The Michigan Supreme Court recently adopted the constitutional standard for reviewing an indigent defendant’s request for state funds to hire an expert witness, tossing out the decades-old practice of reviewing such requests under state law - specifically, MCL 775.15.

In People v Kennedy (Docket No. 154445), a unanimous Michigan Supreme Court held that the constitutional standard, which has already been adopted by the federal courts and most states, is the controlling law.

Relying on Ake v Oklahoma, 470 US 68 (1985), Justice David F. Viviano wrote for the high court: “We take this opportunity to clarify that MCL 775.15 does not apply in this context; instead, we hold - as we must - that Ake v Oklahoma is the controlling law. And, to assist trial courts in determining whether a defendant has made a sufficient showing to be entitled to expert assistance under Ake, we adopt the reasonable probability standard from Moore v Kemp.”

Murder Conviction

The defendant was charged with murder. At trial, defense counsel requested the appointment of a DNA expert. The Wayne County Circuit Court denied the request. A jury convicted the defendant of first-degree premeditated murder.

The defendant appealed, claiming his constitutional right to present a defense was violated when the trial court denied his request to appoint a DNA expert. In a 2-1 decision, the Michigan Court of Appeals held the trial court did not abuse its discretion in finding the defendant failed to show that testimony from a DNA expert would assist his defense, as required by MCL 775.15 and People v Tanner, 469 Mich 437 (2003). Judge Cynthia Stephens dissented.

The defendant appealed to the Michigan Supreme Court, which granted oral argument on the application and ordered the parties to addressing the issue of whether “the trial court abused its discretion under MCL 775.15 and/or violated the defendant’s constitutional right to present a defense when it denied his request to appoint a DNA expert.”

Ake v Oaklahoma

The Michigan Supreme Court’s decision was based on Ake v Oklahoma, where the U.S. Supreme Court held that an indigent defendant’s right to a fair trial may include the state providing funds for an expert witness.

According to the Michigan Supreme Court, in determining whether a state can deny funds to an indigent defendant, the due process factors in Mathews v Eldridge, 424 US 319 (1976), must be considered. Those factors are: 1) the private interest that will be affected by the action of the state; 2) the governmental interest that will be affected if the safeguard is to be provided; and 3) the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. The Ake Court applied the Mathews factors and held the defendant should have been appointed an independent psychiatric expert because the defendant’s mental stability was a significant factor at trial. Looking to Ake, the Michigan Supreme Court said that “one thing” about the decision was clear: it sets forth the due process analysis that applies when an indigent defendant asserts that he or she has not been provided “the basic tools of an adequate defense” and, as a result, did not have “an adequate opportunity to present [his or her] claims fairly within the adversarial system.”

The Michigan Supreme Court also noted that Ake involved a request for a psychiatric expert in order to present an insanity defense. “But the Court’s analysis of the first two factors from Mathews certainly applies to other types of experts and fields of expertise,” the high court said. “And many of the Court’s observations about psychiatrists and psychiatry also apply equally to other types of experts and fields of expertise.”

According to the Michigan Supreme Court, “There is a burgeoning consensus that Ake’s due process analysis is not limited to psychiatric experts - a point the prosecutor here concedes. And the vast majority of courts have held that although Ake involved a capital case, its reasoning is not limited to such cases. We agree with both conclusions.”

No More MCL 775.15

The Michigan Supreme Court continued by explaining that, historically, the courts have applied MCL 775.15 and have disregarded the constitutional standard. MCL 775.15 says:

“If any person accused of any crime or misdemeanor, and about to be tried therefor in any court of record in this state, shall make it appear to the satisfaction of the judge presiding over the court wherein such trial is to be had, by his own oath, or otherwise, that there is a material witness in his favor within the jurisdiction of the court, without whose testimony he cannot safely proceed to a trial, giving the name and place of residence of such witness, and that such accused person is poor and has not and cannot obtain the means to procure the attendance of such witness at the place of trial, the judge in his discretion may, at a time when the prosecuting officer of the county is present, make an order that a subpoena be issued from such court for such witness in his favor, and that it be served by the proper officer of the court. And it shall be the duty of such officer to serve such subpoena, and of the witness or witnesses named therein to attend the trial, and the officer serving such subpoena shall be paid therefor, and the witness therein named shall be paid for attending such trial, in the same manner as if such witness or witnesses had been subpoenaed in behalf of the people.”

Noting this statute was last amended more than 100 years ago, the Michigan Supreme Court said, “MCL 775.15, by its express terms, does not provide for the appointment of expert witnesses. It merely provides a means for subpoenaing certain witnesses and for paying their cost of attending trial. And the mechanism it provides - compelling witnesses to testify - is not the typical way expert witnesses are invited to participate in a criminal proceeding.”

Rather, MCL 775.15 only contemplates “testimony” and “falls short” of the constitutional standard set forth in Ake, “which clearly requires the assistance of an expert in ‘conduct[ing] an appropriate examination’ and ‘in evaluation, preparation, and presentation of the defense,’” the high court wrote.

As a result, the Michigan Supreme Court overruled case precedent interpreting MCL 775.15, finding the statute clearly does not satisfy a criminal defendant’s constitutional right to a fair trial. “Instead we hold - as we must - that the Ake due process analysis governs such requests.” Moreover, the Michigan Supreme Court pointed out that applying MCL 775.15 to expert witness requests has basically created an untenable situation. According to the high court, in order to get expert assistance, a defendant would have to make a detailed showing that the assistance would benefit the defense. However, this burden is insurmountable in circumstances where a defendant may not know exactly how an expert can help the defense until after that expert is consulted.

What Must The Defense Show?

In its ruling, the Michigan Supreme Court adopted the “reasonable probability standard” set forth in Moore v Kemp, 809 F2d 702 (CA 11 1987). The Moore standard requires that, to obtain expert assistance, the defense must show there is a reasonable probability: 1) the expert would assist the defense and 2) the denial of expert assistance would result in a fundamentally unfair trial.

Quoting the Moore decision, the Michigan Supreme Court said a defendant must demonstrate something more than a “mere possibility of assistance” from the requested expert. “Thus, if a defendant wants an expert to assist his attorney in confronting the prosecution’s proof – by preparing counsel to cross-examine the prosecution’s experts or by providing rebuttal testimony – he must inform the court of the nature of the prosecution’s case and how the requested expert would be useful. At the very least, he must inform the trial court about the nature of the crime and the evidence linking him to the crime.”

According to the Michigan Supreme Court, the defense’s showing must also include a specific description of the expert that is needed. “In addition, the defendant should inform the court why the particular expert is necessary,” the high court said. “We recognize that defense counsel may be unfamiliar with the specific scientific theories implicated in a case and therefore cannot be expected to provide the court with a detailed analysis of the assistance an appointed expert might provide. We do believe, however, that defense counsel is obligated to inform himself about the specific scientific area in question and to provide the court with as much information as possible concerning the usefulness of the requested expert to the defense’s case.”

The Impact Of Kennedy

According to Michigan defense practitioners, the Kennedy decision will have a positive influence on criminal defense practice across the state. This is because, for more than 20 years, Michigan criminal jurisprudence has basically ignored Ake.

But now that has changed. In Kennedy, the Michigan Supreme Court has recognized - for the first time - that Ake applies to an indigent defendant’s request for an expert witness. This is a significant shift in Michigan jurisprudence.
Defense attorneys say the constitutional standard will have numerous benefits, including:

• it will be less burdensome for indigent defendants to show they need the funds for an expert witness.

• indigent defendants may be able to obtain a broader range of assistance from experts.

• if state funding requests are denied, a “harmless error” standard (set forth in People v Anderson, 446 Mich 392 (1994)), will most likely be applied