[GET Quote from Clarence Darrow asserting that the rich are never found on Death Row.]

  . . . [W]hen a state brings criminal proceedings against an indigent defendant, it must take steps to ensure that the accused has a meaningful opportunity to present a defense.  See, e.g., Douglas v. California, 372 U.S. 353 (1963); Griffin v. Illinois, 351 U.S. 12 (1956).  Although the state need not purchase for an indigent defendant all of the services that the wealthy may buy, see Ross v. Moffitt, 417 U.S. 600 (1974), the State must provide the defendant "with the basic tools of an adequate defense," Britt v. North Carolina, 404 U.S. 226, 227 (1971).  Johnson v. Oklahoma, 108 S.ct. 35, 37 (1987) (Marshall and Brennan, JJ., dissenting to the denial of a writ of certiorari).

      A fortiorari, when an indigent citizen is charged with first degree murder, and when such a person is faced by the combined might of the State and all of its resources, simple fairness (not to mention due process and the right of a defendant to confront witnesses brought against him) requires that those charged with his defense be allowed access to resources on a par with those available to the prosecution.

      In a prosecution for first degree murder in Tennessee, the state can only seek one of two penalties:  death or life imprisonment.  These punishments are the ultimate sanction of the state.

      Historically, however, first degree murder charges tend to be brought disproportionately against the poor and the ill-educated.  These defendants, already disadvantaged by their wretched station in life, are further disadvantaged by the vastly unequal resources given the defense in comparison with those lavished on the prosecution.  This imbalance is real even when the state provides a public defender.

      Our system of criminal justice is an adversarial system.  In theory, each side contends, bringing to bear the fruit of each legal research and fact finding.  By adherence to a highly structured set of rules, the two sides are supposed to start at a point of rough equality.  Then, by presentation of evidence and argument, each tries to persuade the finder of fact, who ultimately decides the case on the merits by discerning the truth.   

       Unfortunately, this theoretical ideal is far from reality.  A cursory examination shows the inequitable difference between the two sides. A fundamental imbalance exists in the technical capabilities of the defensive side of the truth finding process (e.g., a lack of time and resources to do a reasonably adequate investigation, a lack of access to technical experts with whom one can explore different defense theories without fear that any such probe will be reported in extenso to the prosecution, etc.)  This inequity strikes at the heart of our legal system. 

      It calls into question the ability of any trial to reveal truth because the technical weakness of one side (the defense) will appear merely to be its failure to meet its burden of persuasion because truth will appear to be on the side of the prosecution.

 Consider the near monopoly of expertise at the command of the prosecution and the vast army of investigatory help available to it.

*          The prosecution can call on the laboratory services of the Tennessee Bureau of Investigation and Federally controlled laboratories, such as those of the Federal Bureau of Investigation. The indigent (or even the middle class) defendant does not.*


*          The prosecution has available to it, upon request, investigative help from the Morristown City Police Department, the Hamblen County Sheriff's Department, and the Third Judicial District Drug Task Force.


*          The prosecution has available at its request cooperative assistance from other law enforcement agencies both federal and state, and has the files of those agencies available as well as access to the NCIC computer system.


*          The prosecution receives funding from the public purse in a fashion that guarantees a grossly inequitable result in the ability of each side to represent adequately the interests each is charged to represent under our adversarial system. **

*          Moreover, state investigative agencies if asked by the defense to investigate a particular aspect of a case will do so only on the condition that they will inform the relevant Attorney General's office of the results of their work.


In Ake v. Oklahoma, 470 U.S. 68, 80 (1985), the United States Supreme Court recognized that when a defendant's mental condition is at issue, the assistance of a psychiatrist is "crucial" to the "defendant's ability to marshal his defense" and that the state must therefore provide psychiatric assistance.


We might, in short, describe Ake and its progeny as relying on a sort of Fourteenth Amendment "due process" argument:  it is unfair to so "stack the deck" in favor of the State that a defendant who is arguably insane has no chance to show whether such a claim has any factual basis.


Rule 12 of the Supreme Court of Tennessee provides a procedure for the payment of expert witnesses and other costs associated with the defense of indigent persons accused of crimes.  As this Rule is actually administered, however, even reasonable defense requests in capital cases are subject to the closest scrutiny; obtaining expert assistance in a noncapital case is almost unheard of.***


A few months after the decision in Ake was announced, the United States Supreme Court reserved the equally important question of whether and when an indigent defendant is entitled to have the assistance at state expense of non-psychiatric experts in preparing his defense.  Caldwell v. Mississippi, 472 U.S.320, 323 n.1 (1985).


While the foregoing arguments based on effectiveness of counsel and the maintenance of essential fairness in the adversary system require the appointment of experts at state expense, are clearly adequate, there is another, perhaps more important ground to assert this clearly essential right -- the defendant's right to confront the witnesses brought against him.


Both the federal and state constitutions grant defendants in criminal cases the right to confront witnesses brought against them and to have available compulsory process to bring to court witnesses for the defense.  U.S. Const., amend. VI;  Tenn. Const., art. 1, '9.  Indeed, the words of Tennessee's Constitution assert those rights with particular force:


"That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor . . ."  Tenn. Const., art. 1, '9.


In Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), the Supreme Court of Tennessee held that the Sixth Amendment of the federal constitution and Article 1, Section 6 of the state constitution are identical in import in requiring that a criminal defendant's right to be represented by an attorney require that the attorney's representation be effective. Cf., Strickland v. Washington, 466 U.S.668, 686 (1984) (Sixth Amendment's guarantee of the right to counsel is "the right to the effective assistance of counsel", quoting McMann v. Richardson, 397 U.S. 759, 771, n.14.)


At the time both constitutions were written, scientific forensic studies virtually did not exist. Expert witnesses were a rarity. Law schools did not exist in the United States.  Most lawyers learned their trade by clerking in the offices of more experienced attorneys. (A few may have gained experience by attendance at British Inns of Court, but -- if so -- they were few in number and of negligible influence in the development of American law.)


Now the State has available to it the latest in technology and spends great sums to maintain a stable of experts on call for the prosecution, while the defense (for indigent defendants) is limited to that which was available to the well-equipped 18th century lawyer: shoe leather and a glib tongue.(??)


We respectfully argue that just as the right to counsel clauses of the federal and state constitutions have been interpreted to mean the right to effective counsel, the confrontation clauses compel the requirement that the right to call witnesses means the right to call effective witnesses: witnesses who can effectively witness to the scientific truths of their calling (experts) and -- given the time and distance problems common in our century as opposed to the more parochial eighteenth century --witnesses well trained in investigative techniques who can truthfully report the results of their investigations. (Indeed, can counsel for the defense truly be said to be effective absent the ability to call on investigative and expert assistance?)


Of course, one of the differences between an expert witness and an eyewitness is the requirement that the expert prepare for his testimony by bringing his expertise or investigative skills to bear on the problem at hand.


The expert witness, unlike an eyewitness, must be paid for the time that he takes to prepare.  That payment must, of course, be given irrespective of the conclusion the expert reaches.  How can we fairly say that a person has the right to compel witnesses to appear for his defense and to confront those brought against him when no independent expert is available to the defense to evaluate the views of the state's experts or investigators?  


The unfairness of denying access to state-funded experts for indigent defendants is made all the more poignant when one realizes that for an indigent defendant there is at best substantial inconvenience and more commonly great risk in utilizing expert witnesses because one must expose one's strategic thinking as an open hearing must be held concerning any request for payment, a hearing at which the State may choose to oppose the expenditure of State funds. ****


Viewed in context, the request for state funding of experts is neither particularly onerous nor expensive. 


The State could not object if required to compel a defense witness to come to a trial in Morristown from Florida or California through the interstate compact.  The typical expert witness or investigator would add little more to the cost of a case than the transportation of an out of state witness.   In sum, the defense's ability to compel witnesses for its defense deprives the defendant of a fair and full defense if the State cannot pay for the production of such witnesses. 


A further factor affecting the opportunity for a fair and full defense is the admissibility of impeaching evidence.  If the defense has access to its own technical evidence and technically qualified witnesses, State's evidence which might otherwise go unchallenged may be subjected to the pointed examination available to someone who has the necessary skills and the winnowing of evidence which is the method of reaching truth through the adversarial process can be achieved meaningfully. 


Otherwise, we are forced to rely upon the integrity of the State's witnesses to look at both sides of the case and to make an equally strong case for the defense if that case is available.  In fact, as experience shows routinely, police officers rarely go look for alibi or exculpatory witnesses and State Crime Labs rarely sit down and try to examine all the prospects of a case which might acquit the defendant.


It is one thing to say that if they should stumble upon exculpatory evidence, they will provide it.  This is their obligation under law and is honorable as decent human beings.  It is quite another to say that they must take considerable effort to go out and look for exculpatory evidence.  See e.g., Note, Confrontation, Cross-examination and the Right to Prepare a Defense, 56 Geo. L. J. 939, 952 (1968).


No Tennessee cases hold that the State must pay for expert witnesses to assist indigents, especially in cases other than those involving first-degree charges or death penalty cases.

Two cases hold there is no such duty.  [cite]


We respectfully submit that a better reasoned case is one from Illinois: People v. Watson, 36 Ill. 2d 228, 221 N.E.2d 645 (1966).  In that case, a defendant was convicted of a attempted forgery and sentenced to one to five years in the state penitentiary.  Before trial, the indigent defendant's court-appointed lawyer moved that the defense be given funds to obtain the services of a question document examiner.  The defendant stated that he was indigent and his attorney signed an affidavit that in this opinion, such expert testimony was essential to an adequate defense for his client.  On argument of the motion, State contended that the handwriting was not an issue in a charge of attempted forgery by delivery of a forged check and also that there was no statutory authority for appointment of expert witnesses in non-capital cases.  The trial court denied the defendant's motion.  After conviction, the defendant appealed to the Supreme Court of Illinois contending that the trial court's refusal to provide him with expert assistance deprived him of due process of law guaranteed by the United States and Illinois Constitutions, in that, he was allowed to call witnesses in his own favor.  The court reversed the defendant's conviction.  The Illinois Supreme Court found that from the facts if the defendant did not sign the check, he did not deliver it since the prosecution's witness testified that the defendant signed the check in his presence.  Therefore, the issue of handwriting was material to the charge of attempting to deliver a forged instrument.  The court then considered the constitutional question.  The court held that in a case where expert assistance is necessary to establish a defense, the indigent defendant in Illinois is entitled to a reasonable fee for the purpose of hiring an expert witness.  The compulsory process clauses of the Illinois and United States Constitutions were held to guarantee to the accused the right to obtain witnesses in his own favor and that right, as noted above, included where necessary, the hiring of expert witnesses.  The court stated that this right was fundamental to the American legal system and "a right so fundamental should not be made to depend upon the financial circumstances of the defendant" 221 N.E.2d at 648. 


Of course, the defendant in any case could compel, using the subpoena power, the attendance of an expert witness but he cannot compel the preparation necessary towards forming an opinion.  See cases collected in 77 A.L.R.2d 1182 (1961) and updating materials.  It has generally been held that an expert cannot be required to make pretrial preparation "thus, although the defendant is afforded the shadow of the right to call witnesses, he is deprived of the substance."  221 N.E.2d at 648.  In effect, the Illinois Supreme Court said that the accused was entitled to effective compulsory process, just as he is entitled to effective assistance of counsel.  See e.g., Williams v. Beto, 354 Fed.2d 698 (5th Cir. 1965); Brubaker v. Dickson, 310 Fed.2d 30 (9th Cir. 1962).


An Illinois statute, Ill. Rev. Stat. ch. 38 ' 113-3 (e) (1965), provides for payment of expert witnesses in capital cases, but the court, while recognizing it as a step in the right direction, said the safeguards for a fair trial make no distinction between capital and noncapital cases. 


Seven other states have statutes specifically providing for payment of expert witness fees for indigent defendants, although some are quite limited in scope.  Cal. Civ. Proc. Code ' 1871 (any civil, criminal, or juvenile proceeding); Fla. Stat. Ann. ' 932.30 (Supp. 1967) (felony cases); N.H. Rev. Stat. Ann. ' 604-A:6 (Supp. 1965) (any criminal case-maximum of $300 exclusive of reasonable expenses and extraordinary circumstances); N.Y. Code Crim. Proc. ' 308 (maximum of $1,000); Pa. Stat. Ann. tit. 19, ' 784 (1964) (limited to capital cases); R.I. Gen. Laws Ann. ' 9-17-19 (1956) (on such terms and conditions as may be prescribed by the court); S.D. Code ' 36.0109 (Supp. 1960).  The federal government also has such a statute.  18 U.S.C. ' 3006A (e) (1964) (maximum of $300 exclusive of expenses reasonably incurred).


Many states have statutes providing for payment of ordinary witness fees when a defendant is unable to pay, but these have generally been construed to exclude payment of additional compensation of experts.  Goldstein and Fine, The Indigent Accused, The Psychiatrist, and the Insanity Defense, 110 U. Pa. L. Rev. 1061, 1083 (1962).  Therefore, the statutory provisions are not adequate and do not protect the indigent defendant, who often needs expert testimony as much as he needs  assistance of counsel.  While providing reasonable compensation of expert witnesses by the state is clearly a function of the legislature, the courts can do much to stimulate legislation by following the precedent set by Illinois.*****


Another aspect of the deprivation of an indigent defendant's right to a fair trial is the denial of investigative help, especially to those defendants who have not been able to make bond.  A defendant in jail is seriously hampered in aiding his attorney in preparing his defense.  Only with  great difficulty can he show his attorney the locale of the crime; it is impossible for him to go about gathering records, making photographs, locating witnesses, etc. Cf., Note, The Indigent's Right to an Adequate Defense: Expert and Investigational Assistance in Criminal Proceedings, 55 Cornell L. Rev. 632 (1970)


Courts in the United States have long recognized that "[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Griffin v. Illinois, 351 U.S. 12, 19 (1956) (plurality opinion, Black, J.)


This precept is most compelling when indigency alone would prevent an accused from introducing evidence to negate criminal responsibility.

[It] is a matter of common knowledge, that upon the trial of certain issues, such as insanity or forgery, experts are often necessary for prosecution and for defense.    . . .  [A] defendant may be at an unfair advantage if he is unable because of poverty to parry by his own witnesses the thrusts of those against him.  Reilly v. Barry, 250 N.Y.456, 461, 166 N.E. 165, 167 (1929) (Cardozo, C.J.)





     *    The crime laboratory formerly located at Walters State Community College used to grant requests from Public Defenders to perform evidentiary exams but is no longer willing to do so as a consequence of funding cuts.  The TBI crime lab will not help the defense as a matter of policy.


     Even when the lab at Walters State Community College performed investigations for the defense, its managers insisted that the results be public information and be presented both to the defense and to the prosecution.  This requirement, seemingly openhanded, in fact destroys the value of expert advice because it "raises the ante."  One of the advantages of having an expert's advice is the ability to "brainstorm".  If all results must be made available to the opposite side, then, in an adversarial proceeding, the other side is given access to one's inmost strategic thinking and to the organization of one's data at the earliest stage of the preparation of a case -- the most fundamentally important part of a lawyer's role in defending a case.

     ** E.g., the State of Tennessee pays for the telephone bills  of the offices of the Attorney General;  the Public Defender has to pay for a significant portion of the telephone bill for official business telephone calls OUT OF HIS OWN POCKET. 

     Public Defenders are allowed one office in a judicial district; the Attorneys General even have two offices in one city (Greeneville). 


     The Public Defender and his subordinates must pay a sizeable portion of their mileage and automobile expenses out of his and their OWN POCKETS; the Attorneys General have access to official automobiles and -- in some instances, car phones. 


     The State of Tennessee not only pays for the Continuing Legal Education of each attorney in the District Attorney General's office, but also pays for their transportation, food, and half of the cost of lodging while at training.  Public Defenders and their subordinates pay out of their own pockets for most of such training and are not reimbursed for travel expenses.  Moreover, the pay scales of the two agencies are such that the Public Defenders as a class are paid substantially less than the Attorneys General.


     ***  In one recent first-degree murder case (the Harville case), the Criminal Court judge reluctantly allowed a $1,000 payment to be authorized to the only forensic pathologist in the Third Judicial District. 


     The judge felt that this payment -- which was sought in part to cover the costs of an extensive examination of the defendant's blood for drug and other substances -- was unjustified as a simple blood exam can be done for perhaps $50 at the State's Crime Lab. He allowed the payment only after being assured by both sides that the case was one in which the State was likely to  seek the death penalty.


     From a defense perspective, this ruling gave us what we  needed at the moment, but its implications were chilling. 


     In the Harville case, as in many others not only did we need to have the exams done, but the tests had to be done with particular care as we were looking for possible by-products of LSD or other evidence of "ancient" drug use. By the time the Public Defender's office was assigned to the case at arraignment, almost a  week had passed since the killing.  Ordinary metabolic processes practically guaranteed that few,  if any,  metabolites would be left in the test specimens provided by the defendant. 

     Moreover, we wished to use the expert witness's expertise to look at possibility of other defense oriented technical evidence which we might be able to use.  This required considerable thought, discussion, and research.  Although the results so far has not proven particularly fruitful for the defense, and, indeed, we have been  asked for a further $5000 for further research,  not to have had this assistance or to have had it limited to a simple blood test would have greatly eviscerated the ability of that particular defendant to compel witnesses to come for his defense.

     ****  In one recent first-degree murder case (the Harville case), the criminal court judge reluctantly allowed a $1,000 payment to be authorized to the only forensic pathologist in the Third Judicial District.  He felt that this payment which was in part to cover the costs of an extensive examination of the defendant's blood for drug and other substances was unjustified as a simple blood exam can be done for perhaps $50 at the State's Crime Lab.  But the problem with this particular forensic examination was that not only did we need to have the exams done, these had to be particularly careful as we were looking for possible by-products of LSD or other ancient use.  Moreover, we wished to use the expert witness's expertise to look at possibility of other defense oriented technical evidence which we might be able to use.  This required considerable thought, discussion and research.  Although the result of his work so far has not proven particularly fruitful for the defense, not to have this assistance or to have had it limited to a simple blood test would have greatly eviscerated the ability of that particular defendant to compel witnesses to come for his defense.


     When we sought to have the witness come from Morristown and simply present himself here with the result of research equivalent to the cost of airfare from California to Morristown and back, great effort was required to win even this most narrow piece of expertise and, I suspect, we won this expertise only because the witness we proposed to retain is himself an agent of the Tennessee Bureau of Investigation and has a well-known prosecutorially oriented mind set.

     *****  There are several possible constitutional grounds for the right of an indigent defendant to receive expert assistance at the expense of the state.  The Illinois Supreme Court relied on the right to compulsory process guaranteed by the Illinois constitution, but also intimated that the effective implementation of this right is part of the due process clause of the fourteenth amendment. (10)  Other courts have considered the question one of effective assistance of counsel.  It can also be argued that denial of expert assistance violates the equal protection clause of the fourteenth amendment.