The Importance of An Expert Witness for The Defense

This post examines the importance of retaining an expert witness for the defense to secure a fair trial by Sixth Amendment standards. The post uses a recently decided case to highlight the issue.

A Recent Cold Case Solved

In 1993, Detroit Police found a dead woman in the basement of a Detroit office building. The murder remained unsolved for nearly two decades.

Five years ago, however, a “cold case” unit of the Detroit Police Department sent a vaginal swab from the dead body to the MSP crime lab. A DNA match led to Kennedy’s conviction.

At Kennedy’s trial, his court-appointed defense counsel moved the court for the appointment of a DNA expert; an expert witness for the defense. The prosecutor planned to introduce two DNA experts in order to establish the identity of the murderer. The vaginal swab produced the match with Kennedy along with an unidentified male contributor.

Just last month, a 2-1 Court of Appeals decision affirmed Kennedy’s conviction on various grounds. The decision includes a ruling that Due Process requirements do not include an expert witness for the defense. The Wayne County Circuit Court judge’s denial of Kennedy’s request was not unconstitutional.

At trial, defense counsel requested the appointment of a DNA expert for a very limited purpose. The only stated purpose for the expert was to coach defense counsel for the cross-examination of the prosecutor’s expert. Rather than appoint an expert for Kennedy, the trial judge simply ordered that defense counsel could “read-up” on the prosecutor’s expert witnesses and could talk with the prosecutor’s experts.

Court of Appeals Addresses DNA Expert

In its per curiam unpublished opinion, the Court of Appeals addressed the Due Process argument concluding that defense counsel did not present a particularized need for the requested expert. Rather than simply requesting the expert for the purpose of coaching defense counsel on technical cross-examination, Kennedy’s lawyer should have clearly laid out the prosecutor’s theory of identification via DNA, and then made a showing of how a defense expert could rebut that showing.

Because the defense counsel took the easy road, his request for a DNA expert was property denied according to the Court of Appeals. Borrowing language from the Michigan Supreme Court from a previous expert witness case, the Court held:

A defendant is not entitled to a DNA expert without making a particularized showing of a need for the expert. It is not enough for the defendant to show a mere possibility of assistance from the requested expert. Without an indication that expert testimony would likely benefit the defense, a trial court does not abuse its discretion in denying a defendant’s motion for appointment of an expert witness.

Defense counsel only suggested that a court-appointed expert would assist with cross-examination preparation. He should have gone further and developed a specific theory that required an expert to convey. With this weak request, the trial court properly denied the motion according to two of the three intermediate appellate judges.

Dissenting Opinion

In her dissent, Judge Cynthia Diane Stephens had this to say about the issue:

This is a DNA case. Nearly two decades ago DNA evidence was collected from the victim, who was both strangled and sexually assaulted. It was only when that evidence was tested that defendant was charged with murder. The age and size of the DNA sample, its storage process and testing methodology were all likely issues of contention in this case. Trial counsel understood that this DNA evidence was the lynchpin of the prosecutions’ case and asked the court for the appointment of Zubel, an eminently qualified expert to assist him in preparing his client’s defense. Zubel was a former prosecutor who trained prosecutors on litigating forensic science issues in criminal cases. The trial court however, denied Zubel’s appointment.

The court seemed to presume that despite the scientific nature of the evidence at issue, counsel could prepare for examination of the prosecutions’ witnesses and otherwise prepare an effective litigation strategy, including plea considerations, through reading and solicitation the advice of some mythical expert who would consult for free.

To the contrary, this is a case like Ake where “[w]ithout a[n] [expert’s] assistance, the defendant cannot offer a well-informed expert’s opposing view, and thereby loses a significant opportunity to raise in the jurors’ minds questions about the State’s proof of an aggravating factor.” At trial, the prosecution presented two forensic experts. Through these experts, the jury learned about DNA, different types of DNA testing, the DNA testing results in this case, and the meaning of the test results as applied to defendant. It was unfair for defense counsel to be expected to thoroughly challenge these experts without, at least the opportunity to consult with an expert of its own.

In preparing for trial, especially in a capital case, it is crucial to develop compelling defense theories and legal arguments. The defense’s case must leave a judge with no discretion, and only one path. That path, however, is not available for most defendants.

Now, the case may proceed to the Michigan Supreme Court for final resolution of this important issue. DNA identification is very compelling, yet very complex.

We Can Help

Our law firm has experience with putting on an expert witness for the defense. Also, we can effectively cross-examine a prosecution’s expert witness.

If you face major criminal charges, consider giving our law firm a call to discuss your options. We offer a free initial consultation. We can help with this tough situation.