by Dale Chappell

The Supreme Court of Michigan held that a trial judge’s discretion plays no part in appointing an expert witness for a defendant; instead, a defendant must show a “reasonable probability” the expert’s assistance would be needed to prevent a violation of due process. In doing so, the Court overturned its prior decisions holding to the contrary.

For nearly two decades, the strangulation of Tanya Harris sat cold—until DNA evidence taken from her body pointed to Johnny Kennedy, who was already in prison for admitting to strangling another woman in the same manner in 1996. Kennedy’s defense counsel requested a DNA expert to be appointed by the court to “zealously confront the witnesses and evidence called in the prosecution’s case.” The trial court, however, denied counsel’s request: “I’m not going to appoint [an expert] for that,” the judge said. “You can talk to him, you can read up on him and go to the conference,” but the judge refused to appoint an expert to help counsel.

Kennedy was convicted of first-degree premeditated murder, and he appealed. The Court of Appeals, in a split opinion, affirmed, holding that the trial court did not “abuse its discretion” by denying Kennedy the help of an expert. He appealed to the Michigan Supreme Court, which reversed.

Before the Supreme Court, Kennedy argued that the trial court violated his right to due process by denying him an expert witness, and the Court agreed.

Up until this case, the Court “analyzed the issue of whether a criminal defendant was entitled to the appointment of an expert witness at public expense under MCL 775.15.” Basically, under the statute, defendants had to “show a nexus between the facts of the case and the need for an expert” to the satisfaction of the trial judge.

The Court announced that the issue would no longer be subject to MCL 775.15 and associated case law. It explained that “the Legislature did not intend MCL 775.15 to encompass requests by an indigent criminal defendant for the appointment of an expert at government expense….” The statute applies only to subpoenaing certain witness and for paying their expenses for attending trial, not expert witnesses. Thus, the Court expressly overruled any case law that holds or suggests MCL 775.15 applies to expert witnesses.

Instead, the Court announced that Ake v. Oklahoma, 470 U.S. 68 (1985), now controls the analysis for the appointment of an expert witness for indigent criminal defendants.

In Ake, the U.S. Supreme Court details “the due process analysis that a court must use when an indigent criminal defendant claims he or she has not been provided ‘the basic tools of an adequate defense’ and therefore” was denied an opportunity to present an adequate defense.

The Ake Court reasoned that “the Fourteenth Amendment’s due process guarantee of fundamental fairness” is violated when, “as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.” While a defendant is not entitled to any and all assistance that he seeks without question, “fundamental fairness entitles indigent defendants to an adequate opportunity to present their claims fairly within the adversarial system,” the Court said.

While Ake was a case involving the appointment of a psychiatric expert for an insanity defense in a capital case, the Michigan Supreme Court determined that Ake’s reasoning and analysis “also apply equally to other types of experts.” Ake also applies to non-capital cases, the Court said.

Importantly, the Michigan Supreme Court also noted that in Hinton v. Alabama, 134 S. Ct. 1081 (2014), the U.S. Supreme Court recognized “the threat to fair criminal trials posed by the potential for incompetent or fraudulent prosecution forensics experts” and that this threat is minimized with competent defense experts to counter the prosecution’s experts.

The Court noted that the U.S. Supreme Court has never articulated a standard on what a defendant must show for the appointment of an expert witness paid for by the government under Ake. However, a “bare assertion,” the Court said, would not be enough.

In Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987), the U.S. Court of Appeals for the Eleventh Circuit instructed that under Ake “a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that the denial of expert assistance would result in a fundamentally unfair trial.” The Michigan Supreme Court noted that counsel would not be able to provide “specific scientific theories” in every case, but he should at least “inform himself enough to provide the court with reasons for the need of an expert’s help.

The Michigan Supreme Court adopted the reasonable probability standard articulated in Moore. The Court reasoned that “Moore strikes the right balance between requiring too much or too little of a defendant seeking the appointment of an expert under Ake.”

The Court then announced “we hold ‘a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.”

Accordingly, the Michigan Supreme Court vacated the Court of Appeals’ decision and remanded to that court “for application of the Ake due process analysis” and whether Kennedy “made a sufficient showing that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.” See: People v. Kennedy, 502 Mich. 206 (2018). 

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