In a criminal case, if a defendant is unable to personally bear ligation costs, the state is obliged to provide defense counsel,
and the government is obliged to enable a criminal defendant
access to psychological and medical experts (Ake v. Oklahoma,
1986) when the defendant can first make “substantial threshold
showing” (Panetti v. Quarterman, 2007) that his mental state
is relevant to the proceedings. Ironically, defendants can find
themselves obliged to make a threshold showing to gain access
to funds for an expert evaluation, which is necessary to meet the
threshold in the first place.
The U.S. Supreme Court has agreed to hear a case that may
help clarify when a criminal defendant should be granted access
to an expert to assess his mental health. In the case, Kevan
Brumfield argues that a Louisiana state court’s denial of his
post-conviction request for funding to develop his claim that
he is mentally retarded — and therefore not eligible for the
death penalty — violates constitutional protections. Brumfield
was convicted of the 1993 murder of a Baton Rouge police
officer. He was sentenced to death in 1995 before the decision
in Atkins v. Virginia (2002) made clear that people with what
the law still refers to as “mental retardation” cannot be executed,
so Brumfield’s intellectual limitations were not made a central
issue at his original trial.
Before the Supreme Court agreed to hear Brumfield’s case,
the Fifth Circuit Court of Appeals issued a ruling, noting that the
Supreme Court has never held that a defendant’s right to present
evidence that he meets the legal standard of mental retardation
required a court or the state to provide the prisoner with funds
to obtain such expert evidence for purposes of a threshold
showing (Brumfield v. Cain, 2014). Indeed, just the opposite was
suggested by Judge Higginbotham in Morris v. Dretke: “[T]he
State was within its rights to deny [the petitioner] assistance in
obtaining intellectual testing” in order to make out a prima facie
case of mental retardation (2005, p. 501).
The Louisiana Code of Criminal Procedure defines
“mental retardation” as a disability characterized by significant
limitations in both intellectual functioning and adaptive
behavior as expressed in conceptual, social and practical
adaptive skills. The Supreme Court has also recognized that
determining whether an individual meets the legal standard
of “mental retardation” requires thorough analysis of IQ test
findings and adaptive functioning, including consideration
of past performance, environment and upbringing (Hall v.
Florida, 2014). The interpretation of individual performance on
psychological assessment instruments and integration of that
data with evidence of adaptive functioning; medical, social, and
educational history; and overall psychological functioning is a
complex task that requires expertise that is beyond the reach of
a defendant and his counsel without expert assistance.
The Fifth Circuit’s finding that access to expert witnesses
accrue to a criminal defendant only after he has made a
“substantial threshold showing” of a mental disorder or
intellectual disability is analogous to a lifeguard offering a lifeline
to a drowning man just as soon as the man can swim close enough
to the shore to keep the lifeguard from having to get wet. n
“Judicial Notebook” is a project of APA Div. 9 (Society for the
Psychological Study of Social Issues).
Get that man a psychologist
When is a criminal defendant is entitled to
access to psychological and other experts?
By Robert A. Beattey, JD, MA • Graduate Center at City University of New York and
Cynthia Calkins, PhD • John Jay College of Criminal Justice
Ake v. Oklahoma, 470 U.S. 68 (1986).
Brumfield v. Cain, 744 F.3d 918 (5th Cir. 2014).
Hall v. Florida, 134 S.Ct. 1986 (2014).
Hannaford-Agor, P., & Walters, N. L. (2013, January).
Estimating the cost of civil litigation. Retrieved January
2, 2015, from National Center for State Courts Court
Statistics Project: www.courtstatistics.org.
Morris v. Dretke, 413 F.3d 484 (5th Cir. 2005).
Panetti v. Quarterman, 551 U.S. 930 (2007).
The U.S. Supreme Court has agreed
to hear a case that may help clarify
when a criminal defendant should be
granted access to an expert to assess
his mental health.