Ake v. Oklahoma Motion for Leave to File Brief of Amicus Curiae and Brief of Amicus Curiae American Psychological Association and Oklahoma Psychological Association in Support of Petitioner

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ALTERNATIVE STATEMENT 
OF

QUESTIONS PRESENTED

Amici believe tha t the questions presented by the facts 
of Ake v. State of Oklahoma are the following:

1. Does the Constitution require a  state to pay for 
a psychological evaluation of defendant’s state of 
mind a t the time of the offense where the defendant 
(1) is charged with a capital crime; (2) has pleaded 
insanity as his only defense; (3) has the burden of 
establishing a  reasonable doubt as to his sanity; (4) 
has been found by state mental health experts to be 
mentally ill, incompetent to stand trial, dangerous, 
and incapable of determining righ t from wrong, less 
than six months a fter the crime; and (5) is indigent?

2. Does the Constitution require a  state to pro­
vide an indigent defendant with the expert assistance 
necessary to cross examine and rebut expert testi­
mony regarding his future dangerousness presented 
by the state to support the death penalty?



I n  T h e

îtprmp (tfmtrl of %  luitpfc States
October T er m , 1983

No. 83-5424

Glen  Burton A r e ,

v.
Petitioner,

State  of Ok la ho m a ,
Respondent.

On Writ of Certiorari to the 
Oklahoma Court of Criminal Appeals

MOTION FOR LEAVE 
TO FILE BRIEF OF AMICI CURIAE 

AMERICAN PSYCHOLOGICAL ASSOCIATION 
AND

OKLAHOMA PSYCHOLOGICAL ASSOCIATION 
IN SUPPORT OF PETITIONER

Pursuant to Rule 36.3 of the Rules of this Court, the 
American Psychological Association (hereafter “APA” ) 
and the Oklahoma Psychological Association (hereafter 
“OPA” ) move for leave to file the attached brief amici 
curiae.

The reasons supporting the granting of this motion and 
the issues which amici are  uniquely qualified to address

(iii)



iv

are set forth in the statement of interest of amici in the 
attached brief.

The APA has filed amicus curiae briefs in Youngberg 
v. Romeo, 457 U.S. 307 (1982) (the rights of mentally 
retarded inm ates); Blue Shield v. McCready, 457 U.S. 
465 (1982) (the standing of an insured patient receiving 
psychotherapy to sue under the Clayton A c t); Mills v. 
Rogers, 457 U .S .291  (1982) fthe right o f a competent ~ 
committed mental patient to refuse psychotropic d ru g s); 
Metropolitan Edison Co. v. People Against Nuclear
Energy, ------  U.S. ------ , 103 S. Ct. 1556 (1983) (the
cognizability of psychological harm under the National En­
vironmental Policy A c t) ; City of Akron v. Akron Center
for Reproductive Health, In c .,------U .S .------- , 103 S. Ct.
2481 (1983) (abortion counseling by non-physicians);
and State o f New York v. Uplinger, ------  U.S. — - ,
------U.S.L.W .-------  (May 30, 1984) (deviant sexual con­
duct).

Petitioner has consented to the filing of this brief, and 
his letter is being filed with the clerk of this Court. Con­
sent was requested of respondent, but has been denied. 
Amici respectfully submit that they have important, rele­
vant expertise and information to contribute to the Court 
that will be useful in deciding this case, and that will 
not be provided by the parties.

Respectfully submitted,

Margaret F arrell E wing 
(Counsel of Record)

Donald N. Bersoff 
Bruce J. E n nis

E n nis, F riedman, Bersoff & E wing 
1200 Seventeenth Street, N.W. 
Washington, D.C. 20036 
(202) 775-8100 

Attorneys for Amici Curiae

June 2,1984

TABLE OF CONTENTS
Page

ALTERNATIVE STATEMENT OF QUESTIONS 
PRESENTED   — — — --------- ----- - — — -

MOTION FOR LEAVE TO FILE BRIEF OF AMICI
C U R IA E .........................     i»i

TABLE OF AUTHORITIES................  via

INTEREST OF AM IC I_________________________  1

SUMMARY OF ARGUMENT...............   3

ARGUMENT .....     6

I. DEFENDANT WAS CONSTITUTIONALLY 
ENTITLED TO A STATE FINANCED PSY­
CHOLOGICAL EVALUATION TO GIVE HIM 
AN ADEQUATE OPPORTUNITY TO SUP­
PORT HIS INSANITY PLEA---------------------- 6

A. Due Process Requires that a Defendant be 
Provided a Psychological Evaluation of his 
State of Mind at the Time of the Offense 
Where the Defendant (1) Is Charged With a 
Capital Offense; (2) Has Pleaded Insanity 
as his Only Defense; (3) Bears the Burden 
of Overcoming a State Imposed Presumption 
of Sanity; (4) Has Been Determined by 
State Experts and/or a State Court to be 
Mentally 111, Dangerous, Incompetent and 
Incapable of Telling Right from Wrong, Less 
Than Six Months After the Offense; and (5)
Is Indigent.......................................................... 6
1. The Constitution Requires the Highest 

Standards of Procedural Fairness in 
Capital Cases to Minimize the Possibility 
of Erroneous Determinations--------------  6

(v)



:

vi

TABLE OF CONTENTS—Continued

2. The Possibility of an Erroneous Deter­
mination of Criminal Responsibility Was 
Unacceptably High Where the Defendant 
Was Denied a Psychological Evaluation 
after He. Had Pleaded Insanity and State 
Experts Had Found Him Mentally III, 
Less Than Six Months After the Crime....

3. Having Created The Right To Plead
Insanity, Oklahoma Must Accord Due 
Process And Other Constitutional Guar­
antees to those Seeking to Exercise that 
R ight........... .................................................

B. The Information and Opinions Provided by 
Qualified Mental Health Professionals are 
Relevant and Useful to the Trier of Fact...
1. The Factfinder Can Profit from Expert

Testimony Regarding the Nature and 
Severity of Claimed Psychological Dys­
function and From Informed Estimates 
of the Defendants Knowledge, Percep­
tion and Motivation at a Given Time......

2. Professional Psychologists Are Qualified
to Provide Forensic Psychological Evalu­
ations and to Testify as Experts in Crim­
inal T rials...................................................

C. Requiring The State to Provide Indigent
Defendants a Psychological Evaluation 
Would Not Place an Unreasonable Procedural 
or Financial Burden on the State.................
1. The Procedure For Providing Indigent

Defendants An Expert Mental Health 
Evaluation Need Not be Burdensome......

2. The Cost of Providing Indigent Defend­
ants an Expert Mental Health Evaluation 
Would Not Be Unduly High.....................

vii

TABLE OF CONTENTS—Continued
Page

II. WHERE THE STATE HAS RELIED ON EX­
PERT PREDICTIONS OF DANGEROUSNESS 
TO ESTABLISH AGGRAVATING CIRCUM­
STANCES SUPPORTING THE DEATH PEN­
ALTY, IT MAY NOT DENY AN INDIGENT 
DEFENDANT THE ASSISTANCE OF A 
MENTAL HEALTH PROFESSIONAL TO 
EFFECTIVELY CROSS-EXAMINE AND RE­
BUT SUCH TESTIMONY ......... .........................  26

CONCLUSION 30



vm

&)&*»

TABLE OF AUTHORITIES
CASES: Page

Addington v. Texas, 441 U.S. 418 (1979)----- -----  9
Ake v. State, 663 P.2d 1 (Okla. Crim. App. 1983).. 8,9,

23,25
Barefoot v. Estelle, —•— U.S. — —, 61 U.S.L.W.

5189 (July 6, 1983)............................. ._................ ...passim
Blue Shieldf v. McCready, 457 If.S. 465 (1982)™.:.. 20
Boddie v. Connecticut, 401 U.S. 378 (1971) ...... _... 14
Bush v. McCollum, 231 F. Supp. 560 (N.D. Tex.

1964), affid, 344 F.2d 672 (6th Cir. 1965) ........ 9
California v. Ramos,------U .S .------- , 51 U.S.L.W.

5220 (1983) ............................................................. 26
Carter v. State, 376 P.2d 351 (Okla. Crim. App.

1962) .........................................................................  21
Drope v. Missouri, 420 U.S. 162 (1975)..... ...........  24
Eddings v. Oklahoma, 455 U.S. 104 (1982)............. 6, 27
Evans v. Bennett, 440 U.S. 1301 (1979).......... _... 7
Furman v. Georgia, 408 U.S. 238 (1972)................. 7
Gardner v. Florida, 430 U.S. 349 (1976)................  6
Gideon v. Wainioright, 372 U.S. 335 (1963)........... 14
Griffin v. Illinois, 351 U.S. 12 (1955).....................  14
Hidden v. Mutual Life Insurance Co., 217 F.2d

818 (4th Cir. 1954)................................................  21
Hovey v. EUiott, 167 U.S. 409 (1897) .................... 14
Jenkins v. United States, 307 F.2d 637 (D.C. Cir.

1962) (en banc) ...................................................... 21
Jurek v. Texas, 428 U.S. 262 (1976)........................... 27
Lockett v. Ohio, 438 U.S. 586 (1978).....................  6
Logan v. Zimmerman Brush Co., 455 U.S. 422

(1982) .... .................................................... - ...........  14
PASE v. Hannon, 506 F. Supp. 831 (N.D. 111.

1980)........       22
Parham v. J.R., 442 U.S. 584 (1979) ....................  29
Pate v. Robinson, 383 U.S. 375 (1966)......................  24
People v. Hawthorne, 293 Mich. 15, 291 N.W. 205

(1940)........................................................................  21
Powell v. Alabama, 287 U.S. 45 (1932)................... 6,14
Richardson v. State, 569 P.2d 1018 (Okla. Crim.

App. 1977) 9

ix
TABLE OF AUTHORITIES—Continued

Page
Rogers v. State, 634 P.2d 743 (Okla. Crim. App.

1981)  -  8,21
Smith v. Baldi, 844 U.S. 561 (1952)......................... 8,11
Springer v. Collins, 444 F. Supp. 1049 (D. Md.

1977) ................................... ............................ - .....-  9
Strickland v. Washington, ------  U.S. ------ , 62

U.S.L.W. 4565 (May 14, 1984)_______ _____ 7,14,26
United States v. Edwards, 488 F.2d 1154 (6th Cir.

1974) ....................................................................... -  9
Virginia Academy of Clinical Psychologists v. Blue 

Shield of Virginia, 624 F.2d 476 (4th Cir. 1980),
cert, denied, 450 U.S. 916 (1981 )...........— ....... 20

Wolff v. McDonnell, 418 U.S. 539 (1974) — ..... .. 14
Woodson v. North Carolina, 428 U.S. 280 (1976).... 7
Youngberg v. Romeo, 457 U.S. 307 (1982).„..........  9

UNITED STATES CONSTITUTION:
Sixth Amendment________________ _______—.9,10,14
Eighth Amendment ...................................— ........  28
Fourteenth Amendment ____________ ___- .......... passim

STATUTES AND REGULATIONS: 
Code of Federal Regulations:

Civilian Health and Medical Program of the Uni­
formed Services (CHAMPUS), 10 U.S.C. § 1071
etseq. (1976) ...........................................-...............  20

Comprehensive Employment and Training Act, 29
U.S.C. §§ 801 et seq. (1976).................... ...............  20

Disaster Relief Act, 42 U.S.C. § 5183 (1976)..... .. 20
Federal Employee Health Benefits Program, 5

U.S.C. § 8902(k) (1976)........................... ............. 20
Federal Employees Compensation Act, 5 U.S.C.

§8101(2) (1976)...... .................... .........................  20
Health Maintenance Organization Act, 42 U.S.C.

§ 300e-l (1976) ..... .......... .............. .........................  20
Veterans Health Care Expansion Act; 38 U.S.C.

§ 613(b) (1976)............................. ................ ......... 20
Vocational Rehabilitation Act, 29 U.S.C. § 723

(a)(1) (1976)............................................. .......... 20
29 C.F.R. § 94.4 (bb) (1978) ....................................... 20



X

TABLE OF AUTHORITIES—Continued
Page

32 C.F.R. § 199.12(c) (3) (iii) (a) (1981)------------  20
42 C.F.R. § 38.2(e) (1980)  --------- ---------- ---- —  20
42 C.F.R. §§ 110.101,110.104 (1980)     -... 20
21 Okla. Stat § 152 (1983) ....................................7 ,8 ,14
21 Okla. Stat §-701.10 (1983) .,__ _ 27
21 Okla. Stat § 701.12(7) (1983) ..-------------:------  27
22 Okla. Stat § 1175.2 (1983).............- ..................... 24
36 Okla. Stat § 2652 (1976).......................................  20
36 Okla. Stat § 6055 (1976)........................................ 20
59 Okla. Stat §§ 1351-1375 (1971).............. ............. 19
Rule 403, Fed. R. Evid. ...............................................  18
Rule 701, Fed. R. Evid........ ................- ..................—  18
Rule 703, Fed. R. Evid..................................................  17,18
Rule 704, Fed. R. Evid........ — ......— .......................  18

MISCELLANEOUS:
20 Am. Jur. 2d Evidence § 866.5 (1964)--------------  17
A merican Bar Association Standing Commit­

tee on Association Standards F or Criminal 
J ustice, F irst Tentative Draft Criminal J us­
tice Mental H ealth Standards, Section 7-3.3
(July 1983) ..........................................................10,15, 24

American P sychiatric Association, Diagnostic 
and Statistical Manual III (3rd ed. 1980).... 13

A. Anastasi, P sychological Testing (4th ed.
1976).............................. ...........................................  22

Annual Report of the  University of V irginia 
F orensic E valuation, Training and Research
Center (1982)........................................................  25

APA Criteria for Accreditation of Doctoral 
Training P rograms and I nternships (Jan.
1979) ........... - ............................................................ 1®

APA, E thical P rinciples of P sychologists, 36
Am . P sychol. 633 (1981)................   19

APA, Recognition and Reimbursement for
P sychological Services (1983).........................  20

APA, Standards for P roviders of P sychological 
Services, 32 Am . P sychol. 495 (1977).............. 19

xi

TABLE OF AUTHORITIES—Continued
Page

Bonnie and Slobogin, The Role of Mental Health 
Professionals in the Criminal Process: The Case 
for Informed Speculation, 66 Va. L. Rev. 427 
(1980) ______ :.......................................... 9,10,16,17, 21

Comment The Psychologist as an Expert Witness,
15 Kan . L. Rev. 88 ( 1 9 6 6 ) 2 1 - 2 2  

H. Davidson, F orensic P sychiatry 35 (2d ed.
1965) ....................................................................... -  16

Diamond & Louisell, The Psychiatrist as an Expert 
Witness; Some Ruminations and Speculations,
63 Mich . L. Rev. 1335 (1965)............................... 17

E ighth  Mental Measurements Yearbook (O.
Buros, ed. 1978) ......................................................  22

Ennis & Litwack, Psychiatry and the Presumption 
of Expertise: Flipping Coins in the Courtroom,
62 Calif. L. Rev. 693 (1974)................................  22,28

Ewing, Dr. Death and The Case for an Ethical Ban 
on Psychiatric and Psychological Predictions of 
Dangerousness in Capital Sentencing Cases, 8
A. J. Law & Med. 407 (1983) ..............................  28

S. F reud, Psycho-analysis and the Establishment 
of the Facts in Legal Proceedings, in 9 T h e  Com­
plete P sychological Works of Sigmund F reud 
103 (std. ed. J. Strachey 1959) (originally pub­
lished in 1906) ......................................................... 21

Gass, The Psychologist as Expert Witness, 38 Md.
L. REV. 539 (1979)............................................. 21, 22, 28

A. Goldstein, T h e  I nsanity Defense 19 (1967).. 16,18 
Hess, Entry Requirements for Professional Prac­

tice of Psychology, 32 Am . P sychol. 365 (1977).. 19
Kozol, Boucher & Garafolo, The Diagnosis and 

Treatment of Dangerousness, 18 Crime & DE­
LINQUENCY 371 (1971) .........................................  28

Lahman, L icensure Requirements for P sy­
chologists: USA and Canada (1978) ............  19

Lassen, The Psychologist as an Expert Witness in 
Assessing Mental Disease or Defect, 50 A.B.A. J.
239 (1964).................................................................  21



. ' fe$a

" ; {is»

xii

TABLE OF AUTHORITIES—Continued
Page

Levine, Psychologist as Expert Witness in "Psy­
chiatric’’ Questions, 20 Clev. St. L. Rev. 235
(1955)____________________________________ 21

Levitt, The Psychologist: A Neglected Legal Re­
source, 45 IND. L  J. 82 (1969) —........... . 21

Louisell, The Psychologist in Todayfs Legal World,
39 Min n . L. rev. 235 (1955) ...--------- ---------- 21

Model Penal Code §§ 2.04, 2.08 (Proposed Official
Draft, 1962) ________       10

Morse, Failed Explanations and Criminal Respon­
sibility: Experts and the Unconscious, 68 Va. L.
rev. 971 (1982).................................................-..... 22

Monahan, The Predictions of Violent Behavior; 
Developments in Psychology and Law, The 
Masters Lecture Series: Psychology and 
The Law 147 (Scheirer and Hammonds, ed.
1982)............................ ..............................................  28

H. Munsterberg, On the Witness Stand : Essays
on Psychology and Crime (1908).................... 21

Nash, Parameters and Distinctiveness of Psycho­
logical Testimony, 5 Prof. Psychol. 239
(1974)............................     21

Note, A Matter of Life and Death: Due Process 
Protection in Capital Clemency Proceedings, 90
Yale L. J. 889 (1981) ...........................................  6

Note, Psychologist’s Diagnosis Regarding Mental 
Disease or Defect Admissible on Issue of In­
sanity, 8 VILL. L. REV. 119 (1962)..................... 21

Pacht, Kuehn, Bassett & Nash, The Current Status 
of the Psychologist as an Expert Witness, 4
Prof. Psychol. 409 (1973) .........     21

Perlin, The Legal Status of the Psychologist in the 
Courtroom, in T he Role of the  Forensic Psy­
chologist 26 (G. Cooke, ed. 1980) ......................  21,22

Radin, Cruel Punishment and Respect for Persons:
Super Due Process For Death, 53 Cal. L. Rev.
1143 (1980) .......................................................    6

Rice, The Psychologist as Expert Witness, 16 Am.
Psychol. 691 (1961) .............................................  21

Xlll

TABLE OF AUTHORITIES—Continued
Page

Sadoff, Working with the Forensic Psychologist, in 
T h e  Role of th e  F orensic P sychologist 106
(G. Cooke, ed. 1980).........................................—  23

S. Saltzburg & K. Redden, F ederal Rules of
E vidence Manual 425 (2d ed. 1977)....---------  17

Steadman & Cocozza, Psychiatry, Dangerousness 
and the Repetitively Violent Offender, 69 J.
Crim . Law & Criminology 226 (1978)----------  28

Stigall, Licensing and Certification, in P rofes­
sional P sychologist's Handbook (B. Sales ed.,
1983)  -  19



Mo*.Wr9V '!■•?’*{&& stt*

I n T he

^uprattP (ttmtrt of tljr Ittitpb Stall's
October Term , 1983

No. 83-5424

Glen  Burton A r e ,

v.
Petitioner,

State of Oklahoma,
Respondent.

On Writ of Certiorari to the 
Oklahoma Court of Criminal Appeals

BRIEF OF AMICI CURIAE 
AMERICAN PSYCHOLOGICAL ASSOCIATION

AND
OKLAHOMA PSYCHOLOGICAL ASSOCIATION 

IN SUPPORT OF PETITIONER

INTEREST OF AMICI

The American Psychological Association (APA), a non­
profit scientific and professional organization founded in 
1892, is the major association of psychologists in the 
United States. The APA has more than 55,000 members 
and includes the vast m ajority of psychologists holding 
doctoral degrees from accredited universities in the 
United States.



2

A substantial number of APA’s members are concerned 
with clinical and forensic psychology, including the col­
lection of data, development of research, and evaluation 
of the state of mind of criminal offenders.

The Oklahoma Psychological Association (OPA) is a 
nonprofit, scientific, and professional organization that 
was founded in -1946 for the purpose of advancingHshe 
science and profession of psychology and to promote hu­
man welfare. I t represents the majority of psychologists 
in Oklahoma and is affiliated formally with the APA.

Psychologists in Oklahoma come from accredited uni­
versities across the United States. Their work encom­
passes basic and applied research, teaching, and a myriad 
of mental health services to hospitals, courts, clinics, 
schools, and the community a t large. Many of Oklahoma’s 
psychologists offer expert testimony in court proceedings 
where the person’s mental or emotional state is an issue. 
An even larger number are involved in the study, diag­
nosis, and treatment of mental and emotional disorders 
and the effects of such disorders on human behavior. 
In this way, Oklahoma psychologists, like psychologists 
nationally, bring unique qualifications to m atters bear­
ing on the case at hand. Because this case originated in 
Oklahoma, and because Oklahoma psychologists are com­
mitted to the promotion of public welfare, OPA, repre­
senting psychology in Oklahoma, joins the APA as co- 
amicus.

Amici wish to specify that they have no direct knowl­
edge of the guilt, innocence, sanity, or insanity of the 
defendant in this case, and tha t they in no way, implied 
or otherwise, condone the heinous nature of the crimes 
involved. Their interest as amici is in providing informa­
tion which it  is hoped will be helpful to the Court in its 
consideration of the questions being addressed.

The APA contributes amicus briefs to this Court only 
where the APA has special knowledge to share with the

3

Court. The APA regards this as one of those cases. In 
this instance, the APA and OPA wish to inform the 
Court about the nature of psychological evaluations and 
the need for and uses of expert testimony in insanity de­
fense proceedings. APA and OPA believe that this in­
formation will be of assistance to the Court in deciding 
this cas6. — ~

SUMMARY OP ARGUMENT

This case presents the Court with an important but 
narrow question. I t  is whether due process or other con­
stitutional guarantees require the state of Oklahoma to 
provide defendant Ake with the means of securing an 
expert psychological evaluation of his state of mind a t the 
time he committed the offense, so that he will have an 
adequate opportunity to support his claim of insanity and 
so tha t he can rebut testimony about aggravating cir­
cumstances presented by state experts. The only question 
posed by the facts of this case is whether a defendant is 
entitled to such an evaluation when he is indigent, is 
charged with a  capital crime, has pleaded insanity as his 
only defense, bears the burden of overcoming a state 
imposed presumption of sanity, and has been determined 
by state experts and/or a  state court to be mentally ill, 
dangerous, incompetent to stand trial, in need of psy­
chiatric treatment, and incapable of determining right 
from wrong, less than six months after committing the 
offense. Amici respectfullly suggest tha t this Court need 
not determine which of these circumstances is either 
necessary or sufficient for such a requirement, but only 
tha t all these factors together w arrant imposing on the 
state the minimal procedural and financial burden of 
paying for the psychological evaluation and assistance 
requested.

The Court has long recognized the special nature of 
capital cases and has interpreted the Constitution to 
require adherence to the highest standards of procedural 
fairness to minimize the possibility in such cases of er-



4

( <

roneous determinations of criminal responsibility and ex­
cessive punishments. In this case, there is no doubt tha t 
the defendant committed the heinous offenses with which 
he is charged. However, there is serious question whether 
the defendant had sufficient understanding of the wrong­
fulness of his offenses to be criminally responsible for  
them under the laws of Oklahoma. A m ia-subm it th a t 
fundamental fairness requires the state to provide de­
fendant Ake an adequate opportunity to establish his in­
sanity defense.

In this case, the insanity defense was Ake’s only de­
fense. In Oklahoma, the insanity defense is unlike other 
defenses, in tha t it is an affirmative defense, requiring 
the defendant to come forward with evidence creating a 
reasonable doubt about his sanity a t the time of the of­
fense before the prosecution is required to prove the de­
fendant’s sanity. Defendant was unable to sustain that 
burden without a psychological evaluation. More im­
portant, less than six months after the offense, Ake had 
been determined by state experts and by a state court to 
be mentally ill and incompetent to stand trial. Amici 
believe these findings indicate an unacceptably high risk 
of an erroneous determination in this case tha t defendant 
was sane a t the time of the offense, unless the trie r of 
fact has the benefit of information which would be pro­
vided by a  psychological evaluation.

Amici submit that appropriate psychological evalua­
tions provide relevant and probative information and 
opinions long recognized as admissible under federal and 
state rules of evidence. Although lay witnesses can also 
testify as to relevant facts and give their opinions about 
a defendant’s sanity, the detection and diagnosis of men­
tal disorders and the assessment of facts relevant to 
mental processes is recognized to be well beyond the com­
petence of most lay people. Amici believe that the mini-

5

mal procedural burden, delay and expense required to 
provide indigent, mentally ill defendants in capital cases 
with psychological evaluations performed by qualified 
mental health professionals to support their only defense 
to the charges against them is a small price to pay to 
maintain the integrity of our criminal process.

In^ addition, this Court has consistently held that where 
a state creates a right, such as the right to plead insanity, 
the state may not be arb itrary  in the recognition of the 
r ig h t Amici believe that to deny defendant an adequate 
opportunity to support his plea of insanity, solely because 
of his indigency, was to arbitrarily  and effectively de­
prive defendant of the benefit of the insanity defense 
in violation of due process of law and other constitutional 
guarantees.

Finally, amici agree with the weight of professional 
opinion tha t mental health experts have substantially less 
ability to predict future behavior than they do to assess 
current or past mental conditions. Knowing this opinion,
this Court nevertheless held in Barefoot v. Estelle, ------
U .S .------ , 51 U.S.L.W. 5189 (1983), that expert predic­
tions of dangerousness are admissible, even if unreliable, 
because such testimony will be submitted to cross-examina­
tion and rebuttal before it is weighed by the jury. In 
the present case, the state relied on the testimony of two 
state psychiatrists tha t defendant is likely to be danger­
ous in the future to support its request for the death 
penalty. But the state denied defendant the means to 
effectively cross-examine or rebut such testimony. The 
rationale of Barefoot surely requires tha t where the state 
presents such unreliable testimony, the defendant must 
be provided the means to challenge it.

Amici urge the Court to reverse the holding of the 
Oklahoma Court of Criminal Appeals and to remand this 
case for a new trial.



:**:*<• i

6
ARGUMENT

I. DEFENDANT WAS CONSTITUTIONALLY ENTI­
TLED TO A STATE FINANCED PSYCHOLOGICAL 
EVALUATION TO GIVE HIM AN ADEQUATE OP­
PORTUNITY TO SUPPORT HIS INSANITY PLEA.
A. Due Process Requires that a Defendant be Pro­

vided a Psychological Evaluation of his State of 
Mind at the Time of the Offense Where the Defend­
ant (1) Is Charged With a Capital Offense; (2) Has 
Pleaded Insanity as his Only Defense; (3) Bears 
the Burden of Overcoming a State Imposed Pre­
sumption of Sanity; (4) Has Been Determined by 
State Experts and/or a State Court to be Men­
tally 111, Dangerous, Incompetent and Incapable of 
Telling Right from Wrong, Less Than Six Months 
After the Offense; and (5) Is Indigent.
1. The Constitution Requires the Highest Stand­

ards of Procedural Fairness in Capital Cases to 
Minimize the Possibility of Erroneous Deter­
minations.

At least since 1932, when Powell v. Alabama, 287 U.S. 
45, 71 (1932) was decided, this Court has consistently 
ruled that “death is different,” and tha t the profound 
difference between death and all other punishments gives 
rise to a corresponding difference in the procedural re­
quirements that must be met before a sentence of death 
can be imposed. This rule is firmly established.1 Indeed, 
either in a majority opinion, plurality opinion, concurring 
opinion, or dissent, every member of this Court has ac­
knowledged that death is different, and tha t capital cases 
require heightened procedural protections.*

1 See generally, Not©, A Matter of Life and Dealth: Due Process 
Protection in Capital Clemency Proceedings, 90 YALE L. J. 889, a t 
889-890 and 902-903 (1981); and Radin, Cruel Punishment and 
Respect for Persons: Super Due Process For Death, 53 Cal. L. 
Rev. 1143 (1980); and the cases and authorities cited therein.

2 See Eddings v. Oklahoma, 455 U.S. 104 (1982) (O’Connor, J.) ; 
Gardner v. Florida, 430 U.S. 349, 357-358 (1976) (Stevens, J.), 
and 363-364 (White, J . ) ; Lockett v. Ohio, 438 U.S. 586, 605 (1978)

7

In this case, the possibility for error in determining 
defendant Ake’s criminal responsibility for the admitted 
homicides increased when the trial court refused to pro­
vide the defendant with a psychological evaluation of his 
state of mind a t the time he committed the offense. There 
was no expert testimony of any kind concerning the de­
fendant's state of mind a t the time he committed the 
offense and whether he was capable of knowing the 
wrongfulness of his act a t that time.*

W ithout testimony by expert witnesses, the ju ry  was 
left to its own speculation as to Ake’s state of mind. No 
witness experienced in assessing factual data related to 
mental conditions, motivation, and perception, provided 
the jury  with informed opinion as to whether the de­
fendant’s actions a t the time of the murders were con­
sistent with an understanding of the wrongfulness of his 
conduct Nor was there any expert testimony regard­
ing the effect of drugs and alcohol on his mental processes 
or his likely perception of the situation in which the 
murders were committed.

(Burger, C. J . ) ; Woodson v. North Carolina, 428 U.S. 280, 305 
(1976) (Powell & Stevens, J J .) ,  and 823 (Rehnquiat, J . ) ; Furman 
v. Georgia, 408 U.S. 238, 286-91 (1972) (Brennan, J .), and 358-360 
(Marshall, J . ) ; Evans v. Bennett, 440 U.S. 1301, 1306 (1979)
(Rehnquist, Circuit Justice); Barefoot v. Estelle,-----  U .S .------,
51 U.S.L.W. 6189, 5198 (1983) (Marshall & Brennan, J.J.), 5202 
(Blackmun, Brennan & Marshall, J .J .) ; and Strickland v. Wash­
ington, ----- U .S.-------. 62 U.S.L.W. 4565, 4570 (1984) (O’Connor,
J.), 4575 (Brennan, J .), and 4578 (Marshall, J.).

* Under Oklahoma law, culpability does not attach to the commis­
sion of an. offense where the perpetrator a t the time of the offense 
was "incapable of knowing" the wrongfulness of the act he com­
mitted. Okla. Stat. t i t  21, i§ 152 (1983). Each of the three experts 
who interviewed Ake prior to his trial testified that he had not been 
asked to evaluate Ake’s state of mind a t the time of the offense, 
had not done so, and therefore had no opinion on that issue.



8
2. The Possibility of an Erroneous Determination 

of Criminal Responsibility JVaa Unacceptably 
High Where the Defendant Was Denied a Psycho­
logical Evaluation after He Had Pleaded In­
sanity and State Experts Had Found Him Men­
tally III, Less Than Six Months After the Crime.

This is not a  case in which a defendant asked for a 
court-appointed psychological evaluation for the purpose 
of determining whether to plead an insanity defense. 
Nor is it a case in which the defendant rejected the 
evaluation of a  court-appointed expert and sought an 
expert of his own choosing. See Sm ith v. Baldi, 344 U.S. 
561 (1952). Whether the Constitution requires the pro­
vision of state financed evaluations to indigent defend­
ants in such situations are questions for another day. 
In this case, the question is whether the state must pro­
vide a psychological evaluation where the defendant has 
already entered an insanity plea, is indigent and has 
asked the court to appoint an expert selected by the court.

An expert psychological evaluation was necessary in 
this case to assist the defendant to overcome the pre­
sumption of sanity imposed by the state. In Oklahoma, 
as in many other jurisdictions, insanity is an affirmative 
defense. The defendant bears the burden of overcoming 
a presumption of sanity by producing sufficient evidence 
to raise a reasonable doubt as to his sanity a t the time 
of the offense.4 Only if he meets this burden must the

* Okla, Stat. t i t  21, § 1B2 (1983) provides that *‘[a]ll persons 
are capable of committing crimes, except those belonging to 
the following classes . . .  (4) Lunatics, insane persons and all per­
sons of unsound mind, including persons temporarily or partially 
deprived of reason, upon proof that a t  the time of committing the 
act charged against them, they were incapable of knowing its wrong- 
fulness." The Oklahoma Court of Criminal Appeals has determined 
that “ [i]n every case there is an initial presumption of sanity. 
This presumption remains until the defendant raises, by sufficient 
evidence, a reasonable doubt as to his sanity a t the time of the 
crime. If  the issue is so raised, the burden of proving the defend­
ant’s sanity beyond a reasonable doubt falls upon the State." Ake 
v. State, 663 P.2d 1, 10 (Okla. Crim. App. 1983); Rogers v. State,

9
prosecution prove his sanity beyond a reasonable doubt 
Therefore, access to expert psychological testimony is par­
ticularly im portant In fact, an expert psychological eval­
u a tio n  may in many cases, like the one a t bar, be the 
only evidence sufficient to meet this burden. The denial 
of an evaluation in such a case, then, would relieve the 
state of the burden of putting on any evidence of de­
fendant’s sanity and the burden of proving beyond a 
reasonable doubt tha t the defendant was sane.

As this Court has recognized in other contexts, expert 
psychological assessments of mental conditions are of 
considerable probative value, and in some situations are 
indispensible. Addington v. Texas, 441 U.S. 418 (1979) 
(civil commitment of adu lts); Parham v. J.R., 442 U.S. 
584 (1979) (civil commitment of children); Youngberg 
v. Romeo, 457 U.S. 307 (1982) (right to habilitation as 
incident to right to safety and freedom from harm ). 
Some lower federal courts and state courts have recog­
nized th a t the value of information elicited through psy­
chological evaluations is so relevant and probative in 
some situations that failure to secure it amounts to in­
effective assistance of counsel in violation of the Sixth 
Amendment. See, e.g., Bush v. McCollum, 231 F. Supp. 
660, 565 (N.D. Tex. 1964), aff’d, 344 F.2d 672 (5th 
Cir. 1965); United States v. Edwards, 488 F.2d 1154, 
1163 (5th Cir. 1974) (stressing the “particularly criti­
cal interrelation between expert psychiatric assistance 
and minimally effective representation of counsel” ) ; and 
Springer v. Collins, 444 F. Supp. 1049 (D. Md. 1977).

In addition, the statutory laws of many states provide 
defendants with an evaluation on the issues of criminal 
responsibility and/or competence to stand trial.* Recently,

634 P.2d 743 (Okla. Crim. App. 1981); Richardson v. State, 669 
p.2d 1018 (Okla. Crim. App. 1977). Brief for the Petitioner, Ake v. 
State, note 17, No. 83-5424, U.S. S. Ct.

« Bonnie and Slobogin, The Role of Mental Health Professionals 
in the Criminal Process: The Case for Informed Speculation, VA. 
L. Rev. 427 (1980).



<Vs«l

1”:'-

10
the American Bar Association’s Standing Committee on 
Association Standards for Criminal Justice recommended 
in its D raft Criminal Justice Mental Health Standards 
that

The accused’s Sixth Amendment right to effective 
assistance of counsel justifies the use of a mental 
health o r mental retardation professional consultant 
whenever the defense attorney honestly believes tha t 
the professional’s aid could support a defense claim. 
For example, in virtually every homicide case, mental 
states are so important that the assistance of a 
mental health or mental retardation professional is 
warranted. A merican Bar Association Standing 
Committee on Association Standards For Crimi­
nal Justice, F irst Tentative Draft Criminal 
Justice Mental Health Standards, Section 7-3.3, 
Commentary (July 1983) (hereafter “ABA D raft 
Standards” ).*

These decisions, statutes, and standards are based on 
the underlying conviction that mental health professionals 
have information and opinions about mental processes 
that are both relevant and helpful to the trie r of fact in 
criminal cases. This is particularly true with regard to 
the increasingly important subjective elements of crime, 
such as m em  rea, diminished capacity, intoxication, and 
insanity. See generally, Bonnie, supra note 6; Model 
Penal Code §§ 2.04, 2.08 (Proposed Official Draft, 1962). 
Under Oklahoma law lay witnesses can give their opinion 
of a defendant’s sanity if they have a reasonable basis 
upon which to do so. However, in reality, i t  is so unusual 
for a defendant pleading insanity not to support his plea 
with expert testimony that even if defendant Ake had put 
on lay witnesses, the absence of expert testimony could 
itself have been highly prejudicial.

The importance of psyschological evidence on subjective 
elements of criminal responsibility is well stated by

• The draft has not been approved by the House of Delegates or 
Board of Governors of the ABA, and is not the official policy of
Hi a ARA

l i

Justice F rankfurter in his dissent in Spiith v. Baffle, in 
which he would have upheld the due process right of a 
defendant in a capital case to a psychological evaluation 
by an expert of his choice, in addition to the one provided 
by the court

I t  is not for this Court to find a w ant of due process 
in a conviction for m urder sustained by the highest 
court of the State merely because a finding that the 
defendant is sane may raise gravest doubts. But it 
is our duty under the Fourteenth Amendment to 
scrutinize the procedure by which the plea of in­
sanity failed and the defendant’s life became forfeit 
A denial of adequate opportunity to sustain the plea 
of im anity  is a denial of the safeguard of due proc­
ess in its historical procedural sense which is within 
the incontrovertible scope of the Due Process Clause 
of the Fourteenth Amendment. (Emphasis added)

344 U.S. 561, 570-571 (1952).T
Because defendant Ake was required to raise a  doubt 

about his sanity without the benefit of such relevant and 
probative evaluation, the risk that the ju ry  would errone­
ously find Ake sane was very great. Amici contend it 
was too great to comport with due process.

Whether an indigent defendant in a  capital case is 
automatically entitled to the appointment of a psychologi­
cal expert when he requests one, without any threshold 
showing of relevance or necessity, is not a question before 
this Court. In the case a t bar, when the defendant re­
quested a psychological expert, he had already pleaded 
the insanity defense and had been found by state selected 
experts and by a state court to be mentally ill and in­
competent to stand tria l only a short time after the 
offense took place.

* The majority in Smith v. Baldi found that where, unlike the 
case at hand, the court had ordered a psychological evaluation of 
the defendant’s state of mind at the time of the offense, the defend­
ant was not entitled to an additional evaluation. No examination 
or evaluation of the defendant Ake’s state of mind at the time of 
the offense was made in this case.



S*3t

yr̂ -r

12
The homicides occurred on October 15, 1979, and the 

defendant was apprehended in November. His behavior 
a t arraignm ent in February 1980 was so bizarre that 
the court sua sponte appointed a psychiatrist to examine 
him in order to determine his competence to stand trial. 
Dr William L. Allen examined the defendant on Febru­
ary 22 to determine his present competence, and un­
certain as to the proper determination, requested th a t the 
defendant be transferred to a state hospital for observa­
tion and testing. The trial judge ordered ^  transfer 
on March 5, and defendant remained hospitalized until 
May. On April 1, 1981, Dr. R. D. Garcia, Chief Forensic 
Psychiatrist a t the state hospital, reported to the court 
tha t in his opinion, the defendant was incompetent to
stand trial.

On April 10, 1980, the tria l judge conducted a special 
hearing on defendant’s competence. A t tha t h e am g  r. 
Garcia and Dr. Allen concurred that the defendant was 
mentally ill, incompetent to stand trial, and dangerous. 
In  addition, Dr. Allen testified tha t the defendant did not 
currently have the capacity to determine right from 
wrong or to appreciate the wrongfulness of his actions. 
Based on tha t testimony, the Court found defendant Ake 
to be mentally ill and in need of treatm ent and recom­
mitted him to the state hospital. On May 22, Dr. Garcia 
reported th a t the defendant was taking 600 mg. of Tho­
razine each day and was competent to stand trial so 
long as he continued to take the medication. Criminal 
proceedings were reinstated on May 27, 1980.

A t the pretrial conference on June 13, defendant’s a t­
torney requested tha t the court appoint a psychological 
expert (to be selected by the court) to assist him in 
presenting his insanity defense, or to provide the de­
fendant with funds to obtain such assistance. The trial 
court reluctantly denied this request for state assistance, 
on the ground th a t such assistance was not authorized by 
state law. Thus, the trial court was fully informed about

13

state of mind a t the time of his offense, thei defendant’s 
desire to obtain such an evaluation, and his financial
inability to do so.

I t  is difficult to imagine a more compelling case for the
right to a court^appointed psychological expert. The de­
fendant had confessed to a horrible offense committed 
immediately; after losing his girlfriend and t^mmafaon 
of his employment. He had taken a large 
drugs and alcohol at the time of the offense an d had  
acted irrationally immediately after the crime in using 
a credit card issued in the name of the woman he had 
just murdered to finance his escape. Furthermore, w it­
nesses had testified that the defendant had had a troubled 
childhood and a father who had physically abused him.

Most compelling of all, within six months of the crimes, 
when he finally received profession  eval«atmns the 
defendant was found by state psychiatrists to be suffer 
incr from a psychotic condition diagnosed as paranoid 
schizophrenia” (more accurately, schizophrenic reaction, 
paranoid type).* Furthermore, he was found »n»mpetent 
to assist in his defense and was determined by a t least 
one psychiatrist to be unable, a t the time of ev^ at‘on; 
to determine right from wrong. Only after he bad been 
taking Thorazine for a period of weeks was he foun 
sufficiently competent to be tried.

This evidence certainly supports an inference th a t a t 
the time of his crime the defendant may also have been 
psychotic and unable to understand the difference be­
tween right and wrong. In this case, the risk was very 
great that, without the benefit of a psychological evalua­
tion and expert opinion concerning the defendant s state 

when ho committed the homicides, the jury  would

•  AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATIS­

TICAL M a n u a l  III (3rd ed. 1980).



14
3. Having Created The Right To Plead Insanity, 

Oklahoma Must Accord Due Process And Other 
Constitutional Guarantees to those Seeking to 
Exercise that Right.

Although the Constitution has not been interpreted by 
this Court to prohibit criminal punishment of the insane, 
Oklahoma, like most other states, provides by statute that 
persons insane a t the time of the offense will not be 
criminally punished. Okla. Stat. t i t  21, § 152 (1983). 
Having created this right, the state may not be arb itrary  
in the implementation of it* Amici contend tha t by re­
fusing to provide defendant with a psychological evalua­
tion, the state effectively denied defendant the defense of 
insanity solely by reason of his indigency; and tha t such 
denial in this case was arbitrary  and prohibited by due 
process and other constitutional guarantees.

Although this point is discussed in more detail in the 
brief of petitioner Ake, amici agree that denial of expert 
assistance because of indigency, a t least in the circum­
stances of this case, violates those constitutional guaran­
tees.10

r.-*«

*E.g., Logan v. Zimmerman Brush Co., 456 U.S. 422, 428-438 
(1982); Wolff v. McDonnell, 418 U.S. 639, 658 (1974); Griffin v. 
Illinois, 351 U.S. 12, 18 (1955). Cf. Boddie v. Connecticut, 401 
U.S. 378 (1971); Hovey v. Elliott, 167 U.S. 409 (1897). Defendant 
Ake’s interest in life is surely as protected by due process as the 
property and liberty interests involved in these cases.

10 This Court has made it clear that whether required by due 
process, equal protection, or the Sixth Amendment guarantee of 
effective assistance of counsel, the essentials of a fair trial may not 
be denied solely because of defendant’s poverty. Strickland v.
Washington, ------ U.S. ------, 52 U.S.L.W. 4565 (May 14, 1984);
Gideon v. Wainwright, 872 U.S. 335 (1963); Griffin v. Illinois, 351 
U.S. 12 (1955); Powell v. Alabama, 287 U.S. 45 (1932).

The American Bar Association’s Standing Committee on the As­
sociation Standards for Criminal Justice has recommended that: 

The right to defend oneself against criminal charges includes 
an adequate opportunity to explore, through a defense- 
initiated mental evaluation, the availability of any defense to

15

B. The Information and Opinions Provided by Quali­
fied Mental Health Professionals are Relevant and 
Useful to the Trier of Fact.
1. The Factfinder Can Profit from Expert Testi­

mony Regarding the Nature and Severity of 
Claimed Psychological Dysfunction and From 
Informed Estimates of the Defendants Knowl­
edge, Perception and Motivation a t a Given 
Time.

Experience with the application of the insanity defense 
and with individualized sentencing has yielded some con­
clusions about the appropriate role of mental health ex­
pertise in the criminal process. I t  is true th a t the term 
“insanity” for the purposes of criminal exculpation is a 
legal and moral term, not a medical one, and it  must be 
applied by the legal trie r of fact, not by a technical ex­
pert. Nevertheless, experts play an im portant role in the 
fact finding process by informing the ultimate decision­
maker about psychological processes in general, and those 
of the accused in particular.

Mental health professionals use a multitude of tests 
and techniques to contribute three types of useful in­
formation to the tr ie r of fact in criminal cases. First, 
trained mental health professionals can gather facts con-

the existence or grade of criminal liability relating to defend­
ant’s mental condition a t the time of the alleged crime. Ac­
cordingly, each jurisdiction should make available funds in a 
reasonable amount to pay for a  mental evaluation by a qualified 
mental health or mental retardation professional selected by 
defendant in any case involving a defendant financially unable 
to afford such an evaluation.

ABA Draft Standards, supra, note 6 and accompanying text. Ex­
plaining its position the Committee stated:

The indigent defendant’s need for mental health and mental 
retardation professional assistance are as great as those of 
wealthy defendants. Paragraph (a) establishes the indigent 
defendant’s right to obtain this professional assistance a t pub­
lic expense. ABA Draft Standards, supra note 6 and accom­
panying text, Section 7-3.3 Commentary.



WU*-***̂  *&& ;•&£!» ê r**c.r̂ »i

i

i
jii

16
cerning the relationship between the defendant's claimed 
psychological dysfunction and his behavior which a lay 
person might not notice or regard as significant. For 
instance, a defendant who suffered from acute psycho­
logical aberration a t the time of an offense will not neces­
sarily display to the ju ry  the symptoms of th a t aber­
ration, e.g., delusions, hallucinations, disorientation, 
assaultive behavior or extreme withdrawal.11 Yet in­
formation about those phenomena can be obtained by a 
trained professional. Even if the lay person can recog­
nize in the defendant signs of cognitive or emotional 
disturbance, professional training or experience often 
may be required to elicit more detailed information.1*

Factual data can be gathered by mental health pro­
fessionals in several ways. Professional interviews w ith 
the defendant are, of course, essential.1* In addition^ 
most clinicians will try  to obtain from other people and 
from written records additional information about the' 
alleged offense, the subject’s previous antisocial behavior, 
his general history, and relevant medical and psycho­
logical history. This information is used to verify in* 
formation obtained from the accused on these subjects 
and to obtain information unknown to him.

The second kind of information the mental health pro­
fessional can provide the factfinder is an explanation of 
the defendant's mental condition which takes into ac­
count the factual information and symptoms observed. 
By offering the trie r of fact “clinically reasonable" possi­
bilities and alternative explanations of the facts, the ex­
pert provides a framework within which to assemble 
otherwise unrelated pieces of information. These explana­
tions put family, psychological, medical and personal 
history together into a coherent whole. As one com­
mentator has noted “ [i]f  the clinician were not allowed

11 A. Goldstein, The Insanitt Defense 25-26 (1967).

11 Bonnie, supra note 5, a t 459.
»*H. Davidson. F orensic P sychiatry 85-62 (2d ed. 1965).

17

to express any inferences or opinions concerning his ob­
servations, the factfinder would be left with fragments 
of data that may actually confuse rather than en­
lighten.” 14 Although some observers fear that juries will 
place too much confidence in the “scientific" nature of 
expert testimony and will defer too much to expert opin­
ion, others believe that lay persons are naturally skeptical 
of psychiatric explanations and will weigh expert testi­
mony carefully.1*

Under the common law, expert testimony based on 
third party  hearsay information was held to be inadmis­
sible.1* However, there has been a trend toward relaxa-. 
tion of this restriction. Rule 703 of the Federal Rules 
of Evidence now provides that the facts or data upon 
which an expert bases an opinion need not be admissible 
“if of a type reasonably relied upon by experts in the 
particular field in forming opinions or inferences upon 
the subject.” S. Saltzburg & K. Redden, Federal Rules 
of Evidence Manual 425 (2d ed. 1977). The admission 
of expert opinions based on hearsay evidence is premised 
on the belief that mental health professionals are aware 
of the biased and self-serving nature of some of the in­
formation they receive, and tha t they are trained to 
assimilate information from a wide variety of sources, 
to evaluate each fact, to discount some facts and empha­
size others, to make their own personal observations and 
to come to a conclusion.17 Thus, opinion testimony offered

14 Bonnie, supra note 5, a t 491.
i* “Because laymen do not deal with abnormal behavior on a  day 

to day basis, their intuitions are skewed in the direction of norma] 
behavior, and they favor commonsense explanations for departures 
from the norm. Mental health professionals, on the other hand, deal 
constantly with abnormal behavior and are trained to consider 
explanations that do not proceed from commonsense analysis." 
Bonnie, supra note 5, a t 485.

14 20 Am. Jur. 2d Evidence, § 866.5 (1964); Diamond & Louisell, 
The Psychiatrist as an Expert Witness; Some Ruminations and 
Speculations, 63 Mich. L. Rev. 1335,1351-52 (1965).

17 Diamond & Louisell, supra note 16, at 1353.



18/

by psychologists and psychiatrists is generally admissible 
under the Federal Rules of Evidence and the laws of 
Oklahoma. ^

Finally, mental health experts can present hypotheses 
of how the defendant’s psychological dysfunction, if  one 
is found, might have affected the specific conduct in­
volved in his offense. Increasingly,., courts and com­
mentators agree that to exclude such professional opin­
ions and explanations of aberrant psychological function­
ing would be to exclude an important source of insight 
and informed opinion and would both prejudice the de­
fendant and confuse the factfinder.1* See also Federal 
Rule of Evidence 704.1*

2. Professional Psychologists A re Qualified to  Pro­
vide Forensic Psychological Evaluations and to  
T estify  as E xperts in Criminal Trials.

Amici believe that the defendant in this case was en­
titled to a psychological evaluation of his state of mind 
at the time of the offense by a qualified mental health 
expert, and tha t professional psychologists are such quali­
fied experts. Psychologists, by virtue of their training 
and experience, the strict evaluation of their credentials 
by state licensing authorities, and their participation as 
independent providers of mental health services in fed­
eral, state, and private third-party reimbursement plans, 
are recognized as fully qualified to assess and diagnose 
mental disability and to testify as expert witnesses on 
general issues such as the reliability of psychological 
findings, and on the mental condition of a particular 
person a t the present or in the past.

The minimum level of training required for recognition 
as an independent professional psychologist is the doctoral

“ A. Goldstein, T he  I nsanity Defense 19 (1967).
1# F ed. R. E vid. 704 states: “Testimony in the form of an opinion 

or inference otherwise admissible is not objectionable because it 
embraces an ultimate issue to be decided by the trier of fac t” See 
also, id., Advisory Committee’s Notes, F ed. R. E vid. 403, 701, 703.

19

degree,90 which usually requires four to five years of 
didactic and field placement experience, with approxi­
mately three years devoted to coursework, one year to a 
full time supervised internship a t a clinic, hospital, or 
other training center, and the completion of dissertation 
research.*1

To offer services, including evaluations and diagnosis, 
to the public for a fee as an independent practitioner, 
all 51 jurisdictions, including Oklahoma, Okla. Stat. t i t  
59, § 1351-1375 (1979), require psychologists to be li- 
sensed or certified.** To further ensure a high quality of 
professional practice, many states have adopted ethical 
codes identical or quite similar to the APA’s Ethical 
Principles of Psychologists, 36 A m . P sychol. 633 (1981). 
E.g., Okla. Stat. t i t  59, § 1361 (1975). The Ethical 
Principles deal with a variety of professional and scien­
tific issues and mandate that psychologists practice only 
within their areas of expertise and seek consultation 
when necessary.

Recognition of both psychologists and psychiatrists as 
independent professionals providing mental health serv-

20 APA, Standards for Providers of Psychological Services, 82 
Am. Psychol. 495 (1977); Hess, Entry Requirements for Profes­
sional Practice of Psychology, 32 Am. PSYCHOL. 365 (1977).

21 The basic training model of doctoral programs in professional 
psychology is the scientist-professional model, i.e., the teaching of 
the basic science and methods of psychology combined with the 
theory and techniques of clinical intervention. See generally, APA 
Criteria for Accreditation of Doctoral Training Programs 
And I nternships (Jan. 1979).

“ Lahman , L icensure Requirements for Psychologists: USA 
AND Canada (1978); Stigall, Licensing and Certification, in PRO­
FESSIONAL Psychologist’s H andbook (B. Sales, ed., 1983). Cer­
tification laws limit the use of the title "psychologist". Licensing 
laws regulate the use of the title and also define the scope of those 
activities for which a  license is required. E.g., Okla. Stat. tit. 69, 
§ 1362 (1979). State examining boards administering laws regulat­
ing the practice of psychology also require that applicants pass an 
examination, either written, oral or both. Id. a t § 1365.



20

II

ices on an equal footing is expressed not only in public 
attitudes but also in federal and state statutory and 
regulatory law and in private sector practices. See Blue 
Shield v. McCready, 457 U.S. 465 (1982); Virginia 
Academy of Clinical Psychologists v. Blue Shield of Vir­
ginia, 624 F.2d 476 (4th Cir. 1980), cert, denied, 450 
U.S. 916 (1981). Most relevant federal statutes require 
direct Tecognition of “professional" psychologistsas inde­
pendent health-care providers, i.e., as persons qualified 
to deliver services without mandatory referral or super­
vision by a  physician.** Almost 40 states, including Okla­
homa, Okla. S ta t  t i t  36 §§ 2652; 6055 (1979), repre­
senting about 90% of the American population, have 
enacted laws establishing the direct recognition of psy­
chological services for reimbursement purposes.**

Psychologists have provided information as expert wit­
nesses in criminal trials since a t least the early 1920’s,

i
i

i
ii

** E.g., Federal Employees Compensation A ct 6 U.S.C. § 8101 (2) 
(1976); Vocational Rehabilitation Act 29 U.S.C. § 728(a)(1) 
(1976); Health Maintenance Organization Act 42 U.S.C. §S00e-l 
(1976); 42 C.F.R. §§ 110.101, 110.104 (1980); Disaster Relief Act 
42 U.S.C. §5183 (1976); 42 C.F.R. § 38.2(e) (1980); Veterans 
Health Care Expansion A ct 38 U.S.C. § 613(b) (1976); Compre­
hensive Employment and Training A ct 29 U.S.C. §§ 801 et seq. 
(1976); 29 C.F.R. $94.4(bb) (1978). Two notable examples of 
such programs are the Federal Employee Health Benefits Program, 
5 U.S.C. § 8902(k) (1976), Which covers approximately 10 million 
federal workers and their beneficiaries, and the Civilian Health and 
Medical Program of the Uniformed Services (CHAMPUS), 10 
U.S.C. §1071 et seq. (1976); 32 C.F.R. § 199.12(c) (3) (iii) (a) 
(1981), which covers both inpatient and outpatient services for 
approximately 7 million dependents of military personnel, retired 
military personnel, and other beneficiaries.

m APA, Recognition and Reimbursement for Psychological 
Services (1983). In effect these laws allow consumers a "freedom 
of choice” among state licensed practitioners. The Health Insurance 
Association of America, which represents more than 300 insurance 
companies that write approximately 80 percent of all health insur­
ance contracts issued by United States companies, formally sup­
ports the introduction of such “freedom of choice” legislation in 
the remaining states and has endorsed a model statute.

21

but it was not until 1940 that the issue of the admis­
sibility of psychologists’ testimony was formally addressed 
by the courts.”

Psychologists who are qualified in terms of their edu­
cation and experience may offer an opinion about the 
presence or absence of mental disorders and their causal 
connection with criminal or tortious conduct.”  A ma­
jority  of those jurisdictions that have discussed the ad­
missibility of such testimony trea t psychologists and 
psychiatrists equally.”  The use of expert witness testi­
mony from psychologists in criminal trials has met with 
almost unanimous endorsement by commentators.*8

** See H. Munsterberg, On the  W itness Stand : Essays on 
Psychology and Crime (1908); S. F reud, Psycho-analysis and 
t h e  E stablishment of th e  F acts in  Legal Proceedings, in 9 
T he  Complete P sychological W orks of S igmund F reud 103 
(std. ed. J. Strachey 1959) (originally published in 1906).

** People v. Hawthorne, 293 Mich. 16, 291 N.W. 205 (1940), 
Hidden v. Mutual Life Insurance Co., 217 F.2d 818 (4th Cir. 1954), 
and Jenkins v. United States, 307 F.2d 637 (D.C. Cir. 1962) (en 
banc).

17 See Gass, The Psychologist as Expert Witness, 38 Md. L. Rev. 
539, Appendix a t 602-621 (1978). Psychological expert testimony 
has been explicitly accepted in Oklahoma. Rogers v. State, 634 P.2d 
743 (Okla. Crim. App. 1981); Carter v. State, 376 P.2d 351 (Okla. 
Crim. App. 1962).

18 See, Bonnie, supra note 5; Lassen, The Psychologist as an Ex­
pert Witness in Assessing Mental Disease or Defect, 60 A.B.A. J. 
239 (1964); Levine, Psychologist as Expert Witness in “Psychi­
atric” Questions, 20 Clev. St. L. Rev. 235 (1955); Levitt, The 
Psychologist: A Neglected Legal Resource, 46 IND. L. J. 82 (1969); 
Louisell, The Psychologist in Today’s Legal World, 39 Min n . L. 
Rev. 235 (1955); Nash, Parameters and Distinctiveness of Psycho­
logical Testimony, 5 P rof. Psychol. 239 (1974); Pacht, Kuehn, 
Bassett & Nash, The Current Status of the Psychologist as an Ex­
pert Witness, 4 PROF. Psychol. 409 (1973); Perlin, The Legal 
Status of the Psychologist in the Courtroom, in T he Role of th e  
F orensic P sychologist 26-36 (G. Cooke, ed. 1980); Rice, The 
Psychologist as Expert Witness, 16 Amer. Psychol. 691 (1961); 
Note, Psychologist’s Diagnosis Regarding Mental Disease or Defect 
Admissible on Issue of Insanity, 8 ViLL. L. Rev. 119 (1962); Com-



i

i

m . r̂ |l!:;!i|ji'::!\i;piR«;!î !i;i!l

22
One of psychology’s most important contributions to 

the science of psychological evaluation has been the de­
velopment, administration, and interpretation of psycho­
logical tests which measure a variety of factors such as 
intelligence, personality, and psychopathology.** See gen­
erally E ig h th  M enta l  Measurem ents Y earbook (0 . 
Buros, ed. 1978). Although none of these tests should be 
used alone or interpreted without reference to the par­
ticular demographic attributes of the person being tested 
o r  to the setting in which the' tests have been admin-' 
istered, in the hands of an experienced and well-trained 
psychologist, they are important supplements to the evalu­
ation interview.*0

ment, The Psychologist as an Expett Witness, 15 Kan. L. Rev. 88 
(1966). There has been criticism that traditional expert testi­
mony by mental health professionals concerning the prediction 
of dangerousness is not justified. See, e.g., Ennis & Litwack, 
Psychiatry and the Presumption of Expertise: Flipping Coins in 
the Courtroom, 62 Calif. L. Rev. 693 (1974); Morse, Failed Ex­
planations and Criminal Responsibility: Experts and the Uncon­
scious, 68 Va. L. Rev. 971 (1982); Gass, The Psychologist as Ex­
pert Witness, 38 Md. L. Rev. 539 (1979). Insofar as these critiques 
argue that experts Bhould not be allowed to utter opinions that are 
not based on firm scientific evidence or that reveal a “doctrinaire 
commitment to a preconceived idea,” see, PASE v. Hannon, 506 
F. Supp. 831 (N.D. 111. 1980), amtci agree.

*• Assessment devices available to the professional psychologist 
include intelligence scales, paper-and-pencil personality tests, and 
projective techniques in which ambiguous stimuli are presented to 
the examinee to tap personality dynamics not always discernible to 
the lay person or to the examinee him/herself. “ (T]he special as­
sessment, testing, and intellectual/personality evaluation skills and 
techniques possessed by clinical psychologists uniquely prepare 
them for much courtroom work. . . .” Perlin, The Legal Status of 
the Psychologist in the Courtroom, in T he  Role of the  F orensic 
P sychologist 26 (G. Cooke, ed. 1980). Psychological tests are es­
sentially objective and standardized measures of samples of be­
havior. A. Anastasi, P sychological Testing (4th ed. 1976).

*° “A more objective method of assessing the degree of illness or 
the veracity of the patient may be through the psychological testing 
procedure which one cannot effectively fake throughout. Often one 
will require psychological testing to determine . . . underlying psy­
chotic process. Occasionally the testing, especially the projective

23

The use of a comprehensive assessment of intelligence 
and psychopathology is especially important in jurisdic-, 
tions, like Oklahoma, which use the M’Naghten test or 
one of its variants. Because that test weighs heavily the 
cognitive capacity of the defendant, reliance on expert 
testimony by psychologists, who are specifically trained 
to assess intellectual ability, may be of crucial significance 
to the defendant asserting the insanity defense.

C. Requiring The State to Provide Indigent Defend­
ants a Psychological Evaluation would Not Place 
an Unreasonable Procedural or Financial Burden 
on the State.

Providing an expert mental health evaluation to in­
digent defendants need not be complex or expensive. 
Given the limited number of insanity pleas actually 
raised, and the fact tha t the great majority of states 
already provide indigent defendants the resources neces­
sary to obtain expert mental health evaluations upon 
request,*1 the additional burden placed upon the criminal 
justice system by this requirement would be minimal. 
This additional burden is more than outweighed by con­
siderations of due process and equal protection.

1. The Procedure For Providing Indigent Defend­
ants An Expert Mental Health Evaluation Need 
Not be Burdensome.

The procedure for providing an indigent defendant 
with an expert mental health evaluation of his mental 
condition a t  the time of the alleged crime could be

testa, will show a psychotic element which does not emerge on 
clinical examination, especially after one or two interviews. Psycho­
logical trends and patterns of personality are quite helpful in as­
sessing an individual in forensic matters and are best determined 
by the testing procedure." Sadoif, Working with the Forensic 
Psychologist, in T he  Role of the  F orensic Psychologist 106, 109 
(G. Cooke, ed. 1980).

11 Brief for the Petitioner, Ake v. State, No. 83-5424, U.S. S. Ct.



Sat!'

;HI*l*ljVJ|tj«r «i

24

straightforward and efficient. As recommended by the 
ABA Standing Committee on Association Standards for 
Criminal Justice, upon belief tha t such an evaluation 
could support a substantial legal defense, counsel for 
the defense could move for such an evaluation a t  an 
ex-parte hearing. The court should g rant the motion as 
a m atter of course unless it  determines tha t the motion 
has fio foundation.**' Should the court determine th a t  a 
mental health evaluation is appropriate, there are several 
possible mechanisms for providing it. The court may 
make funds available and permit the defendant to select 
an expert of his choice. Alternatively, the court could 
make an appointment from a list of experts in much the 
same way that indigents are appointed counsel in some 
jurisdictions. Discretion as to the mode of selection could 
remain with the states.

This Court has determined tha t it  is a violation of due 
process to try  a defendant who is incompetent. Drope V. 
Missouri, 420 U.S. 162 (1975); Pate v. Robinson, 383 
U.S. 375 (1966). Pursuant to this determination, Okla­
homa and other states have passed statutes permitting 
the defendant to move for a competency hearing.”  Thus, 
where the competency of the defendant is in doubt, 
repetitive evaluations and hearings could be prevented by 
permitting counsel to move for an expert mental health 
evaluation of the defendant’s mental condition a t the 
time of the alleged crime when he or she moves for 
a competency evaluation and hearing.

2. The Cost of Providing Indigent Defendants an 
Expert Mental Health Evaluation Would Not 
Be Unduly High.

Despite its high degree of visibility, insanity is not 
often raised as a  defense, and only some of those who 
plead insanity are indigent defendants. I t is therefore

** ABA, Draft Standards, supra note 6.
”  See e.g., Okla. Stafc. t i t  22, § 1175.2 (1979).

25

unlikely that requiring states to provide an expert mental 
health evaluation for indigents who have pleaded insanity 
would result in substantial numbers of such requests.*1 If 
this Court’s holding were restricted to apply only to 
capital cases, the numbers involved would be even more 
limited.

“ Furthermore, most states already provide indigent de­
fendants with the resources required to obtain expert 
mental health evaluations either by statute or by court 
decision.** Those jurisdictions which provide psychologi­
cal evaluations to indigent defendants have not found the 
costs to be excessive. Thus a holding tha t the Constitu­
tion mandates the provision of such resources would af­
fect only the handful of states which have not yet 
extended such protections to their citizens and would not 
constitute a significant financial burden for those states; 
The incremental costs to the criminal justice system of 
requiring these few jurisdictions to provide such pro­
tections would thus not be high.

M Innovative programs for providing expert mental health evalu­
ations to indigent defendants can insure that the costs remain 
reasonable. In Virginia, for instance, the state utilizes an existing 
network of community mental health centers to provide such evalu­
ations to indigent defendants. Jailed defendants are taken to the 
centers to be evaluated on an outpatient basis, thereby avoiding 
more expensive hospitalization. The mental health experts con­
ducting such evaluations are required to have special training in 
forensic evaluations, usually provided by the University of Virginia 
Forensic Evaluation Training and Research Center. The current 
fee schedule provides for remuneration to the mental health centers 
in the sum of $100 for competency evaluations, $200 for retrospec­
tive evaluations of the defendant’s state of mind at the time of the 
crime, and $200 for a presentencing evaluation. Where the defend­
ant has already been evaluated once at the time of the presentenc­
ing evaluation, the fee drops to $100. Reimbursement for testimony 
a t trial is $50 per day, plus mileage. ANNUAL Report of the  
University of Virginia F orensic E valuation, Tkaning and Re­
search Center, 1982.

** Brief for the petitioner Ake v. State, footnotes 15 and 17, 
No. 83-5424, U.S. S. C t



26

JFT' 1»!T

II. WHERE THE STATE HAS RELIED ON EXPERT 
PREDICTIONS OF DANGEROUSNESS TO ESTAB­
LISH AGGRAVATING CIRCUMSTANCES SUP­
PORTING THE DEATH PENALTY, IT MAY NOT 
DENY AN INDIGENT DEFENDANT THE ASSIST­
ANCE OF A MENTAL HEALTH PROFESSIONAL 
TO EFFECTIVELY CROSS-EXAMINE AND RE­
BUT SUCH TESTIMONY.

This case poses the issue explicitly left open by this 
Court in Barefoot v. Estelle, ——  U.S. ——, 61 U.S.L.W. 
5189 (July 6, 1983)—whether “despite petitioner’s claim 
of indigency, the court [may refuse] to provide an expert 
for petitioner” to present views opposing the state’s 
psychiatric predictions of dangerousness admitted into 
evidence to support the death penalty. Id. a t 5194. Amici 
believe th a t the state may not, consistent with the due 
process requirements announced in Barefoot, introduce 
predictions of dangerousness to justify the death penalty 
and then deny the indigent defendant the means of pre­
senting opposing expert testimony. In Barefoot and more
recently in Strickland v. W ashington,------U.S.------- , 52
U.S.L.W. 4565 (May 14, 1984), the Court relied heavily 
on the truth-seeking nature of the adversary process to 
provide criminal defendants a constitutionally guaran­
teed fa ir trial, and the Court required tha t tha t process 
be adhered to in sentencing hearings. In this case, the 
adversary process required providing the petitioner the 
opportunity to secure at least one opposing expert wit­
ness, so tha t the state’s “psychiatric testimony predict­
ing dangerousness [could] be countered not only as 
erroneous in a particular case but as generally so un­
reliable that it should be ignored.” Barefoot v. Estelle, 
51 U.S.L.W. 6189, 5194 (1983).

This Court has recognized th a t “ the qualitative differ­
ence of death from all other punishments requires a 
correspondingly greater degree of scrutiny of the capital
sentencing determination.” California v. Ramos, ------
U.S. ------, 51 U.S.L.W. 5220, 5222 (1983). Pursu-

27

ant to this concern, the Court has undertaken to “pro­
vide standards for a constitutional death penalty that 
would serve both goals of measured, consistent applica­
tion and fairness to the accused.” Eddings v. Oklahoma, 
455 U.S. 104 (1982). The Court has ruled that the like­
lihood of fu ture dangerousness is a constitutionally ac­
ceptable criterion for imposing the death penalty, Jurek 
v. Texas, 428 U.S. 262 (1976). Finally, the Court has 
held that psychiatric predictions of future dangerousness 
are admissible in evidence, even if unreliable, but only 
because they are subject to cross-examination and re­
buttal in the adversary process. Barefoot v. E stelle ,------
U .S .------ , 51 U.S.L.W. 5189, 5194 (1983).

Those rulings have been implemented by statute in 
Oklahoma: “ [u]pon conviction of guilt of a defendant 
of murder in the first degree, the court shall conduct a 
separate sentencing proceeding to determine whether the 
defendant should be sentenced to death or life imprison­
m ent . . .  In the sentencing proceeding, evidence may be 
presented as to any of the aggravating circumstances 
enumerated in this act.” 21 Okla. Stat. § 701.10 (1983). 
Among the seven aggravating circumstances listed in the 
statute is the probability that the defendant would com­
m it criminal acts of violence that would constitute a con­
tinuing threat to society. Id. a t § 701.12(7) (1983).

In Ake, the trial court conducted the requisite sentenc­
ing proceeding, as required by statute. At tha t proceed­
ing, the prosecution put on two expert psychiatric wit­
nesses who testified tha t the defendant would constitute 
a continuing threat to society. Counsel for the defense 
had previously asked the court to appoint an expert for 
the defendant to help prepare for cross-examination and 
to rebut the prosecution’s witnesses but his request was 
denied. A t the close of the proceeding, the ju ry  found 
th a t Ake would probably commit fu ture criminal acts of 
violence, and he was sentenced to death. ,



28

*t*r

Amici assert that where, as here, the state has pre­
sented expert testimony on this issue, denying an in­
digent defendant access to expert assistance and testi­
mony necessary to the cross-examination and rebuttal of 
such witnesses is violative of his rights of due process, 
and effective assistance of counsel, and is so likely to 
produce an erroneous sentence as to be-in contravention 
of the Eighth Amendment

In Barefoot, the question presented was whether expert 
mental health testimony as to a defendant’s future dan­
gerousness was so unsound as to be likely to produce 
an erroneous sentence and therefore its admission was 
violative of the Eighth Amendment Unlike contem­
poraneous psychological evaluations, or evaluations of an 
individual’s past mental condition, predictions of future  
conduct, specifically of dangerousness, are highly unre­
liable.** Despite documentation of its unreliability, in-

** See e.g., Ennis & Litwack, Psychiatry and the Presumption of 
Expertise: Flipping Coins in the Courtroom, 62 Calif. L. Rev. 693 
(1974); Ewing, Dr. Death and The Case for an Ethical Ban on 
Psychiatric and Psychological Predictions of Dangerousness in 
Capital Sentencing Cases, 8 Au. J. Law  & Med. 407 (1983); Kozol, 
Boucher & Garafolo, The Diagnosis and Treatment of Dangerous­
ness, 18 Crime & Delinquency 371 (1971); Steadman, & Cocozza, 
Psychiatry, Dangerousness and the Repetitively Violent Offender, 
69 J. Crim . Law & Criminology 226 (1978), Monahan, T he Pre­
dictions of Violent Behavior; Developments in  P sychology 
and Law, T he Masters Lecture Series: P sychology and th e  
Law 147 (Scheirer and Hammonds, ed. 1982). Despite this un­
reliability, however, lay people are likely to display a high degree of 
deference to the opinions of mental health experts. As Justice 
Blackmun has acknowledged, ‘‘[t]here is little question that psy­
chiatrists are perceived by the public as having a special expertise 
to predict dangerousness, a perception based on psychiatrists’ study
of mental disease." Barefoot v. Estelle,----- U.S.------ , 51 U.S.L.W.
5189, 5202 (1983) (dissenting opinion). See also Gass, The Psy­
chologist as Expert Witness: Science in the Courtroom, 38 Md. 
L. Rev. 639, 599 (1979) (juries likely to exaggerate the signifi­
cance of psychological testimony given its "aura of scientific ac­
curacy").

29

eluding an Amicus brief filed by the American Psychia­
tric Association, the Court ruled that testimony predicting 
fu ture  dangerousness can be received in evidence. Jus­
tice White, writing for the majority, did not hold tha t 
such testimony was uniformly reliable. Rather, he ex­
pressed his conviction that the adversary system would 
provide the factfinder with the information necessary to 
weigh the testimony and reach the correct result.

We are unconvinced . . ., a t least as of now, that the 
adversary process cannot be trusted to sort out the 
reliable from the unreliable evidence and opinion 
about future dangerousness, particularly when the 
convicted felon has the opportunity to present his 
own side of the case. Id. a t 5195.

The majority opinion emphasized tha t effective cross 
examination and rebuttal testimony were essential to the 
fairness of receiving the state’s expert testimony regard­
ing fu ture dangerousness.

. . . [T]he rules of evidence generally extant a t the 
federal and state levels anticipate tha t relevant, un­
privileged evidence should be admitted and its weight 
left to the fact finder, who would have the benefit of 
cross examination and contrary evidence by the op­
posing party. Psychiatric testimony predicting dan­
gerousness may be countered not only as erroneous 
in a particular case but as generally so unreliable 
tha t i t  should be ignored . . . [ / ]  urors should not 
be barred from hearing the views of the State’s psy­
chiatrists along with the opposing views of the de­
fendant’s doctors” (emphasis added). Id. a t 5194.

The majority opinion strongly implied th a t if  the trial 
court had refused to provide an expert for an indigent 
defendant, so that there could be no “opposing views of 
the defendant’s doctors,” the Court’s rationale would not 
support the admission of the state’s expert testimony. 
The majority noted tha t there was no “contention th a t 
despite petitioner’s claim of indigence, the court refused 
to provide an expert for petitioner,” and noted tha t Texas



30

i

iiiii
i

provides up to $500 for the expense of expert witnesses. 
Id. a t 5194, n. 5. In this case, however, the trial court 
did refuse the request of an indigent defendant for a 
mental health expert to assist him.

Amici respectfully request th a t the Court extend the 
holdings of Jurek and Barefoot to their logical conclusion 
by holding tha t where, a s  here, -the-prosecution presents 
expert testimony as to the defendant’s future dangerous­
ness a t a capital sentencing hearing, an indigent defend­
ant is constitutionally entitled to the expert assistance es­
sential to the integrity of the adversary process in which 
the reliability of such testimony must be tested.

CONCLUSION

For the reasons stated above, the judgment of the 
Oklahoma Court of Criminal Appeals should be reversed 
and the case remanded for a new trial.

Respectfully submitted,

Margaret F arrell E wing 
(Counsel of Record)

Donald N. Bersoff 
Bruce J . E n n is

E n n is , F riedman, Bersoff & E wing 
1200 Seventeenth Street, N.W. 
Washington, D.C. 20036 
(202) 775-8100 

Attorneys for Amici Curiae *
June 2,1984

* Counsel acknowledge the able assistance of Jesse G. Kreier, a 
student a t Georgetown University Law Center, in the preparation 
of this brief.