Our criminal justice system's most fundamental principle is that the truth is best obtained through an adversary process which depends on vigorous partiality. For this process to succeed as designed, both sides must be able to present their evidence in a partisan manner, including evidence from experts. Experts who testify for the prosecution and for the defense are not and should not be neutral. We should not pretend that neutrality is a reality. The benefits of the adversary process are fostered by the presentat-ion to the fact-finders of partisan expert opinions so that the truth is best achieved.

These must be a level playing field. Both sides of the story must be told.

"The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free." Herring v. New York, 422 U.S. 853, 862 (1975).

If the criminal trial "loses its character as a confrontation between adversaries, the constitu-tional guarantee [of the effective assistance of counsel of the Sixth Amendment] is violated." United States v. Cronic, 466 U.S. 648, 656-57 (1984).
 

There are no whole truths: all truths are half-truths. It is trying to treat them as whole truths that plays the devil. -- Alfred North Whitehead

"[T]he use of an 'impartial' expert subverts the adversary system by shifting the decision from the jury (or judge) to the expert.... [A] 'battle of the experts' in the context of the adversary system... permits the jury to evaluate scientific opinions." Expert Services and the Indigent Criminal Defendant: The Constitutional Mandate of Ake v. Oklahoma, 84 Mich. L.Rev. 1326, 1348-49 (1986).

"Because partiality is one essence of the adver-sary system," psychiatrists, in the "forensic role, do become part of it, and this fact is to be openly acknowledged." Rachlin, From Impartial Expert to Adversary in the Wake of Ake, 16 Bull.Am. Acad. Psychiatry Law 25, 30 (1988).

The "ideal of the completely impartial psychiatric witness is, in most cases, what Freud entitled an 'ideal fiction.'" Gorman, Are There Impartial Expert Psychiatric Witnesses? 11 Bull. Am. Acad. Psychiatry Law 379, 381 (1983).

"[P]sychiatric evaluation and diagnosis are prone to professional disagreement. Scientific and extra-scientific factors can lead to subtle biasing that undermines reliability and validity. Systems that use only allegedly neutral experts present to the fact finder an illusion of intellectual neutrality, encourage excessive deference to expertise, and place unwarranted power in the experts' hands." Zisla, Psychiatric Assistance for Indigent Defendants Pleading Insanity: The Michigan Experience, 20 J. of Law Reform 907, 915 (1987).

The "illusion that the psychiatrist remains im-partial and outside the adversary system" is something the law cannot permit. It is a pretense which the law must discard. Diamond & Louisell, The Psychiatrist as an Expert Witness: Some Ruminations & Speculations, 63 Mich.L. Rev. 1335, 1344 (1965). Each side of a criminal dispute must have its mental health expert when the defendant's state of mind is a significant factor because as Diamond & Louisell observe:

1)  the science of the mind is not exact;

2)  the mind and its processes are not visible as is the data in the biological sciences;

3)  the mental state is difficult to uncover since the expert can only evaluate the derivatives of the mental processes;

4)  extensive collaboration between the attorney and expert is an absolute necessity for the psychological essence of the human mind to be uncovered and presented;

5)  the opinion of the evaluating expert is a product of deductions and inferences which are colored by his training, exper-ience and the theoretical framework used to order, explain and interpret his obser-vations. It is not a neutral, objective opinion; rather it is a professional view-point;

6)  a mental health expert provides a hypothesis which explains specific human behavior. Id.

The theoretical framework and professional viewpoint of experts are critical to a litigator's ability to effectively advocate his position. It is not uncommon for two experts to view the very same facts quite differently. To those who litigate cases it is no surprise that "the primary predictor" of how an expert views a case involving an insanity, extreme emotional disturbance or other mental health defense is a function of the expert's personal training, experiences and attitude toward the insanity defense. See, Homant, Kennedy, Judgment of Legal Insanity as a Function of Attitude Toward the Insanity Defense, 8 International J. of Law of Psychiatry 67, 68, 76 (1986).

When representing a capital defendant who has been sexually, physically or emotionally abused, it is crucial for the defense to present that evidence through an expert whose theoretical framework, experience and professional view-point are that criminal behavior can be connected to prior abuse.

Interests, values, passions are a part of the sub-jective professional discipline of experts. This professional viewpoint or "disciplined sub-jectivity" is the core of what mental health pro-fessionals are able to bring to the criminal dis-pute. Neutrality or objectivity is a dangerous pretense. Diamond, The Psychiatrist or Advocate, 1 J. Psychiatry & Law 5, 19 (1973).

The truth is difficult to know. Only through the multiplicity of perspectives, especially partisan perspectives can a system best discount the arti-ficial notion of objectivity. Sidney Hook in Convictions (1990) addresses the limits of rationale processes, "Hume long ago showed that there is no such thing as pure reason, that it always acts in context of interest and passion." Id. at 125. Hook identifies the confusion between subjectivism and moral relativity. There is a "difference between saying (1) all truth is relative, meaning nothing is true or false, good or bad, but that our saying so or feeling so makes it so, and saying (2) all truth is relational, depending upon a complex of things that determine its validity or objectivity." Id. at 120.

If the defense or prosecution is not allowed to bring partisan experts to the critical dispute, dire, unacceptable consequences result... unre-liable verdicts. Therefore, the adversary system requires a defense expert for the defense of insanity, especially since the defense bears the burden of proving insanity in Kentucky.

To advance the truth-seeking process, we should identify experts for both sides accurately with the knowledge that there is no proof that partisan experts are hired guns.

"[S]erious injustice may occur when an adversary witness is disguised as a neutral witness.... In a legal situation where impartiality is impossible, let us frankly label the witness for what he is, and let the jury choose." Diamond, The Fallacy of the Impartial Expert, 3 Archives of Criminal Psychodynamics 221, 230 (1959).

A fear that partisan experts lead to "hired guns is unfounded." It "must be noted, however, that little if any empirical documentation of such testimonial venality exists." Kennedy, Kelley, Homant, A Test of the 'Hired Gun' Hypothesis in Psychiatric Testimony, 57 Psychological Reports 117 (1985).

The state's "neutral" experts are most often not able to provide the constitutionally required kinds and levels of assistance with the assured procedural safeguards due to their conflicting interests. This is recognized by the state experts themselves. For instance, in the mental health arena, a series of letters from Secretaries of the Kentucky Cabinet for Human Resource (CHR) and their staff repeatedly have indicated that the Kentucky Correctional Psychiatric Center (KCPC) experts would only give an opinion - a neutral opinion - to the court on sanity and competency, and they would do no more. These significant limitations were particularized as follows in a July 19, 1990 affidavit by the director of KCPC:

The State Fire Marshall recognizes its duties and loyalties lie with those who have a conflict of interest with the defense:

The Kentucky Supreme Court in a unanimous opinion written by Justice Wintersheimer in Binion v. Commonwealth, 891 S.W.2d 393 (Ky. 1995), decided that a neutral expert was not enough to satisfy due process, Ake v. Oklahoma, and the necessity of a level playing field.

When an indigent defendant is entitled to funds for an expert, the indigent is entitled to a defense expert who will assist in evaluation, preparation and presentation of the defense. As the Court stated in Binion, a case involving a Madison County rape and robbery tried by Ernie Lewis: "The appointment of [the KCPC contract psychologist] as a neutral mental health expert was insufficient to satisfy the constitutional requirement of due process because the services of a mental health expert should be provided so as to permit that expert to conduct an appropriate examination and assist in the evaluation, preparation and presentation of the defense. The benefit sought was not only the testimony of a mental health professional, but also, the assistance of an expert to interpret the findings of the expert used by the prosecution and to aid in the presentation of cross-examination of such an expert. The defendant was deprived of his right to a fundamentally fair trial and due process without such assistance. Cf. U.S. v. Sloane, 776 F.2d 926 at 929 (10th Cir. 1985).

This Court has previously explicitly recognized that indigent defendants are entitled under Ake to be provided with a psychiatrist to assist in building an effective defense. Hunter v. Commonwealth, 869 S.W.2d 719 (Ky. 1994).

We are persuaded that in an adversarial system of criminal justice, due process requires a level playing field at trial. As noted in DeFreece v. State, 848 S.W.2d 150 (Tex.Cr.App. 1993), there is a need for more than just an examination by a neutral psychiatrist. It also means that there must be an appointment of a psychiatrist to provide assistance to the accused to help evaluate the strength of his defense, to offer his own expert diagnosis at trial, and to identify weaknesses in the prosecution's case by testifying and/ or preparing counsel to cross-examine opposing experts."

Ake v. Oklahoma, 470 U.S. 68 (1985) requires more than Kentucky's KCPC neutral expert, or the Kentucky state police's expert. Justice Rehnquist in his dissenting opinion in Ake recognized that the majority had indeed held that access to a defense expert was required. Id. at 87. Ake compels an expert who will investigate, interpret, testify, and marshal the defense. Id. at 82-83. Ake dictates access to an expert to help determine the viability of the defense, such as a mental defense, and:

Ake commands an expert who will help "...mar-shall his defense," Id. at 80, by performing the traditional, valuable role of a an expert, like a psychiatrist:

In United States v. Crews, 781 F.2d 826 (10th Cir. 1986) the Court stated that "Such a psychiatrist is necessary not only to testify on behalf of the defendant, but also to help the defendant's attorney in preparing a defense.... Although four treating or court-appointed psychiatrists testified with respect to Crews' mental condition, Crews also was entitled to the appointment of a psychiatrist 'to interpret the findings of... expert witness[es] and to aid in the preparation of his cross-examination.'" Id. at 834.

In United States v. Sloan, 776 F.2d 926 (10th Cir. 1985) the Court held that under Ake more than a nonpartisan state doctor was required. "The essential benefit of having an expert in the first place is denied the defendant when the services of the doctor must be shared with the prosecution. In this case, the benefit sought was not only the testimony of a psychiatrist to pre-sent the defendant's side of the case, but also the assistance of an expert to interpret the findings of an expert witness and to aid in the preparation of his cross-examination. Without that assistance, the defendant was deprived of the fair trial due process demands." Id. at 929.

In Holloway v. State, 361 S.E.2d 794 (Ga. 1987) the Court determined that a capital defendant who had been examined by a state psychologist and state psychiatrist was nevertheless entitled to an independent psychiatrist under the constitutional rationale of Ake on criminal responsibility and other issues.

In Cowley v. Stricklin, 929 F.2d 640 (11th Cir. 1991) the indigent defendant was charged with sexual assault. His appointed attorney asked for psychiatric assistance due to the defendant's strange behavior. Before granting that request, the trial judge sent the defendant to the state psychiatric hospital. The state psychiatrist found the defendant competent and sane. The continued requests of the defense for psychiatric help were refused by the trial judge, even though a significant mental health history was produced, including a prior diagnosis of schizophrenia. At trial, the state psychiatrist testified that he found the defendant sane.

In Cowley the defense was entitled to more than state psychiatric assistance. "It does not follow that, because Judge Snodgrass had evidence from [the state psychiatrist] that Cowley was sane at the time of the crime and competent for trial, he was justified in refusing the request for psychiatric assistance. This argument makes little sense in a system of trial by jury. There was some evidence that Cowley was sane, but there was also substantial evidence that he was not sane. The validity of the defense should then have been for the jury to decide. Otherwise, as long as there is a modicum of evidence indicating sanity, any indigent with a mental disability could be denied psychiatric assistance to present an insanity defense." Cowley, supra at 643.

The assistance of the state psychiatrist given to Cowley was inadequate. "The district court found that [state psychiatrist] was a 'qualified,' independent psychiatrist.' This may have been the case, but [the state psychiatrist] did not provide the constitutionally requisite assistance to Cowley's defense. Ake holds that psychiatric assistance must be made available for the defense. This assistance may include conducting 'a professional examination on issues relevant to the defense,' presenting testimony, and assisting 'in preparing the cross-examination of a State's psychiatric witnesses.' [The state psychiatrist] performed none of these essential tasks on Cowley's behalf.... The state cannot preempt a defendant's right to a defense psychiatrist by first appointing its own expert." Cowley, supra at 644.

"The right to psychiatric assistance does not mean the right to place the report of a 'neutral' psychiatrist before the court; rather it means the right to use the services of a psychiatrist in whatever capacity defense counsel deems appropriate...." Smith v. McCormick, 914 F.2d 1153, 1157 (9th Cir. 1990). "But under Ake, evaluation by a 'neutral' court psychiatrist does not satisfy due process." Id. at 1158-59.

DeFreece v. State, 848 S.W.2d 150 (Tx.Cr.App. 1993) extensively analyzes what expert assistance an indigent is entitled to receive under Ake, due process, and the line of state supreme court and federal courts of appeal cases since Ake.

In DeFreece the defendant was examined by a state psychiatrist and psychologist. While "it is true that some jurisdictions have said, essentially in dicta, that the statutory provision of a single neutral psychiatrist to service both parties and the court is sufficient to meet the due process minimum of Ake," DeFreece recognizes that "the greater weight of authority holds otherwise. And, in our view with good reason." DeFreece, supra, 848 S.W.2d at 158.

In "an adversarial system due process requires at least a reasonably level playing field at trial. In the present context that means more than just an examination by a 'neutral' psychiatrist. It also means the appointment of a psychiatrist to provide technical assistance to the accused, to help evaluate the strength of his defense, to offer his own expert diagnosis at trial if it is favorable to that defense, and to identify the weaknesses in the State's case, if any, by testifying himself and/ or preparing counsel to cross-examine opposing experts." Id. at 159.

The right to funds for defense experts is recog-nized in Kentucky. In Sommers v. Common-wealth, 843 S.W.2d 879 (Ky. 1922) the Kentucky Supreme Court reversed the two murder convictions and the 500 year sentence of David Sommers because the trial judge refused to provide the indigent defendant funds for independent expert assistance.

The two victims were found in a house destroyed by fire. State testing indicated that the killings were from suffocation prior to the fire, and that the fire was deliberately started. The Commonwealth's theory was that the defendant killed to silence the girls he had sexually abused, and the fire was set to conceal the homicides.

The Court observed "that due process requires that indigence may not deprive a criminal defendant of the right to present an effective defense...." Id. at 883. This constitutional principle is recognized in KRS 31.110 by requiring an indigent to be represented by counsel and provided the resources necessary for competent representation. Id.

In Sommers, due process and KRS Chapter 31 required "funding of a pathologist and an arson investigator to serve as consultants and/or witnesses for the defense." Id. at 883. There was reasonable necessity for funds for the "assistance of an independent pathologist and an independent arson expert or the equivalent," Id. at 885, because "both the causes of death and the genesis of the fire were matters of crucial dispute, resolvable only through circumstantial evidence and expert opinion." Id. at 884. (emphasis added).

The Court termed these independent experts as defense experts.

The criminal justice system does not suffer the pretense of objectivity. Rather, it effectuates what Edmund Teller understood when he ob-served: "Those who think they are the most ob-jective are probably the least objective of all."

If we are genuinely interested in insuring the rest of the story is revealed to the fact-finders, there must be partisan experts for both sides of the disputes.

Sommers v. Commonwealth, 843 S.W.2d 879 (Ky. 1992)

Binion v. Commonwealth, 891 S.W.2d 393 (Ky. 1995)

Ake v. Oklahoma, 470 U.S. 68 (1985)

United States v. Crews, 781 F.2d 826 (10th Cir. 1986)

United States v. Sloan, 776 F.2d 926 (10th Cir. 1985)

Holloway v. State, 361 S.E.2d 794 (Ga. 1987)

Cowley v. Stricklin, 929 F.2d 640 (11th Cir. 1991)

Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990)

DeFreece v. State, 848 S.W.2d 150 (Tx.Cr.App. 1993)

Sommers v. Commonwealth, 843 S.W.2d 879 (Ky. 1922)