3.8 MOTIONS TO APPOINT EXPERTS AND INVESTIGATORS
In Ake v. Oklahoma, 117 the United States Supreme Court held that, in certain circumstances, an indigent capital defendant is entitled to appointment of a mental health expert. Critically, in reaching this determination the Court stated its preference that defendants be permitted to make a showing of need ex parte. 118 In Caldwell v. Mississippi, 119 however, the Court upheld the denial of an indigent's requests for appointment of a criminal investigator, a fingerprint expert, and a ballistics expert. In Husske v. Commonwealth, 120 the Virginia Supreme Court recognized that
Ake and Caldwell, when read together, require that the Commonwealth of Virginia, upon request, provide indigent defendants with "the basic tools of an adequate defense." . . . This Due Process requirement, however, does not confer a right upon an indigent defendant to receive, at the Commonwealth's expense, all assistance that a non-indigent defendant may purchase. Rather, the Due Process Clause merely requires that the defendant may not be denied "an adequate opportunity to present [his] claim fairly within the adversary system." 121
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The Husske court then announced a two-pronged test for determining when experts must be appointed: (i) the indigent defendant must demonstrate that the matter requiring the assistance of the expert is "likely to be a significant factor in his defense," and (ii) the defendant will be prejudiced by the lack of expert assistance. 122
The "likely to be a significant factor in his defense" showing requires more than an "undeveloped assertion" that the expert is necessary to the defense. 123 In general, the defense should be prepared to demonstrate to the trial judge that a forensic issue is likely to be significant in the case and that an expert in the forensic field in question could materially assist the defense in preparing and presenting its case. If the motion is made and denied, it should be renewed at every appropriate point, such as (i) after the Commonwealth's expert has testified and (ii) between the verdict and the commencement of the penalty hearing. Failure to renew these motions has been held a waiver, 124 and might constitute inadequate representation. 125 For a motion for appointment of a mental health expert, see Appendix 3-9 of this chapter.
Speculative and conclusory statements of counsel are insufficient to meet the standard of a particularized need for the assistance of an expert at state expense. 126 Winston v. Commonwealth 127 upheld the trial court's refusal to appoint a "mitigation expert" and a psychologist to examine the competence of an eight-year-old witness.
The Virginia Supreme Court has described appointment of an investigator as a matter of grace rather than right and has consistently affirmed trial court denials of motions seeking the appointment of investigators. 128 However, the American Bar Association Guidelines for Appointment and
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Performance of Defense Counsel in Death Penalty Cases provides that "the defense team should consist of no fewer than two attorneys qualified in accordance with [the guidelines], an investigator, and a mitigation specialist." 129 For a sample motion for appointment of an investigator and a supporting memorandum, see Appendices 3-10 and 3-11 of this chapter.
The appointment of forensic experts and investigators requires a detailed showing of need by the defense. In making the showing, the defense might be required to divulge information that would generally be nondiscoverable by the prosecution. Consistent with Ake v. Oklahoma, 130 the Virginia General Assembly determined that in most instances it is appropriate for the defense to make its showing in camera and ex parte and, therefore, adopted section 19.2-264.3:1.3, which sets forth the procedures for seeking experts in capital cases. For a sample motion and attorney affidavit in support of an ex parte hearing, see Appendices 3-12 and 3-13 of this chapter.
The Fourth Circuit "consistently has rejected the notion that there is either...
