JurisdictionUnited States


The appointment of an expert for an indigent criminal defendant may be required on constitutional grounds. In Ake v. Oklahoma,269 the accused was charged with capital murder. At arraignment, his conduct was "so bizarre" that the trial judge ordered, sua sponte, a mental evaluation. Ake was found incompetent to stand trial but later recovered due to antipsychotic drugs. When the prosecution resumed, Ake's attorney requested a psychiatric evaluation at state expense to prepare an insanity defense. The trial court refused. Thus, although insanity was the only contested issue at trial, no psychiatrists testified on this issue, and Ake was convicted. In the penalty stage, the prosecution relied on state psychiatrists, who testified that Ake was "dangerous to society," in seeking the death sentence. This testimony stood unrebutted because Ake could not afford an expert.

The Supreme Court overturned Ake's conviction on due process grounds, commenting that "when a State brings its judicial power to bear on an indigent in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense."270 This fair opportunity mandates that an accused be provided with the "basic tools of an adequate defense." In another passage, the Court elaborated on what it meant by a "fair opportunity" and "basic tools" for an adequate defense: "We hold that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue, if the defendant cannot otherwise afford one."271

While the Ake decision settled the core issue by recognizing a right to expert assistance, it left a number of important issues unresolved. Several of these issues involved the scope of the right. One question was whether Ake extended to noncapital cases. While some early cases attempted to limit Ake to death penalty cases, the majority of courts have rejected this restriction.272 The same pattern developed with Ake's application to nonpsychiatric experts, again with most courts declining to limit the opinion to psychiatric expertise.273 Another issue involves the role of the expert — i.e., whether an Ake expert is a "defense" (partisan) expert or a neutral one. Here, the courts remain divided.274

Finally, the standard for appointment remains elusive. Some reasonable...

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