Federal Judicial Center -- 2004
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        C      Investigators and Experts
        C-1  Types of experts and investigators
        C-2  Determining whether an expert is "reasonably necessary"

According to data discussed in the Spencer Committee Report, both the prosecution and the defense rely on experts more extensively in capital cases than in other federal criminal cases. Id. at 23. Because of the seriousness of the charge or charges and the stakes involved in capital cases, the court has a responsibility to ensure that an indigent defendant obtains the necessary services to prepare an effective defense, which inevitably includes appointing experts and investigators. Such experts and investigators play an important role in death-penalty litigation. In the event a defendant is found guilty, the court will move into the second phase of trial, the penalty phase, to determine whether the death penalty should be imposed. At that time, the government and the defendant will present aggravating and mitigating evidence to the jury. Consequently, defense counsel at the very least will have to investigate statutory and nonstatutory mitigating factors in preparing an adequate defense. Under Lockett v. Ohio, 438 U.S. 586, 604–05 (1978), the scope of mitigation testimony that a defendant can present is fairly broad. A defense attorney’s failure to discover or present mitigating evidence can be potentially prejudicial to the defendant and could possibly result in a claim of ineffective assistance of counsel by the defendant.

For example, in Kenley v. Armontrout, 937 F.2d 1298 (8th Cir. 1991), the court held that the defense counsel’s failure to present mitigating evidence regarding the defendant’s medical and psychological history constituted ineffective assistance of counsel in the penalty phase of the case, and it reversed the death penalty imposed in that case. Similarly, in Antwine v. Delo, 54 F.3d 1357 (8th Cir. 1995), cert. denied, 115 S. Ct. 908 (1996), the court held that the defense counsel had rendered ineffective assistance at the penalty phase of the case because counsel failed to present evidence of the petitioner’s mental condition.

The importance of mitigation investigations flows from the constitutional requirement, articulated in Woodson v. North Carolina, 428 U.S. 280 (1976), that there be an individualized determination as to whether the death penalty is the appropriate penalty.

A great deal of mitigation information can be collected by experts and investigators who specialize in death-penalty mitigation investigation.

Title 21 USC 848(q)(9) addresses the utilization of expert services in capital cases and provides as follows:

Upon a finding that investigative, expert or other services are reasonably necessary for the

representation of the defendant, whether in connection with issues relating to guilt or sentence, the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor under Paragraph (10).

The statute further provides that no ex parte requests for such services may be considered unless a proper showing is made of the need for confidentiality. According to the Federal Death Penalty Resource Counsel, motions to proceed on ex parte requests for experts have, in practice, been routinely granted.

C-1    Types of experts and investigators

Certain experts or investigators are frequently requested by defense counsel in capital cases. Some of the more common experts requested are mitigation specialist, psychologist or psychiatrist, general investigator, and jury consultant.

a. Mitigation specialist. Mitigation specialists are unique to capital cases, so their role is not familiar to most federal judges. At the same time, the Spencer Committee Report refers to the work of mitigation specialists as part of the "standard of care" in a capital case. Spencer Committee Report at 51.

A mitigation specialist is an expert qualified by knowledge, skill, experience, or training as a mental health or sociology professional to investigate, evaluate, and present psychosocial and other mitigating evidence to persuade the sentencing authority that a death sentence is an inappropriate punishment for the defendant. A mitigation specialist coordinates the investigation of the defendant’s life history, identifies issues requiring evaluation by a psychologist, psychiatrist, or other professional, and helps attorneys find experts to present testimony and documentary materials for review. Id. at 24.

Specific services performed by a mitigation specialist include

• interviewing the defendant and his or her family and friends regarding sensitive areas of mitigation evidence;

• obtaining and evaluating birth, school, social welfare, employment, jail, medical, and other records;

• analyzing any drug and alcohol use history;

• working with the defendant’s family, community, and clergy in the development of other evidence favorable to the defendant at the penalty phase;

• suggesting testing in particular medical fields based on the mitigation investigation; and

• structuring the actual presentation of mitigation testimony at the sentencing hearing.

A mitigation specialist normally assists an attorney by assembling and interpreting information, but sometimes also testifies at the penalty phase. Most of the judges we interviewed noted favorably the depth of investigation done by mitigation specialists, such as finding old school and medical records of the defendant. A few judges did not think the mitigation specialists in their cases had done a good job; one judge said that "some are of dubious qualification" and that he had reservations about their value in a capital case. On the other hand, attorneys interviewed for the Spencer Committee Report uniformly stressed the importance of having a mitigation specialist to oversee the mitigation investigation and help them prepare for the penalty phase. In addition, the Spencer Committee notes that the work performed by a mitigation specialist would otherwise normally be done by an attorney at a higher rate, and thus authorizing the use of a competent mitigation specialist lowers costs. Id. at 24–25.

It appears that it is important to ensure that the mitigation expert proposed by the defense is highly qualified, perhaps with federal capital-case experience. The judges we interviewed had presided over early federal death-penalty trials, in which the quality of these experts apparently was more variable. In addition, the Spencer Committee Report notes that qualified mitigation specialists are "in short supply" (Id. at 51) and may not always be found in the district in which the case is pending. To help ameliorate this problem, the committee recommended that the federal defender program consider establishing salaried positions within federal defender organizations for mitigation specialists. Id., Recommendation 7a, at A-4. The committee also recommended that a list be developed of mitigation specialists and other experts willing to provide the assistance most frequently needed in death-penalty cases. Id., Recommendation 7c, at A-4.

b. Psychologist or psychiatrist. In a death-penalty case, a psychologist, psychiatrist, or other type of mental health professional might be asked to evaluate the defendant in regard to both possible guilt-phase issues (such as an insanity defense or competency to stand trial) and mental health issues relevant to mitigation. The collection of such information normally includes interviewing the defendant and performing a series of standardized psychological tests. If such tests suggest a neurological impairment, the services of a neurologist or neuropsychologist may also be requested for further evaluation and testing. In addition, if the government intends to argue future dangerousness as an aggravating factor, the defense counsel may request that a forensic psychologist evaluate the defendant with respect to this issue and assist the defense counsel in understanding the psychological issues relating to the defendant’s future dangerousness.

If the defendant intends to offer mental health evidence at the guilt or penalty phase, the government will often move to have an examination of the defendant conducted by its own mental health expert (see section II.E.1 infra for a discussion of this issue).

c. General investigator. Guilt-phase investigators, whose services are familiar to judges from other criminal cases, are requested more frequently in capital cases than in non-capital homicide cases, [Footnote 10] and their use is generally granted in capital cases. Guilt-phase investigators generally develop information to assist in defending the substantive charges in the case, including identifying potential witnesses.

d. Jury consultant. Like mitigation specialists, jury consultants are used frequently in capital cases but not frequently in non-capital cases. Tasks that might be performed by a jury consultant include assisting in drafting proposed juror questionnaires; interpreting the results of juror questionnaires; advising attorneys on follow-up questions to ask during voir dire; and advising attorneys on which jurors to challenge.

According to the materials we collected and information in the Spencer Committee Report, requests for jury consultants are frequently granted. In some cases, judges denied requests for jury consultants because they believed that the attorneys were capable of performing the same tasks themselves. In cases in which the government has used a jury-selection expert, however, judges generally have permitted the use of one by the defense as well.

e. Other experts. Although the experts listed above have been appointed with some frequency in capital cases, judges have had more difficulty with determining whether to allow some other types of experts. One problematic issue for a number of judges involved the likelihood of different experts investigating and later testifying on similar issues. Some of these judges voiced concern that such duplication of services or testimony would not only prolong the litigation, but also increase its costs. For example, one judge commented that it was highly probable that a psychologist would cover much of the same mental health information as a social worker, but he authorized both experts out of concern that if he denied the request the case would ultimately be remanded for a new trial. In another case, a judge denied a request for a psychologist when the defendant’s requests for several other mental health professionals had been approved.

C-2    Determining whether an expert is "reasonably necessary"

In determining what types of experts are "reasonably necessary," the courts are guided by two Supreme Court decisions: Ake v. Oklahoma, 470 U.S. 68 (1985), and Caldwell v. Mississippi, 472 U.S. 320 (1985). In Ake, the court set forth three relevant factors in determining whether, and under what conditions, a psychiatrist’s participation is important enough to require the government to provide an indigent defendant with access to a psychiatrist during the preparation of the defense case. The three factors are

1. the private interest that will be affected by the government’s actions;

2. the government’s interest that will be affected if the safeguard is to be provided; and

3. the "probable value of the additional or substitute safeguards that are sought and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided." Ake, 470 U.S. at 77.

In Ake, the court held that a due process violation had occurred when the defendant was denied access to a psychiatrist.

A different conclusion was reached in Caldwell. In Caldwell, the petitioner had requested appointments of a criminal investigator, a fingerprint expert, and a ballistics expert, all of which were denied by the trial court. The Supreme Court affirmed the decision, stating, "Given that petitioner offered little more than undeveloped assertions that requested assistance of a criminal investigator, fingerprint expert and ballistics expert would be beneficial, there was no deprivation of due process in trial judge’s denial of these requests." Caldwell, 472 U.S. at 323.

In the cases we reviewed, most judges required that counsel provide a description of the type of services to be performed, an estimate of the time required to perform those services, a cost estimate, and the background or relevant experiences of the expert before authorizing any expert or investigative service. This information assisted the judges in making informed decisions regarding which experts to appoint and also brought to light possible instances of duplication of work by other experts requested by counsel.

FOOTNOTES:

10     According to data cited by the Spencer Committee, from FY 1992 to FY 1997, investigators were used in 65% of capital cases, compared with 20% of non-capital homicide cases. Spencer Committee Report at 22 n.36.