The Sixth Amendment to the U.S. Constitution provides, in relevant part, that a person standing criminal trial has the right to the assistance of an attorney for his defense. In Ake v. Oklahoma, the Supreme Court interpreted that portion of the Sixth Amendment to mean that a defendant also has the right to an expert “to assist in evaluation, preparation, and presentation of the defense.” It is not clear, however, whether a defendant’s right to such an expert entitles him to an independent expert, devoted to advocating specifically for the defense’s case.
That's like saying the Sixth Amendment clearly entitles criminal defendants to the assistance of an attorney but it is not clear if the Sixth Amendment guarantees an attorney that is independent, devoted to advocating specifically for the defense's case. Ake follows from the right to counsel recognized in Gideon v. Wainwright and ensures every defendant has an opportunity to present a defense fairly within the adversary system. McWilliams further argues that Justice Rehnquist’s dissent in Ake confirms that Ake clearly established the right to an independent expert because he disagreed with the Court’s holding that due process requires appointment of an expert who assists in “evaluation, preparation, and presentation of the defense,” arguing instead that a defendant is entitled only to a competent expert. McWilliams contends that Alabama Court of Criminal Appeals failed to apply this law by only availing McWilliams of the assistance of a mental health expert that he shared with the prosecution.
Alabama asserts that when Ake called for a mental health expert that was “independent” of the prosecution, it meant a neutral expert; one that was not selected, hired, or directed by the prosecution. Alabama contends that McWilliams mistakenly interprets “independent” to mean beholden to the case of the defense. Moreover, because Ake involved the claim that the defendant received no assistance at all, Alabama concludes that it would not be proper to extend the legal holding beyond the facts of Ake. Let's face it, the motivation behind Alabama's argument is they do not want to have to pay for experts for indigent criminal defendants.
The National Association of Criminal Defense Lawyers (NACDL) explains, however, the rationale of a California court which said that such a requirement makes effective the dictate that defense counsel be afforded reasonable opportunity to prepare for trial. NACDL further points out that the Texas Court of Criminal Appeals, in 1993, held that a single neutral mental health expert is not sufficient to satisfy the Due Process Clause under Ake. Therefore, because numerous states support the independent expert requirement, it was likely clearly established by Ake.
SOURCE: LEGAL INFORMATION INSTITUTE