When your drug case (drugs is used to include alcohol) dictates a need for defense expert, there is caselaw to support your request for funds to employ one. Some of the supporting legal reasoning and authority is discussed in this article for DUI cases (KRS Chapter 189A), controlled substance cases (KRS Chapter 218A), and for pretrial issues such as suppressing a confession. Also discussed are cases involving the influence of drugs on behavior as a defense to the crime and as mitigation of punishment.

In a section entitled "Policy of 'Benign Neglect,'" Edward Fitzgerald and David Hume in their work Intoxication Test Evidence: Criminal & Civil (1987) rightly recognize that criminal defense attorneys have benignly disregarded challenges to assumptions, myths and presumptions used against our clients.

Those who think they are the most objective are probably the least objective of all.   -- Edmund Teller

 
 
"We are now, however, as a profession, suffering from those years of 'benign neglect.' Many poor practices developed in the field, the majority of which were generally favorable to the prosecution, and which were allowed to slip by unchallenged. Over-interpretation of
the significance of a given BAC; failure to relate the later test BAC back to the 'offense' time; failure to save a sample for independent testing; failure to obtain a second test sample about an hour after the first; failure to allow for individual differences -- these are but a few of the commonplace practices now 'accepted' as normal and routine. Now, however, the trial bar has been forced to 'find' qualified experts to defend tough cases, and a learning process has been underway. Once used, and once educated by that use, criminal and civil attorneys tend to turn to those same experts more readily, even for the simple OUI cases as well. Inevitably, more 'close' cases will be won than had been the case for many years, and many unacceptable prosecution practices will end up being challenged with renewed vigor by the trial bar. Many civil liability cases, which in the past would have been conceded without a fight by many attorneys as soon as that damning post-accident or post-mortem BAC made its appearance, will now (quite properly) be vigorously investigated and pursued by counsel who have been forced to become knowledgeable about an area he or she had previously ignored. Many individuals not previously involved directly in this area (physicians, chemists, toxicologists) have now become involved as experts, as will others in the future." Id. at §13:3, p. 623.

There are various ways experts can be used at different stages of the proceeding. Experts in drug cases can serve a variety of defense needs:

1. Finding. Investigation;
2. Analyzing. Evaluation, testing;
3. Testifying. Testifying to advance a defense or mitigation;
4. Rebutting. Testifying to rebut a prosecu-tion expert or to rebut aggravation;
5. Consulting. Consultation on preparation of cross-examination of the state's expert(s).

An effective demonstration of the reasonable necessity for funds for defense expert resources in drug cases will likely involve an evidentiary showing of the following ten dimensions:

1. type of the expert (e.g., toxicologist, mental health, chemist, pharmacologist);
2. nature & stage of assistance;
3. the name of the expert who will provide the help, qualifications of that person;
4. reasonableness of the rates and total expected cost;
5. factual basis for the resources in this drug case including how the expert's help is critical to your theory of the case and relevant themes;
6. counsel's observations, knowledge, in-sights about this drug case and this de-fendant;
7. legal bases for expert in this drug case;
8. legal reasons for defense drug re-sources;
9. inadequacy of state resources, or un-availability of state resources; and
10. evidentiary documentation.

Persuasive defense themes in drug cases which implicate the need for expert assistance to competently represent the defendant include:

• Things are not always what they appear to be.

• Breath-testing machines are based on gen-eral presumptions which are fallacious for certain individuals.

• Machines malfunction.

• Contamination of samples.

• Humans make mistakes.

• All testing by experts involves substantial judgment by humans.

• Drugs/Alcohol influence a person's behavior and mental state.

• Truth can be stranger than fiction.

• Certainty is impossible.

In most jurisdictions, a criminal defendant is routinely entitled to access the material evi-dence in possession of the prosecution in order to examine, analyze it or test it.

In Kentucky it is clear that a criminal defen-dant is entitled to material evidence to analyze and test. In James v. Commonwealth, 482 S.W.2d 92 (Ky. 1972) the Court held that the defense in an illegal sale of narcotics prosecution was entitled to inspect the reports of the prosecution expert and to have a sample of the substance to test by the defense chemist. "A cat and mouse game whereby the Commonwealth is permitted to withhold important information requested by the accused cannot be countenanced." Id. at 94.

If the evidence has been used up in testing by the prosecution expert or destroyed by the prosecution, the defense is entitled to a copy of the expert's notes. In Green v. Commonwealth, 684 S.W.2d 13 (Ky.App. 1984), a Schedule II con-trolled substance (dilaudid) case, the Court recognized that "the right to testing is implicit under RCr 7.24." Id. at 16. In Green, the prosecution's forensic chemist unnecessarily but unintentionally consumed the entire tablet so the defense was not able to obtain anything to have independently tested. The Court held the "results inadmissible, unless the defendant is provided a reasonable opportunity to partici-pate in the testing, or is provided with the notes and other information incidental to the testing, sufficient to enable him to obtain his own expert evaluation." Id. at 16.

In most cases the defense will need their own expert to either retest the substance or review the notes of the prosecution expert in order to render an opinion.

In Patterson v. State, 232 S.E.2d 233 (Ga. 1977) the defendant was convicted of posses-sion of marijuana and sentenced to 2 years and $2,000. The Court recognized "the general right of a defendant charged with possession or sale of a prohibited substance to have an expert of his own choosing analyze it independently. Where the defendant's conviction or acquittal is dependent upon the identification of the substance as contraband, due process of law requires that analysis of the substance not be left completely within the province of the state." Id. at 234.

Failure of the defense to obtain the right to analyze and test the alleged substance is fraught with various dangers. See Leo G. Smith, "Defending Drug Cases," The Advocate, Vol. 18, No. 1 (January 1996) at 22.

"The identification of controlled substances is generally made using validated methods that have been accepted by the FBI, DEA, EPA, and FDA, as well as pharmaceutical companies, private laboratories, and by some police labs. Surprisingly, many police laboratories fail to use these validated methods and rely instead on procedures and methods of substance analysis which are suspect and imprecise." James J. Martorano & Dr. Mark Solomon, Drug Evidence and Scientific Testimony: Rigorous Advocacy Put to the Test, NLADA Cornerstone, Vol. 14, No. 4 (1992/1993) at 1-2. Martorano and Solomon detail "six standards that must be met to establish a scientifically validated result":

"1. Are there overlapping peaks?

"The greatest possibility for error comes at the time of the subjective interpretation of the mass spectrum." Id. Imwinkelreid, Jackson v. Virginia: Reopening the Pandora's Box of the Legal Sufficiency of Drug Identification Evidence, 73 Ky.L.J., (1984-85).

Because of the potential for error, courts understand that indigent defendants are en-titled to funds to hire experts to test and analyze the substances in question.

In State v. Hanson, 278 N.W.2d 198 (S.D. 1979) Terry Hanson was convicted of 5 counts of distributing marijuana. The trial judge refused to permit the defense to have access to the alleged controlled substance for testing, and refused to order funds for an independent expert to test it on behalf of the defense.

The South Dakota Supreme Court held that in order to "confront the evidence against him" and be able to "prepare an adequate defense, the indigent defendant must be provided "an independent expert to evaluate the substance in question...." Id. at 200-01.

The justifying rationale of the Court was straightforward. The "defense cannot challenge an expert's determination with anything other than another expert. The defendant thus cannot lay any foundation for appointment of an expert other than to allege that he doubts the veracity of the State's tests, and believes that an independent test is essential.... It would be an empty gesture to give defendant a sample of the alleged marijuana, while at the same time refusing to provide an independent expert to evaluate it." Id. at 201.

In McBride v. State, 838 S.W.2d 248 (Tx.Ct. Crim.App. 1992) (en banc) Israel McBride was convicted of possession of cocaine, a controlled substance, and sentenced to life. The indigent defendant's request that the Court appoint a chemist to scientifically examine the substance and perform qualitative analysis of it was unsuccessful.

The en banc court held that the defense was entitled to appointment of a chemist to exam-ine the substance. The Court found that under Gideon and Ake, "to meaningfully participate in the judicial process, an indigent defendant must have the same right to inspection as a non-indigent defendant." Id. at 252.

McBride's defense was that the substance was planted on him by another to avoid prosecu-tion. The defendant believed the purity of the substance was material to his defense since a low concentration of cocaine would support his theory of being planted and could support a lack of intent or knowledge. Id. at 251 n.7.

"The focus of public interest is not on the fair and impartial administration of justice. Its in-terest, fed by the 'one issue at a time' approach of the media, is with the conviction and (prefer-ably severe) punishment of offenders. This, it is believed (every historical precedent to the contrary), will eradicate the problem. In this climate, anyone 'accused' of being 'under the influence' is often presumed 'guilty.' Trial lawyers (individually and as a group) are castigated even for defending such cases, especially if they do so well! Many judges decide cases, and impose sentences, with one finger up to 'test the winds' of public opinion. In such a climate, we have more need than ever for a careful, impartial, objective analysis of the alcohol issues by those who are, and consider themselves, forensic specialists." Edward F. Fitzgerald & David N. Hume, Intoxication Test Evidence: Criminal & Civil (1987) at 617-18.

DUI cases involve a number of aspects which frequently call for expert assistance to aid the defense:

1. Physicians: the defense attorney can call the defendant's physician to testify regarding the defendant's physical disabilities or mental condition. A physician can explain medical problems that resemble intoxication, such as closed-head injuries or diabetes-insulin reactions. In addition, the defense attorney can have a physician perform chemical tests on the defendant immediately after the defendant's release from police custody, and from those results the physician could testify as to the defendant's intoxication.

2. Pharmacists: the defense attorney can ask a pharmacist to testify as to the effects of mixing drugs and alcohol.

3. Pharmacologist: a pharmacologist can explain to the trier of fact the rates of absorption, distribution, and elimination and relate them to the defendant's condition at the time of arrest.

4. Analytical chemist: an analytical chemist can be called to the stand to calculate the probable blood/alcohol level of the defendant at the time of arrest. The defense attorney can also ask the analytical chemist to explain the deficiencies of the breath testing device used.

5. Ophthalmologist or optometrist: these experts can testify to other possible causes (besides intoxication) of bloodshot eyes and slow pupil reaction.

6. Auto mechanic: the defense attorney can call an auto mechanic to testify as to the possible causes of erratic driving, such as defects in the steering mechanism or imprecise wheel alignment."

Donald H. Nichols, Drinking/Driving Litigation: Criminal & Civil, §15:10 (1995).

"Unless the prosecution's case is very weak, an alcohol expert is usually worth having, in both test and refusal cases. A properly trained and qualified expert can not only cast doubt on the reliability of most test evidence, but can also deduce the defendant's presumed BAC on the basis of Widmark's formula, casting doubt on the test result from that approach." Stephen M. Brent & Sharon P. Stiller, Handling Drunk Driving Cases (1985) §26:7. Brent and Stiller relate a variety of effective uses of the experts to question the prosecution's charge.

Courts recognize the need for indigents to have funds to hire experts in DUI cases.

In State v. Lippincott, 307 A.2d 657 (N.J. 1973) the indigent defendant was charged with driving while intoxicated. The Court held the accused was entitled to money for the services of an expert witness to testify as to the consumption, ingestion and absorption rate of alcohol and the effects of alcohol on the human body.

The opinion reasoned that to appoint an attor-ney to represent an indigent and then "deny him the means necessary to provide an adequate, proper and complete defense [is] contrary" to equal protection. Id. at 658.

In Ventura v. State, 801 S.W.2d 225 (Tex. App. 1990) the Court held that a defendant who was charged with driving while intoxicated was entitled to funds to hire a psychiatrist to review the videotape taken after her arrest and arraignment and offer an opinion on whether the defendant's behavior was due to something other than being intoxicated. The motion for funds stated that the doctor would "relate the characteristics of the symptoms of an ailment suffered by the defendant to those symptoms exhibited by a person who is actually 'under the influence'..." Id. at 227. The defense was that at the time of the videotaping the defendant was in the manic stage of manic depression, not intoxicated.

As Lawrence Taylor observes in Drunk Driving Defense (1991 3rd Ed.), "It is helpful to the successful defense of a drunk driving case for counsel to obtain independent analysis of the client's blood-alcohol level. This can be done through obtaining a blood, urine, or breath sample within an hour or two of the client's arrest or by gaining access to the sample taken by the police." Id. at 209.

The scientific methods of urinalysis, breath and blood testing are all subject to operator and machine error. "The results of all-too-fallible blood alcohol tests are today accorded far more stature than they deserve. This is a reality that defense counsel must learn to deal with. He must constantly struggle to desanctify the testing procedure." Id. at 544.

An inculpatory statement obtained from a de-fendant involuntarily is not admissible. Hager v. Commonwealth, 189 S.W.2d 867, 869 (Ky. 1945). Under RCr 9.78 a defendant is entitled to an evidentiary hearing on a motion to sup-press an incriminating statement. When there is an issue as to whether the defendant was so under the influence of alcohol or a drug that his confession or his waiver of rights was not voluntarily given, criminal defendants often need an expert to evaluate the defendant and render an opinion on the affects of the drug or alcohol on the ability of the defendant to vol-untarily give the statement.

In the murder case People v. Mencher, 248 N.Y.S.2d 805 (N.Y. Sup.Ct. 1964) the defendant was entitled to money for a physician who is an expert on narcotics where the defense moved to suppress the confession since it was obtained a few hours after the defendant had been administered a narcotic drug.

Intoxication is a complete defense to any crime if it negates an element of that crime. KRS 501.080; Jewell v. Commonwealth, 549 S.W.2d 807 (Ky. 1977).

It is difficult for doctors to know about all the effects of drugs on human behavior. "[T]he 300 or so diverse psychoactive drugs differ in many important ways. For example, only a few pro-duce physiological tolerance and clinically relevant levels of withdrawal symptoms when some-one stops using the substance. Some drugs markedly increase the chances that a person will have temporary psychoses or depressions; other drugs do not. Some are likely to be lethal in overdose; others appear to be relatively safe at high levels. Clinicians, therefore, are presented with a daunting challenge if they at-tempt to memorize all the attributes for each of the hundreds of psychoactive substances." Marc A. Schuckit, M.D., "Alcohol-Related Disorders" in The Comprehensive Textbook of Psychiatry (1995 6th Ed.) at 778.

How the drug affects a particular person's be-havior is dependent on a number of factors. "The behavioral and physiological changes observed with any substance differ with the dose, the patient's prior history of exposure to the drug, and clinical conditions, including physiological disorders and the patient's state of fatigue. With a drug like alcohol, the effects also change over time after intake, with more pronounced symptoms observed while the blood alcohol levels are rising than when the blood alcohol levels are falling, a phenomenon called the Mallenby effect." Id.

Intoxication is relevant to the state of mind of the defendant. As a matter of 14th amendment due process, an indigent defendant is entitled to an expert "to examine [him] and assist him in the evaluation, preparation, and presentation of his intoxication defense," where he was charged with first degree robbery and had a serious substance abuse problem, and shortly after arrest went through alcoholic withdrawal syndrome and the more serious alcoholic withdrawal delirium. State v. Coker, 412 N.W.2d 589, 593 (Iowa 1987).

"Although trial court should prevent random fishing expeditions undertaken in search of rather than in preparation of a defense..., it should not withhold appointment of an expert when the facts asserted by counsel reasonably suggest further exploration may prove benefi-cial to defendant in the development of his or her defense." Id. at 592. An expert is required if it "may lead to development of a plausible defense...." Id.

In Washington v. State, 836 P.2d 673, (Okl. Cr. 1992) John Washington was convicted of first degree murder and first degree rape and sentenced to death and 500 years. The defense requested funds to hire a psychiatrist to assess the defendant's mental condition.

The trial court refused but the appellate court saw it differently, holding that the defense was entitled to a psychiatric expert as a matter of 14th amendment due process in order to have both his insanity and the intent element of malice aforethought evaluated. Id. at 677.

Part of the justification for the expert included the defense attorney's suspicion that Washington "may have been on drugs, namely PCP, when the crime was committed." Id. at 675.

Intoxication which does not rise to the level of a defense is nevertheless statutory mitigation in capital sentencing proceedings. KRS 532.025 (7).

In Bright v. State, 455 S.E.2d 37 (Ga. 1995) Kenneth Bright was convicted of murdering his two grandparents and possession of a con-trolled substance and sentenced to death and 15 years.

The Court held it was error to refuse "to ap-point a psychiatrist and toxicologist or to grant Bright funds to hire one of his own choosing." Id. at 51. The defense was entitled to these two experts to develop the mitigation of:

In Washington, supra, the Court further noted that the defendant's mental condition was also relevant to punishment in the penalty phase.

Under Guideline 4.1(7) of the National Legal Aid and Defender Performance Guidelines for Criminal Defense Representation (1995), "Counsel should secure the assistance of experts where it is necessary or appropriate to: (a) the preparation of the defense; (b) ade-quate understanding of the prosecution's case; (c) rebut the prosecution's case."

There is money available statewide under KRS 31.195 for indigent expert assistance. It is up to defense attorneys to convert our benign neglect into proactive litigation skills that will insure access to these funds through court orders for our accused clients.

Bright v. State, 455 S.E.2d 37 (Ga. 1995)

Guideline 4.1(7) of the National Legal Aid and Defender Performance Guidelines for Criminal Defense Representation (1995)

McBride v. State,838 S.W.2d 248 (Tx.Ct. Crim.App. 1992)

People v. Mencher, 248 N.Y.S.2d 805 (N.Y. Sup.Ct. 1964)

State v. Coker, 412 N.W.2d 589, 593 (Iowa 1987)

State v. Hanson, 278 N.W.2d 198 (S.D. 1979)

State v. Lippincott, 307 A.2d 657 (N.J. 1973)

Ventura v. State, 801 S.W.2d 225 (Tex.App. 1990)

Washington v. State, 836 P.2d 673, (Okl.Cr. 1992)