In appropriate cases, trial judges can provide the opposition with access to expert resources. Defense experts are often important in cases involving forensic identification expertise. Counsel will frequently need expert guidance to determine whether a research study is methodologically sound and, if so, whether the data adequately support the specific opinion proffered, and the role, if any, that subjective judgment played in forming the opinion.
The NAS 1992 DNA report stressed that experts are necessary for an adequate defense in many cases: “Defense counsel must have access to adequate expert assistance, even when the admissibility of the results of analytical techniques is not in question because there is still a need to review the quality of the laboratory work and the interpretation of results.”465 According to the President’s DNA Initiative, “[e]ven if DNA evidence is admitted, there still may be disagreement about its interpretation—what do the DNA results mean in a particular case?”466
The need for defense experts is not limited to cases involving DNA evidence. In Ake v. Oklahoma,467 the Supreme Court recognized a due process right to a defense expert under certain circumstances.468 In federal trials, the Criminal Justice Act of 1964469 provides for expert assistance for indigent defendants.
463. “[T]he Court concludes that the opinion Troedel had fired the weapon was known by the prosecution not to be based on the results of the neutron activation analysis tests, or on any scientific certainty or even probability. Thus, the subject testimony was not only misleading, but also was used by the State knowing it to be misleading.” Id. at 1459–60.
464. Id. at 1459 (“[A]s Mr. Riley candidly admitted in his deposition, he was ‘pushed’ further in his analysis at Troedel’s trial than at Hawkins’ trial…. [At the] evidentiary hearing held before this Court, one of the prosecutors testified that, at Troedel’s trial, after Mr. Riley had rendered his opinion which was contained in his written report, the prosecutor pushed to ‘see if more could have been gotten out of this witness.’”).
465. NRC I, supra note 24, at 149 (“Because of the potential power of DNA evidence, authorities must make funds available to pay for expert witnesses….”).
466. President’s DNA Initiative, supra note 450.
467. 470 U.S. 68 (1985); see Paul C. Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L. Rev. 1305 (2004).
468. Ake, 470 U.S. at 74.
469. 18 U.S.C. § 3006(A).