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5 Dev. Mental Health L. 1 (1985)

handle is hein.journals/dvmnhlt5 and id is 1 raw text is: Ake v. Oklahoma: New Directions for Forensic Evaluation by W. Lawrence Fitch* In an opinion announced in Febru- ary, the United States Supreme Court ruled that an indigent criminal defend- ant is entitled to psychiatric assistance at the government's expense in at least two situations: (1) where the defendant makes a preliminary showing that his or her sanity at the time of the offense is likely to be a significant factor at trial and (2) where the defendant's mental condition is relevant to sentencing in a capital case, at least where the go- vernment produces psychiatric evi- dence of the defendant's future danger- ousness in support of the death penalty.' Ake v. Oklahoma, 53 U.S.LW 4179 (February 26, 1985). The assistance the Court said the defendant is due in these cases includes not only the opportunity for a clinical examination but also help in evaluating, preparing, and presenting a defense. Although the Court's opinion provides that the defendant has no right to select a clinician of his or her personal liking or to receive funds to retain such a clinician, the tenor of the opinion is that the indigent defendant is entitled to the kind of expert assistance he or she might expect from a clinician who was privately retained: broad-based assist- ance within the context of the attorney- client relationship. W*. Lawrence Fitch is Director of the Forensic Evaluation Training and Research Center at the Institute of Law, Psychiatry and Public Policy. In support of the proposition that providing this kind of expert assistance would entail no great financial burden for the states (and implying, perhaps, that extending the right to such assist- ance would require little or no change in law or practice in the majority of states), the Court noted that more that forty states already guarantee the crim- inal defendant the right to expert as- sistance under certain circumstances. What the Court failed to recognize, however, is that this guarantee, where it appears, typically is stated in some- what general terms as a feature of the defendant's broad statutory right to the assistance of counsel. In most states, procedures governing the provision of clinical assistance in cases in which the defendant's mental state is at issue are set forth in some detail in the law of criminal procedure, and these proce- dures often do not contemplate the kind of comprehensive, partisan assistance envisioned in Ake In many states, a defendant's request for clinical assistance on the sanity issue results in the appointment of a neutral expert to conduct an evaluation for the court. Copies of the evaluator's report are sent to the state's attorney, the defendant's attorney, and the court. While, of course, the defendant may call the evaluator as a witness at the trial, no right to consultation or other assist- ance is recognized. Whether such a procedure satisfies the requirements of Ake is highly doubtful. Continued on page 2 R Quarterly Publication of the Institute of Law, Psychiatry & Public Policy at the University of Virginia WA Developments In Mental Health Law Box 100, Blue Ridge Hospital, Charlottesville, VA 22901 (804) 924-5435 Vol. 5, Nos. 1-2 January-June 1985 Also in this issue... 7/ Virginia General Assembly - 1985 12/ Virginians with Disabilities Act 15/ Six United States Supreme Court Decisions 18/ Settlement of Poe v. Lynchburg 19/ The Mentally MD in Virginia's Jails

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