Due Process and Access to Experts

The Supreme Court’s ruling this past week in McWilliams v. Dunn, on its face is about the ability of a defendant facing the death penalty to put on a meaningful defense case concerning mental health evidence.  Thirty-one years ago, the Alabama trial court denied all of the defendant’s requests for expert assistance.  And that is why the case is of some potential relevance to issues surrounding access to forensic experts.  The majority noted the Court’s 1985 ruling in Ake v. Oklahoma, entitles the defense to a mental health expert to effectively “assist in evaluation, preparation, and presentation of the defense.”  The Court also emphasized that “the simplest way for a State to meet this standard may be to provide a qualified expert retained specifically for the defense team.”  The Court noted that not all states provide such an expert, but that a majority do, and that doing so provides the most straightforward way to ensure that the defense can prepare a defense regarding mental health issues.

Now, where forensic evidence is important, following the Court’s reasoning in McWilliams, the defense must be able to evaluate the evidence (and would need an expert to examine the evidence); second, prepare for trial; and third, present the defense through testimony at trial.  Each of those steps is neglected in many jurisdictions, where the defense may not have access to an independent forensic expert, who can examine the evidence and provide information concerning it, help the defense prepare for the trial, and from which the defense can elicit testimony at trial as a defense witness. Why did the Alabama court’s ruling fall “dramatically short” of what the constitution requires in a death penalty case in which mental health evidence provided the key opportunity to make out a case for mitigation, but countless other criminal cases with other types of forensic expert issues do not similarly fall “dramatically short”?  Perhaps the McWilliams ruling will more broadly impact defense access to expert evidence across the wide range of expert evidence that can be central in a criminal case.

Published by BGarrett

Professor of Law, Duke University

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  1. At Wrongfulconvictionnews.com, Bruce Fischer wrote about the Jeffrey Havard case in Mississippi: “Judge Johnson presided over Havard’s trial in 2002. The trial was speedy to say the least. Within a matter of two days, the court selected a jury, tried the case, received the jury’s verdict, and sentenced Havard to death. The jury heard from only one expert who testified for the prosecution. Havard asked for an expert of his own but the request was denied by Judge Johnson based on financial restraints of the county. At the time, indigent defendants were expected to rely on the prosecution’s expert if they could not personally afford their own.”



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