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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