Indigent defendant’s request for funding for an expert witness; People v Kennedy; Ake v Oklahoma; Showing needed to receive court-funded expert assistance; False-confession expert testimony; People v Kowalski; Ripeness; Department of Soc Servs v Emmanuel Baptist Preschool

The court held that the trial court misinterpreted Kowalski in denying defendant’s motion to fund an expert witness. “Kowalski did not amount to a categorical ban on all false-confession testimony.” The court also held that to obtain court-funded expert assistance, a defendant must show a reasonable probability that the proposed expert would help the “defense and whether the absence of that expert would result in a fundamentally unfair trial.” It concluded defendant here met his burden. Thus, it reversed the Court of Appeals judgment, which ruled that the trial court did not err in denying defendant’s request for funds for an expert, and remanded to the trial court to determine whether he “was indigent when he filed his motion. If” it finds that he was, “he is entitled to a new trial.” He was convicted of CSC I. He unsuccessfully sought funding for an expert in false confessions. The court found that while “the Court of Appeals correctly rejected the trial court’s interpretation of Kowalski, it erred in its analysis of what a defendant needs to prove to receive court-funded expert assistance.” The court noted that despite “the Court of Appeals’ contention, defendant is not required to show that he is unable to present his defense without expert assistance.” Similar to the defendants in Ake and Kennedy, defendant here “established that the veracity of his confession was a significant factor at trial. Defendant’s motion correctly anticipated that a major part of the prosecution’s case-in-chief would be defendant’s confession and sworn statements to the police. His confessions were the only corroborating evidence of the complainant’s allegations. Thus, a central focus of the defense was to cast doubt on his confessions. Defendant offered an expert in false confessions who could testify about the characteristics associated with false confessions and interviewer bias.” Further, the court noted that “the elements of a false confession are ‘beyond the understanding of the average juror . . . .’” It additionally found that the issue “of whether Kowalski and Kennedy were properly followed” was ripe. The actual issue before it “was whether the trial court abused its discretion when it denied defendant’s motion for expert funds. Thus, this appeal necessarily concerns both whether the trial court interpreted Kowalski correctly and whether the Court of Appeals interpreted Kennedy correctly.”

Dissenting in part, Justice Zahra (joined by Justice Viviano) found it was inappropriate for the majority “to decide the legal impact of defendant’s indigency while the existence of any such indigency is uncertain and hypothetical.” He also did not believe defendant sufficiently showed there was “a reasonable probability that an expert would be of assistance to his defense, nor can he show that his trial was fundamentally unfair without a state-funded expert witness.” Thus, he was not entitled to relief even if he was indigent. The dissenting justices would deny leave to appeal.