Expert/Investigative Assistance Issues (Ake)

Ake v. Oklahoma or Analogous to Ake

In Ake v. Oklahoma, 470 U.S. 68, 71 (1985), the Supreme Court recognized that indigent defendants are entitled to independent mental health experts when their assistance "may well be crucial to the defendant's ability to marshal a defense." Ake, supra, 470 U.S. at 80. The Court conducted a Fourteenth Amendment due process analysis, id. at 87, and held that without independent experts defendants could be denied "meaningful access to justice." Id. at 76-77. This was because, while jurors may disregard a defendant's testimony or a lawyer's argument, experts "assist lay jurors, who generally have no training in" scientific or medical matters "to make a sensible and educated determination about" the contested issues. Id., 470 U.S. at 81. "By organizing ...[data], interpreting it in light of their expertise, and then laying out their investigative and analytic process to the jury, the [expert] for each party enable[s] the jury to make its most accurate determination of the issue before them." Id. at 81 (emphasis added). See also Cowley v. Stricklin, 929 F.2d 640 (11th Cir. 1991); Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir.)(en banc), cert. denied, 499 U.S. 970 (1991); Blake v. Kemp, 758 F.2d 523 (11th Cir.), cert. denied, 474 U.S. 998 (1985); Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990). Because jurors do listen to, are influenced by, and will rely upon the testimony of such experts, a trial may be fundamentally unfair when a party is left without expert assistance. Ake, supra, 470 U.S. at 80.

Under Ake, "the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense." Ake, supra, 470 U.S. at 83. See also Bell v. Evatt, 72 F.3d 421 (4th Cir. 1995); Buttrum v. Black, 721 F.Supp. 1268, 1312 (N.D. Ga. 1989), aff'd, 908 F.2d 695 (11th Cir. 1990) (expert "failed to provide the scope of psychiatric assistance contemplated by Ake"). Furthermore, the expert must be the defendant's, i.e., independent of the state. Cowley, supra, 929 F.2d at 644; McCormick, supra, 914 F.2d at 1157; United States v. Sloan, 776 F.2d 926, 929 (10th Cir. 1985) ("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"). 

The Supreme Court recently revisted Ake in McWilliams v. Dunn, 137 S. Ct. 1790 (2017), a capital case from Alabama.  There, the petitioner had been evaluated pre-trial at a state hospital for purposes of determining competence and mental state at the time of the offense, and prior to judicial sentence by a neuropsychologist employed by the State’s Department of Mental Health, but was denied his request for appointment of an expert to assist in reviewing the prior evaluations and extensive medical records in order to prepare and present mitigation evidence.  The Supreme Court found an Ake violation, explaining: “Ake clearly established that a defendant must receive the assistance of a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively ‘assist in evaluation, preparation, and presentation of the defense,’ 470 U.S., at 83 . . .."  It is not enough under Ake that an examination was performed.  The Supreme Court declined to decide, however, whether or not Ake clearly established the right to a qualified mental health expert retained specifically for the defense team, rather than a neutral expert available to both parties.  The case was remanded for consideration of whether the error had a substantial and injurious effect or influence on the verdict. 

While Ake involved the right to a mental health expert, its reasoning compels that states provide other competent and independent experts for the defense when such expertise is necessary. Courts have enforced Ake vis-a-vis all sorts of experts -- psychologists, forensic pathologists, hypnotists, firearms experts, and others. If an expert would assist you in evaluating the state's case, or in developing and presenting your own, then Ake and its progeny requires that you seek such assistance.  Note, however, that in Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1 (1985), the Supreme Court declined to determine as a matter of federal constitutional law what, if any, showing would have entitled the defendant to appointment of a criminal investigator, a fingerprint expert, and a ballistics expert. 

Click here to view a compilation of successful cases under Ake or analogous state law, last updated August 2019.