111.5Experts/Resources for Indigent Defendants
- An indigent defendant is entitled to receive appointed counsel, though that right may be waived or forfeited.
- An indigent defendant may also be entitled to certain other services to assist in his defense, based upon need or statute.
Appointment of Experts
An indigent defendant, or a defendant who hires an attorney but is not able to afford to pay for experts, may be entitled to state funds to hire experts. State v. Boyd, 332 N.C. 101 (1992). In addition to court-appointed counsel, an indigent defendant is entitled to funds for “other necessary expenses of representation,” such as experts and investigators. G.S. 7A-450(b), 454. This right is based on both statutory and constitutional grounds. A person who is able to retain counsel might still be considered indigent for purposes of paying for experts and other expenses of representation, and may be entitled to obtain state funds for such services. For example, in Ake v. Oklahoma, 470 U.S. 68 (1985), the Court ruled that an indigent person is constitutionally entitled to the services of a court-appointed psychiatrist when the defendant has made a “preliminary showing that his sanity at the time of the offense is likely to be a significant factor” in presenting a defense.
- Threshold Showing; Ex Parte Hearing
In State v. Ballard, 333 N.C. 515 (1993), the court ruled that when an indigent defendant timely moves for appointment of a psychiatric or psychological expert, the hearing is constitutionally required to be conducted ex parte if the defendant so requests. See also State v. Bates, 333 N.C. 523 (1993). The court in Ballard distinguished a request for a mental health expert from the request at issue State v. Phipps, 331 N.C. 427 (1992), where the court ruled that the trial judge did not err in denying an indigent defendant an ex parte hearing when the defendant applied for funds to employ a fingerprint expert. In two later cases, the courts once again ruled that the defendant was not entitled as a matter of right to have an ex parte hearing when seeking funds to hire a private investigator or an eyewitness identification expert. See State v. White, 340 N.C. 264 (1995); State v. Garner, 136 N.C. App. 1 (1999).
Limits on ex parte hearings?
Based on Phipps, White, and Garner, the prosecutor may want to consider filing a motion at the beginning of any serious felony case advising the court that defense requests for funds to hire experts in fields other than mental health are not required to be heard ex parte, and informing the court that the state requests notice and an opportunity to be heard if the state is opposed to the requests.
Whether the hearing is conducted ex parte or not, courts have ruled that the defendant must make a “threshold showing of the specific necessity for the assistance of the expert” requested. State v. Penley, 318 N.C. 30, 51 (1986). To make such a showing, defendant must establish that (1) he or she will be deprived of a fair trial without expert assistance; or (2) there is a reasonable likelihood that such assistance will materially aid in preparing a defense. State v. Gardner, 311 N.C. 489 (1984); State v. Phipps, 331 N.C. 427 (1992); State v. Robinson, 327 N.C. 346 (1990).
- Denial of Appointment of Expert or Other Assistance
A brief comparison of the facts and holdings in State v. Moore, 321 N.C. 327 (1988) and State v. Massey, 316 N.C. 558 (1986) is instructive when considering the propriety of defendant’s request for court-appointed experts. Although the cases are factually similar, the court reached different results when reviewing the trial court’s denial of requests for expert assistance. In both cases, a mentally challenged defendant was convicted of a felony based largely on his confession. In Massey, the reviewing court found that defendant had merely "asserted" that, due to his mental condition, he needed the assistance of a psychiatrist. In Moore, however, the court found that defendant had submitted “detailed evidence” of his suggestible nature, the coercive environment, and the materiality of the confession to the state’s case. Thus, the significant difference between the two cases appears to be the amount of detail set forth by defendants to support their requests for expert assistance.
In other words, “the state is not required by law to finance a fishing expedition for the defendant in the vain hope that ‘something’ will turn up” and “mere hope or suspicion that such evidence is available will not suffice.” State v. Alford, 298 N.C. 465 (1979); State v. Tatum, 291 N.C. 73 (1976); see also State v. Mills, 332 N.C. 392 (1992) (no error in denying appointment of experts in psychiatry, psychology, forensic serology, DNA identification testing, forensic chemistry, statistics, genetics, metallurgy; pathology, private investigation, and canine tracking as defendant failed to show particularized need for the experts).
- Examples - Denial of Appointment of Particular Experts Upheld
- Private investigator
State v. Gardner, 311 N.C. 489 (1984) (“We have held that the appointment of private investigators should be made ‘with caution and only upon a clear showing that specific evidence is reasonably available and necessary for a proper defense,’ because ‘[t]here is no criminal case in which defense counsel would not welcome an investigator to comb the countryside for favorable evidence.’” (quoting State v. Tatum, 291 N.C. 73 (1976)).
- Co-counsel or second attorney
State v. Massey, 316 N.C. 558 (1986) (concluding that “defendant presented no evidence to the trial court that would tend to establish nor does the record disclose that defendant's case was so factually or legally complex, or plagued with other difficulties as to require the appointment of assistant counsel to ensure defendant's right to a fair trial and an adequate defense” and also finding no error in denying appointment of investigator, statistician, social psychologist, clinical psychologist or psychiatrist).
- Accident reconstructionist
State v. Speight, 166 N.C. App. 106 (2004) (affirming trial court’s denial of request for appointment of expert where defendant “simply informed the trial court that he desired an accident reconstruction expert to review the State's evidence to see if there was any evidence to undermine the malice element of the second degree murder charges”; finding “[t]his undeveloped assertion by defendant . . . insufficient to establish the particularized showing required to receive state funds for expert assistance”).
- Additional mental health expert/specialist
State v. Brown, 357 N.C. 382 (2003) (affirming trial court’s conclusion that “defendant had not met his burden of showing particularized need,” noting that the court had already appointed a psychologist for defendant and that expert could consult with other experts).
- Psychiatric assistance
State v. Anderson, 350 N.C. 152 (1999) (affirming denial of expert where “defense counsel's request for assistance was based on mere speculation of what trial tactic the State would employ rather than the requisite showing of specific need”).
- Forensic crime scene expert
State v. McNeill, 349 N.C. 634 (1998) (“[W]hile a forensic crime-scene expert may have been of some assistance to defense counsel in preparing the case, we agree with the trial court that this was not an adequate showing of particularized necessity to require the State to provide funds for such an expert”).
- Jury selection expert
State v. Stokes, 308 N.C. 634 (1983) (no abuse of discretion where trial judge refused to order retention of expert in psychology experienced in jury selection in criminal cases; “to the contrary, this record shows that defense counsel diligently and adequately explored the question of whether each juror seated could give defendant an impartial and fair trial.”).
- Social Psychologist/Sociologist
State v. Oliver, 309 N.C. 326 (1983) (“The defendants here made no showing that there was a reasonable likelihood that a social psychologist would materially assist in the preparation of their defenses or that they would not receive a fair trial without a social psychologist's aid. Absent such a showing, we can find no error.”).
State v. Watson, 310 N.C. 384 (1984) (no abuse of discretion in denying fee for expert to determine extent of and impact of pretrial publicity; “[h]e had the full opportunity before trial to assemble and document all available data on pretrial publicity in this case and to question each potential juror about exposure to the publicity and any effect this may have had. Defendant has not shown what, if anything, the requested survey would have added to this information.”); State v. Adcock, 310 N.C. 1 (1984) (no error in denying fee for expert to update his statistical data about jury venire; “defendant has failed to show a reasonable likelihood that Mr. O'Reilly's additional services would have materially assisted defendant in his defense or that without such evidence he probably would not have received a fair trial.”).
State v. Penley, 318 N.C. 30 (1986) (“The defendant certainly had available and used ample medical expertise in preparing and presenting his defense. The assistance of the experts sought by the defendant clearly would have been of little if any value to him, and there was no risk of an erroneous deprivation of expert assistance as a result of the trial court's denial of the defendant's motions.”).
- Fingerprint expert
State v. Wilson, 322 N.C. 117 (1988) (no error in trial court denying defendant’s request; “[D]efendant had merely indicated that assistance in looking for fingerprints and the need for a pathologist and psychologist might be helpful to him in preparing his defense. As Johnson and its progeny clearly dictate, a more particularized showing than this is required”).
- Appellate law attorney/expert
State v. Taylor, 327 N.C. 147 (1990) (no error in trial court denying defendant’s request; “we doubt that an expert witness would be of any real help to the Superior Court or this Court in deciding whether ineffectiveness of counsel on the direct appeal of these cases led this Court into either factual or legal error.”).
- Eyewitness identification expert
State v. Abraham, 338 N.C. 315 (1994) (no error in trial court denying defendant’s request; “Defendant had opportunity during cross-examination, which he exercised, to emphasize any inconsistencies in testimony as well as to underscore other factors such as lighting conditions or distance which would have affected the accuracy or credibility of the identifications. The assistance of an expert would have been of marginal additional value as to these points.”).
- Private investigator
- Examples - Denial of Appointment of Expert Reversed/Error
State v. Gambrell, 318 N.C. 249 (1986) (reversible error where trial court denied request for expert; “[t]he appointment of state employed psychiatrists may fulfill the state's constitutional obligation. Their employment by the state, we are satisfied, creates no conflict of interest which would disable them from fulfilling the constitutional requirements. What is required, as Ake makes clear, is that defendant be furnished with a competent psychiatrist for the purpose of not only examining defendant but also assisting defendant in evaluating, preparing, and presenting his defense in both the guilt and sentencing phases.”); State v. Parks, 331 N.C. 649 (1992) (trial court erred in denying request; “[c]ertainly, the evidence before the trial court established more than a “mere hope or suspicion” that a court-appointed psychiatrist would be able to materially assist in the preparation and presentation of defendant's case.”); State v. Jones, 344 N.C. 722 (1996) (trial court erred in denying request; “[w]e conclude that, under all the facts and circumstances known at the time the motion for psychiatric assistance was ruled upon, defendant had made the requisite threshold showing that his mental capacity when the offense was committed would be a significant factor at trial and that there was a reasonable likelihood that an expert would be of material assistance in the preparation of his defense.”).
- Mental health expert
State v. Boyd, 332 N.C. 101 (1992) (court erred in denying request for appointment of mental health expert on ground that defendant had retained counsel; defendant may be entitled to state funds for appointment of expert if he or she has insufficient funds when a need for an expert arises; court does not decide whether defendant was entitled to state funds in this case).
- Fingerprint expert
State v. Moore, 321 N.C. 327 (1988) (trial court erred in denying request; “[d]efendant showed that absent a fingerprint expert he would be unable to assess adequately the state's expert's conclusion that defendant's palm print was found at the scene of the attack. Defendant also demonstrated that, because the victim could not identify her assailant, this testimony by the state's expert was crucial to the state's ability to identify defendant as the perpetrator of the crimes charged against him.”); State v. Bridges 325 N.C. 529 (1989) (“[I]t is error of constitutional magnitude to refuse such funds when the defendant has made a ‘threshold showing of specific need’ and when expert assistance is of material importance to his defense or its absence would deprive him of a fair trial.”).
Appointment of Interpreters
- Interpreters for Deaf Persons; Chapter 8B
An interpreter is a necessary expense for a deaf person who is entitled to counsel under G.S. 7A-450(a). When a deaf person testifies in a court proceeding, the interpreter must qualify as an expert and take an oath or affirmation to make a true translation. G.S. 8C-1, Rule 604.
- Language Interpreters
An indigent defendant who does not speak or understand English (as well as a witness for the indigent defendant) is entitled to a court-appointed language interpreter. G.S. 7A-314(f). The interpreter must qualify as an expert and take an oath or affirmation to make a true translation when interpreting defendant’s testimony. G.S. 8C-1, Rule 604.
An indigent defendant is entitled to receive a free copy of a transcript of prior proceedings if:
- The transcript is necessary to prepare an effective defense at trial, Britt v. North Carolina, 404 U.S. 226 (1971), or to allow for effective appellate review, Griffin v. Illinois, 351 U.S. 12 (1956);
- There are no alternative devices available which are substantially equivalent to a transcript. State v. Rankin, 306 N.C. 712 (1982) (error not to provide free transcript of prior trial that resulted in mistrial for use at retrial); State v. Reid, 312 N.C. 322 (1984) (similar ruling); State v. Tyson, 220 N.C. App. 517 (2012) (error to deny trial transcript for use in retrial after mistrial).
However, an indigent defendant is not entitled to a daily transcript. State v. Phillips, 300 N.C. 678 (1980). Additionally, the defendant does not have a right to a transcript of the prior trial of a codefendant. See State v. McAllister, 287 N.C. 178 (1995); State v. McCullough, 50 N.C. App. 184 (1980).