COURT FOR THE COUNTY OF 
| Chapter 5: Expert And Investigative Assistance |
Counsel appointed by the court to represent an indigent criminal defendant is entitled to the assistance of expert witnesses, at the state's expense, where there is a factual "nexus between the facts of the case and the need for an expert." People v Jacobsen, 448 Mich 639, 641 (1995); MRE 706; MCL 775.13a; MSA 28.1259(1). If you are requesting the appointment of a psychiatric expert, where you plan to present an insanity defense, you must reveal your intent to assert that defense in order to get that expert appointed. MCL 768.20a; MSA 28.1043(1).
Naturally, you can see what is wrong with this picture. If your client were not indigent, you could hire your own expert or experts, and have them do an examination of your client or other evidence in your control without having to reveal this exploration to the prosecution.
In People v Leonard, 224 Mich App 569, 580-581 (1997), the Michigan Court of Appeals recently summarized a defendant's due process right to the appointment of a defense expert:
Under the Due Process Clause, states may not condition the exercise of basic trial and appeal rights on a defendant's ability to pay for such rights. Ake v Oklahoma, 470 US 68; 105 SCt 1087; 84 LEd2d 53 (1985); Britt v North Carolina, 404 US 226, 227; 92 SCt 431; 30 LEd2d 400 (1971); Griffin v Illinois, 351 US 12, 17-19; 76 SCt 585; 100 LEd 891 (1956). Indigent defendants, however, need not be provided with all the assistance that wealthier defendants might buy, but fundamental fairness requires that the state not deny them "an adequate opportunity to present their claims fairly within the adversary system." Moore v Kemp, 809 F2d 702, 709 (11th Cir. 1987), cert den 481 US 1054 (1987), quoting Ross v Moffitt, 417 US 600, 612; 94 SCt 2437; 41 LEd2d 341 (1974).
Some examples of expert witnesses:
Psychiatric Experts. Where the insanity defense is raised, an indigent is entitled to appointment of a clinician of his or her choice for an independent psychiatric evaluation. MCL 768.20a(3); MSA 28.1403(1)(3); Ake v Oklahoma, 470 US 68; 105 SCt 1087; 84 LEd2d 53 (1985); People v Dumont, 97 Mich App 50 (1980).
DNA Experts. The defense must show a nexus between the facts of the case and the need for a DNA expert. People v Orlandus Leonard, 224 Mich App 569 (1997). This requirement is met whenever DNA evidence proves an element of the corpus delecti. Id. Relying on Ake, supra, the Alabama Supreme Court held that whenever the state intends to introduce DNA evidence, the defendant has the due process right to appointment of a DNA expert. Ex parte State of Ala (Dubose v State), 662 So2d 1189 (Ala, 1995).
Accident Reconstruction Experts. Where necessary for his or her defense, a defendant is entitled to payment for an accident reconstruction expert. People v Kosiecha, 185 Mich App 672 (1990); People v England, 176 Mich App 334 (1989); aff'd 436 Mich 305 (1990).
Breathalyzer Experts. A defendant must show that expert testimony on breathalyzer testing of blood alcohol levels would likely be of benefit to the defense. People v Jacobsen, 448 Mich 639 (1955).
Identification Experts. Due process and fundamental fairness require the appointment of expert in eyewitness identification. People v Leonard, 224 Mich App 569 (1997); United States v Smithers, 212 F3d 306 (CA6, 2000).
Appointed counsel should also expect the court to pay the costs of adequate investigation. Since effective assistance of counsel requires careful and competent investigation, courts may pay the costs of investigations. People v Davis, 199 Mich App 502 (1993). While some counties have procedures in place for paying investigative costs, don't be limited by those procedures as to type or amount. When you decide investigation is needed that isn't customarily covered by your county, consider filing a motion requesting additional assistance.
Under federal law, an indigent defendant has a right by statute to make these requests ex parte. 18 USC 3006A(e)(1). There is no statute or case law in Michigan providing a similar right. That shouldn't stop you, however, from trying.
The following sample motions include both ex parte requests for appointment of investigators and experts, and traditional motions. When your motion is out of the ordinary in your jurisdiction, we recommend that you include a memorandum of law.
5.2 Motion for Appointment of Investigator [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF
___________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
/
, by 
attorney, moves this Court for the appointment of an investigator for the
reasons stated in this motion and the accompanying memorandum of law. 
specifically requests
the appointment of 
for this purpose. In support of this motion,
counsel states the following:
1. Effective assistance of counsel, guaranteed by the federal and state constitutions, requires competent investigation. People v Davis, 199 Mich App 502 (1993); US Const, Am VI; Mich Const 1963, art 1, §20.
A. Where a criminal defendant is indigent, courts are obligated to pay the costs of adequate investigation. Davis, above, 199 Mich App at 518.
B. 
is indigent and cannot afford to pay the costs of conducting an investigation.
For these reasons, 
requests that this Court appoint 
, at state
expense, to assist counsel in preparing for trial, including a retainer in the amount of 
, as well as
provisions for interim billing.
Respectfully submitted,
___________________
Attorney for Defendant
5.3 Ex Parte Motion for Appointment of Eyewitness Identification Expert [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
___________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
/
, by 
attorney, and pursuant to MCL 775.13a; MSA 28.1250(1) and MRE 706,
moves this Court for the appointment of an expert in the area of eyewitness identification, for the reasons stated in
this motion and in the accompanying memorandum of law. 
specifically requests the appointment
of 
for this purpose. Appointment of 
is requested for the following reasons:
2. The possibilities of mistaken identification and a wrongful conviction are ones that this Court should seek to avoid, and an informed trier of fact regarding the problems with eyewitness identification testimony will help to guard against that danger.
3. Due process and fundamental fairness require the assistance of an expert in eyewitness identification. People v Leonard, 224 Mich App 569 (1997); People v Hill, 84 Mich App 90 (1978).
5. 
has requested this relief ex parte because his due process rights, supported by analogy to
federal law, permit him to keep his defense strategy confidential. 18 USC 3006A(e)(1).
For these reasons, 
requests that this Court appoint 
, an eyewitness
identification expert, at state expense to assist counsel in preparing for trial, including a retainer in the amount of
, as well as provisions for interim billing.
Respectfully submitted,
_______________________
Attorney for Defendant