6.2.5 Assistance in Addition to Counsel
In some circumstances, the Due Process Clause requires that defendants be appointed assistance in addition to legal aid. The leading case involved expert psychiatric assistance.
[W]hen a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue, if the defendant cannot otherwise afford one.62
Many statutes specifically assure criminal defendants nonlegal assistance. Federal law on point is clear:
(e) Services other than counsel.
(1) Upon request—Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate judge . . . if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.63
In the courts, the expert assistance matter has been much litigated. The cases involve a wide variety of experts, ranging from DNA scientists64 to fingerprint experts65 to ballistics specialists66 to hypnosis therapists.67 The standard for many courts is that the defendant must make a showing of "critical" need beyond a "possibility" that such assistance would significantly aid the defense.68 In the military justice system, the defense has a right to the government-funded assistance of an expert when the defense shows that such assistance is necessary by meeting the requirements of a three-pronged test. The...
