be careful in how you think about this and litigate your case. When the request for funds for resources is general and undocumented, the Constitution does not require giving the indigent the money. In Caldwell v. Mississippi,

472 U.S. 320, 105, 1633, 2637 n.1, 86 L.Ed.2d 231 (1985) Justice Marshall writing for the Court found "no deprivation of due process" in the denial of funds for an investigator, fingerprint examiner and ballistics expert based on the defense's "undeveloped assertions that the requested assistance would be beneficial." Id.

TABLE OF AUTHORITIES

Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1985)

Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)

Caldwell v. Mississippi, 472 U.S. 320, 105, 1633, 2637 n.1, 86 L.Ed.2d 231 (1985)

FOOTNOTES

1See, e.g., United States v. Pope, 251 F.Supp. 234 (D.Neb. 1966) (firearms); Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975) (firearms); Common-wealth v. Bolduc, 411 N.E.2d 483 (Mass.Ct.App. 1980) (ballistics); Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980) (pathologist); People v. Hatterson, 405 N.Y.S.2d 296 (1978) (physician in sex case); United States v. Tate, 419 F.2d 131 (6th Cir. 1969) (psychiatrist); Burns v. State, 312 S.E.2d 317 (Ga. 1984) (blood test in paternity case); State v. Poulsen, 726 P.2d 1036 (Wash.Ct. App. 1986) (money for psychologist for diminished capacity defense); Little v. Armontrout, 835 F.2d 1240, 1243-45 (8th Cir. 1987) (hypnotist).

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