Petitioner, an indigent, was charged with first-degree murder
and shooting with intent to kill. At his arraignment in an Oklahoma
trial court, his behavior was so bizarre that the trial judge,
sua sponte, ordered him to be examined by a psychiatrist.
Shortly thereafter, the examining psychiatrist found petitioner to
be incompetent to stand trial, and suggested that he be committed.
But six weeks later, after being committed to the state mental
hospital, petitioner was found to be competent on the condition
that he continue to be sedated within an antipsychotic drug. The
State then resumed proceedings, and, at a pretrial conference,
petitioner's attorney informed the court that he would raise an
insanity defense, and requested a psychiatric evaluation at state
expense to determine petitioner's mental state at the time of the
offense, claiming that he was entitled to such an evaluation by the
Federal Constitution. On the basis of
United States ex rel.
Smith v. Baldi, 344 U. S. 561, the
trial court denied petitioner's motion for such an evaluation. At
the guilt phase of the ensuing trial, the examining psychiatrists
testified that petitioner was dangerous to society, but there was
no testimony as to his sanity at the time of the offense. The jury
rejected the insanity defense, and petitioner was convicted on all
counts. At the sentencing proceeding, the State asked for the death
penalty on the murder counts, relying on the examining
psychiatrists' testimony to establish the likelihood of
petitioner's future dangerous behavior. Petitioner had no expert
witness to rebut this testimony or to give evidence in mitigation
of his punishment, and he was sentenced to death. The Oklahoma
Court of Criminal Appeals affirmed the convictions and sentences.
After rejecting, on the merits, petitioner's federal constitutional
claim that, as an indigent defendant, he should have been provided
the services of a court-appointed psychiatrist, the court ruled
that petitioner had waived such claim by not repeating his request
for a psychiatrist in his motion for a new trial.
Held:
1. This Court has jurisdiction to review this case. The Oklahoma
Court of Criminal Appeals' holding that the federal constitutional
claim to a court-appointed psychiatrist was waived depended on the
court's
Page 470 U. S. 69
federal law ruling, and consequently does not present an
independent state ground for its decision. Pp.
470 U. S.
74-75.
2. When a defendant has made a preliminary showing that his
sanity at the time of the offense is likely to be a significant
factor at trial, the Constitution requires that a State provide
access to a psychiatrist's assistance on this issue if the
defendant cannot otherwise afford one. Pp.
470 U. S.
76-85.
(a) In determining whether, and under what conditions, a
psychiatrist's participation is important enough to preparation of
a defense to require the State to provide an indigent defendant
with access to a psychiatrist, there are three relevant factors:
(i) the private interest that will be affected by the State's
actions; (ii) the State's interest that will be affected if the
safeguard is to be provided; and (iii) the probable value of the
additional or substitute safeguards that are sought and the risk of
an erroneous deprivation of the affected interest if those
safeguards are not provided. The private interest in the accuracy
of a criminal proceeding is almost uniquely compelling. The State's
interest in denying petitioner a psychiatrist's assistance is not
substantial in light of the compelling interest of both the State
and petitioner in accurate disposition. And without a
psychiatrist's assistance to conduct a professional examination on
issues relevant to the insanity defense, to help determine whether
that defense is viable, to present testimony, and to assist in
preparing the cross-examination of the State's psychiatric
witnesses, the risk of an inaccurate resolution of sanity issues is
extremely high. This is so particularly when the defendant is able
to make an
ex parte threshold showing that his sanity is
likely to be a significant factor in his defense. Pp.
470 U. S.
78-83.
(b) When the State at a capital sentencing proceeding presents
psychiatric evidence of the defendant's future dangerousness, the
defendant, without a psychiatrist's assistance, cannot offer an
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. In such a circumstance, where the
consequence of error is so great, the relevance of responsive
psychiatric testimony so evident, and the State's burden so slim,
due process requires access to a psychiatric examination on
relevant issues, to a psychiatrist's testimony, and to assistance
in preparation at the sentencing phase. Pp.
470 U. S.
83-84.
(c)
United State ex rel. Smith v. Baldi, supra, is not
authority for absolving the trial court of its obligation to
provide petitioner access to a psychiatrist. Pp.
470 U. S.
84-85.
3. On the record, petitioner was entitled to access to a
psychiatrist's assistance at his trial, it being clear that his
mental state at the time of
Page 470 U. S. 70
the offense was a substantial factor in his defense, and that
the trial court was on notice of that fact when the request for a
court-appointed psychiatrist was made. In addition, petitioner's
future dangerousness was a significant factor at the sentencing
phase, so as to entitle him to a psychiatrist's assistance on this
issue, and the denial of that assistance deprived him of due
process. Pp.
470 U. S.
86-87.
663
P.2d 1, reversed and remanded.
MARSHALL, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ.,
joined. BURGER, C.J., filed an opinion concurring in the judgment,
post, p.
470 U. S. 87.
REHNQUIST, J., filed a dissenting opinion,
post, p.
470 U. S.
87.
JUSTICE MARSHALL delivered the opinion of the Court.
The issue in this case is whether the Constitution requires that
an indigent defendant have access to the psychiatric examination
and assistance necessary to prepare an effective defense based on
his mental condition, when his sanity at the time of the offense is
seriously in question.
I
Late in 1979, Glen Burton Ake was arrested and charged with
murdering a couple and wounding their two children. He was
arraigned in the District Court for Canadian County,
Page 470 U. S. 71
Okla., in February, 1980. His behavior at arraignment, and in
other prearraignment incidents at the jail, was so bizarre that the
trial judge,
sua sponte, ordered him to be examined by a
psychiatrist
"for the purpose of advising with the Court as to his
impressions of whether the Defendant may need an extended period of
mental observation."
App. 2. The examining psychiatrist reported:
"At times, [Ake] appears to be frankly delusional. . . . He
claims to be the 'sword of vengeance' of the Lord, and that he will
sit at the left hand of God in heaven."
Id. at 8. He diagnosed Ake as a probable paranoid
schizophrenic, and recommended a prolonged psychiatric evaluation
to determine whether Ake was competent to stand trial.
In March, Ake was committed to a state hospital to be examined
with respect to his "present sanity,"
i.e., his competency
to stand trial. On April 10, less than six months after the
incidents for which Ake was indicted, the chief forensic
psychiatrist at the state hospital informed the court that Ake was
not competent to stand trial. The court then held a competency
hearing, at which a psychiatrist testified:
"[Ake] is a psychotic . . . his psychiatric diagnosis was that
of paranoid schizophrenia -- chronic, with exacerbation, that is
with current upset, and that in addition . . . he is dangerous. . .
. [B]ecause of the severity of his mental illness and because of
the intensities of his rage, his poor control, his delusions, he
requires a maximum security facility within -- I believe -- the
State Psychiatric Hospital system."
Id. at 11-12. The court found Ake to be a "mentally ill
person in need of care and treatment" and incompetent to stand
trial, and ordered him committed to the state mental hospital.
Six weeks later, the chief forensic psychiatrist informed the
court that Ake had become competent to stand trial. At the time,
Ake was receiving 200 milligrams of Thorazine, an antipsychotic
drug, three times daily, and the psychiatrist indicated that, if
Ake continued to receive that dosage, his
Page 470 U. S. 72
condition would remain stable. The State then resumed
proceedings against Ake.
At a pretrial conference in June, Ake's attorney informed the
court that his client would raise an insanity defense. To enable
him to prepare and present such a defense adequately, the attorney
stated, a psychiatrist would have to examine Ake with respect to
his mental condition at the time of the offense. During Ake's
3-month stay at the state hospital, no inquiry had been made into
his sanity at the time of the offense, and, as an indigent, Ake
could not afford to pay for a psychiatrist. Counsel asked the court
either to arrange to have a psychiatrist perform the examination or
to provide funds to allow the defense to arrange one. The trial
judge rejected counsel's argument that the Federal Constitution
requires that an indigent defendant receive the assistance of a
psychiatrist when that assistance is necessary to the defense, and
he denied the motion for a psychiatric evaluation at state expense
on the basis of this Court's decision in
United States ex rel.
Smith v. Baldi, 344 U. S. 561
(1953).
Ake was tried for two counts of murder in the first degree, a
crime punishable by death in Oklahoma, and for two counts of
shooting with intent to kill. At the guilt phase of trial, his sole
defense was insanity. Although defense counsel called to the stand
and questioned each of the psychiatrists who had examined Ake at
the state hospital, none testified about his mental state at the
time of the offense, because none had examined him on that point.
The prosecution, in turn, asked each of these psychiatrists whether
he had performed or seen the results of any examination diagnosing
Ake's mental state at the time of the offense, and each doctor
replied that he had not.
As a result, there was no expert
testimony for either side on Ake's sanity at the time of the
offense. The jurors were then instructed that Ake could be
found not guilty by reason of insanity if he did not have the
ability to distinguish right from wrong at the time of the alleged
offense. They
Page 470 U. S. 73
were further told that Ake was to be presumed sane at the time
of the crime unless he presented evidence sufficient to raise a
reasonable doubt about his sanity at that time. If he raised such a
doubt in their minds, the jurors were informed, the burden of proof
shifted to the State to prove sanity beyond a reasonable doubt.
[
Footnote 1] The jury rejected
Ake's insanity defense, and returned a verdict of guilty on all
counts.
At the sentencing proceeding, the State asked for the death
penalty. No new evidence was presented. The prosecutor relied
significantly on the testimony of the state psychiatrists, who had
examined Ake and who had testified at the guilt phase that Ake was
dangerous to society, to establish the likelihood of his future
dangerous behavior. Ake had no expert witness to rebut this
testimony or to introduce on his behalf evidence in mitigation of
his punishment. The jury sentenced Ake to death on each of the two
murder counts, and to 500 years' imprisonment on each of the two
counts of shooting with intent to kill.
On appeal to the Oklahoma Court of Criminal Appeals, Ake argued
that, as an indigent defendant, he should have been provided the
services of a court-appointed psychiatrist. The court rejected this
argument, observing:
"We have held numerous times that, the unique nature of capital
cases notwithstanding, the State does not have the responsibility
of
Page 470 U. S. 74
providing such services to indigents charged with capital
crimes."
663
P.2d 1, 6 (1983). Finding no error in Ake's other claims,
[
Footnote 2] the court affirmed
the convictions and sentences. We granted certiorari. 465 U.S. 1099
(1984).
We hold that, when a defendant has made a preliminary showing
that his sanity at the time of the offense is likely to be a
significant factor at trial, the Constitution requires that a State
provide access to a psychiatrist's assistance on this issue if the
defendant cannot otherwise afford one. Accordingly, we reverse.
II
Initially, we must address our jurisdiction to review this case.
After ruling on the merits of Ake's claim, the Oklahoma court
observed that in his motion for a new trial Ake had not repeated
his request for a psychiatrist and that the claim was thereby
waived. 663 P.2d at 6. The court cited
Hawkins v.
State, 569 P.2d
490 (Okla.Crim.App.1977), for this proposition. The State
argued in its brief to this Court that the court's holding on this
issue therefore rested on an adequate and independent state ground,
and ought not be reviewed. Despite the court's state law ruling, we
conclude that the state court's judgment does not rest on an
independent state ground, and that our jurisdiction is therefore
properly exercised.
The Oklahoma waiver rule does not apply to fundamental trial
error.
See Hawkins v. State, supra, at 493;
Gaddis
Page 470 U. S. 75
v. State, 447
P.2d 42, 45-46 (Okla.Crim.App.1968). Under Oklahoma law, and as
the State conceded at oral argument, federal constitutional errors
are "fundamental." Tr. of Oral Arg. 51-52;
see Buchanan v.
State, 523 P.2d
1134, 1137 (Okla.Crim.App.1974) (violation of constitutional
right constitutes fundamental error);
see also Williams v.
State, 658
P.2d 499 (Okla.Crim.App.1983). Thus, the State has made
application of the procedural bar depend on an antecedent ruling on
federal law, that is, on the determination of whether federal
constitutional error has been committed. Before applying the waiver
doctrine to a constitutional question, the state court must rule,
either explicitly or implicitly, on the merits of the
constitutional question.
As we have indicated in the past, when resolution of the state
procedural law question depends on a federal constitutional ruling,
the state law prong of the court's holding is not independent of
federal law, and our jurisdiction is not precluded.
See Herb v.
Pitcairn, 324 U. S. 117,
324 U. S. 126
(1945) ("We are not permitted to render an advisory opinion, and if
the same judgment would be rendered by the state court after we
corrected its views of Federal laws, our review could amount to
nothing more than an advisory opinion");
Enterprise Irrigation
District v. Farmers Mutual Canal Co., 243 U.
S. 157,
243 U. S. 164
(1917) ("But where the non-Federal ground is so interwoven with the
other as not to be an independent matter, or is not of sufficient
breadth to sustain the judgment without any decision of the other,
our jurisdiction is plain"). In such a case, the federal law
holding is integral to the state court's disposition of the matter,
and our ruling on the issue is in no respect advisory. In this
case, the additional holding of the state court -- that the
constitutional challenge presented here was waived -- depends on
the court's federal law ruling, and consequently does not present
an independent state ground for the decision rendered. We therefore
turn to a consideration of the merits of Ake's claim.
Page 470 U. S. 76
III
This Court has long recognized that, when a State brings its
judicial power to bear on an indigent defendant in a criminal
proceeding, it must take steps to assure that the defendant has a
fair opportunity to present his defense. This elementary principle,
grounded in significant part on the Fourteenth Amendment's due
process guarantee of fundamental fairness, derives from the belief
that justice cannot be equal where, simply as a result of his
poverty, a defendant is denied the opportunity to participate
meaningfully in a judicial proceeding in which his liberty is at
stake. In recognition of this right, this Court held almost 30
years ago that, once a State offers to criminal defendants the
opportunity to appeal their cases, it must provide a trial
transcript to an indigent defendant if the transcript is necessary
to a decision on the merits of the appeal.
Griffin v.
Illinois, 351 U. S. 12
(1956). Since then, this Court has held that an indigent defendant
may not be required to pay a fee before filing a notice of appeal
of his conviction,
Burns v. Ohio, 360 U.
S. 252 (1959), that an indigent defendant is entitled to
the assistance of counsel at trial,
Gideon v. Wainwright,
372 U. S. 335
(1963), and on his first direct appeal as of right,
Douglas v.
California, 372 U. S. 353
(1963), and that such assistance must be effective.
See Evitts
v. Lucey, 469 U. S. 387
(1985);
Strickland v. Washington, 466 U.
S. 668 (1984);
McMann v. Richardson,
397 U. S. 759,
397 U. S. 771,
n. 14 (1970). [
Footnote 3]
Indeed, in
Little v. Streater, 452 U. S.
1 (1981), we extended this principle of meaningful
participation to a "quasi-criminal" proceeding, and held that, in a
paternity action, the State cannot deny the putative father blood
grouping tests, if he cannot otherwise afford them.
Page 470 U. S. 77
Meaningful access to justice has been the consistent theme of
these cases. We recognized long ago that mere access to the
courthouse doors does not, by itself, assure a proper functioning
of the adversary process, and that a criminal trial is
fundamentally unfair if the State proceeds against an indigent
defendant without making certain that he has access to the raw
materials integral to the building of an effective defense. Thus,
while the Court has not held that a State must purchase for the
indigent defendant all the assistance that his wealthier
counterpart might buy,
see Ross v. Moffitt, 417 U.
S. 600 (1974), it has often reaffirmed that fundamental
fairness entitles indigent defendants to "an adequate opportunity
to present their claims fairly within the adversary system,"
id. at
417 U. S. 612.
To implement this principle, we have focused on identifying the
"basic tools of an adequate defense or appeal,"
Britt v. North
Carolina, 404 U. S. 226,
404 U. S. 227
(1971), and we have required that such tools be provided to those
defendants who cannot afford to pay for them.
To say that these basic tools must be provided is, of course,
merely to begin our inquiry. In this case, we must decide whether,
and under what conditions, the participation of a psychiatrist is
important enough to preparation of a defense to require the State
to provide an indigent defendant with access to competent
psychiatric assistance in preparing the defense. Three factors are
relevant to this determination. The first is the private interest
that will be affected by the action of the State. The second is the
governmental interest that will be affected if the safeguard is to
be provided. The third is the probable value of the additional or
substitute procedural safeguards that are sought, and the risk of
an erroneous deprivation of the affected interest if those
safeguards are not provided.
See Little v. Streater,
supra, at
452 U. S. 6;
Mathews v. Eldridge, 424 U. S. 319,
424 U. S. 335
(1976). We turn, then, to apply this standard to the issue before
us.
Page 470 U. S. 78
A
The private interest in the accuracy of a criminal proceeding
that places an individual's life or liberty at risk is almost
uniquely compelling. Indeed, the host of safeguards fashioned by
this Court over the years to diminish the risk of erroneous
conviction stands as a testament to that concern. The interest of
the individual in the outcome of the State's effort to overcome the
presumption of innocence is obvious, and weighs heavily in our
analysis.
We consider, next, the interest of the State. Oklahoma asserts
that to provide Ake with psychiatric assistance on the record
before us would result in a staggering burden to the State. Brief
for Respondent 46-47. We are unpersuaded by this assertion. Many
States, as well as the Federal Government, currently make
psychiatric assistance available to indigent defendants, and they
have not found the financial burden so great as to preclude this
assistance. [
Footnote 4] This
is
Page 470 U. S. 79
especially so when the obligation of the State is limited to
provision of one competent psychiatrist, as it is in many States,
and as we limit the right we recognize today. At the same time, it
is difficult to identify any interest of the State, other than that
in its economy, that weighs against recognition of this right. The
State's interest in prevailing at trial -- unlike that of a private
litigant -- is necessarily tempered by its interest in the fair and
accurate adjudication of criminal cases. Thus, also unlike a
private litigant, a State may not legitimately assert an interest
in maintenance of a strategic advantage over the defense, if the
result of that advantage is to cast a pall on the accuracy of the
verdict obtained. We therefore conclude that the governmental
interest in denying Ake the assistance of a psychiatrist is not
substantial, in light of the compelling interest of both the State
and the individual in accurate dispositions.
Last, we inquire into the probable value of the psychiatric
assistance sought, and the risk of error in the proceeding if such
assistance is not offered. We begin by considering the pivotal role
that psychiatry has come to play in criminal proceedings. More than
40 States, as well as the Federal Government, have decided, either
through legislation or judicial decision, that indigent defendants
are entitled, under certain circumstances, to the assistance of a
psychiatrist's expertise. [
Footnote
5] For example, in subsection (e) of the Criminal Justice Act,
18 U.S.C. § 3006A, Congress has provided that indigent
Page 470 U. S. 80
defendants shall receive the assistance of all experts
"necessary for an adequate defense." Numerous state statutes
guarantee reimbursement for expert services under a like standard.
And in many States that have not assured access to psychiatrists
through the legislative process, state courts have interpreted the
State or Federal Constitution to require that psychiatric
assistance be provided to indigent defendants when necessary for an
adequate defense, or when insanity is at issue. [
Footnote 6]
These statutes and court decisions reflect a reality that we
recognize today, namely, that, when the State has made the
defendant's mental condition relevant to his criminal culpability
and to the punishment he might suffer, the assistance of a
psychiatrist may well be crucial to the defendant's ability to
marshal his defense. In this role, psychiatrists gather facts,
through professional examination, interviews, and elsewhere, that
they will share with the judge or jury; they analyze the
information gathered and from it draw plausible conclusions about
the defendant's mental condition, and about the effects of any
disorder on behavior; and they offer opinions about how the
defendant's mental condition might have affected his behavior at
the time in question. They know the probative questions to ask of
the opposing party's psychiatrists, and how to interpret their
answers. Unlike lay witnesses, who can merely describe symptoms
they believe might be relevant to the defendant's mental state,
psychiatrists can identify the "elusive and often deceptive"
symptoms of insanity,
Solesbee v. Balkcom, 339 U. S.
9,
339 U. S. 12
(1950), and tell the jury why their observations are relevant.
Further, where permitted by evidentiary rules, psychiatrists can
translate a medical diagnosis into language that will assist the
trier of fact, and therefore offer evidence in a form that has
meaning for the task at hand. Through this process of
investigation, interpretation, and testimony, psychiatrists
Page 470 U. S. 81
ideally assist lay jurors, who generally have no training in
psychiatric matters, to make a sensible and educated determination
about the mental condition of the defendant at the time of the
offense.
Psychiatry is not, however, an exact science, and psychiatrists
disagree widely and frequently on what constitutes mental illness,
on the appropriate diagnosis to be attached to given behavior and
symptoms, on cure and treatment, and on likelihood of future
dangerousness. Perhaps because there often is no single, accurate
psychiatric conclusion on legal insanity in a given case, juries
remain the primary factfinders on this issue, and they must resolve
differences in opinion within the psychiatric profession on the
basis of the evidence offered by each party. When jurors make this
determination about issues that inevitably are complex and foreign,
the testimony of psychiatrists can be crucial and "a virtual
necessity if an insanity plea is to have any chance of success."
[
Footnote 7] By organizing a
defendant's mental history, examination results and behavior, and
other information, interpreting it in light of their expertise, and
then laying out their investigative and analytic process to the
jury, the psychiatrists for each party enable the jury to make its
most accurate determination of the truth on the issue before them.
It is for this reason that States rely on psychiatrists as
examiners, consultants, and witnesses, and that private individuals
do as well,
Page 470 U. S. 82
when they can afford to do so. [
Footnote 8] In so saying, we neither approve nor
disapprove the widespread reliance on psychiatrists, but instead
recognize the unfairness of a contrary holding in light of the
evolving practice.
The foregoing leads inexorably to the conclusion that, without
the assistance of a psychiatrist to conduct a professional
examination on issues relevant to the defense, to help determine
whether the insanity defense is viable, to present testimony, and
to assist in preparing the cross-examination of a State's
psychiatric witnesses, the risk of an inaccurate resolution of
sanity issues is extremely high. With such assistance, the
defendant is fairly able to present at least enough information to
the jury, in a meaningful manner, as to permit it to make a
sensible determination.
A defendant's mental condition is not necessarily at issue in
every criminal proceeding, however, and it is unlikely that
psychiatric assistance of the kind we have described would be of
probable value in cases where it is not. The risk of error from
denial of such assistance, as well as its probable value, is most
predictably at its height when the defendant's mental condition is
seriously in question. When the defendant is able to make an
ex
parte threshold showing to the trial court that his sanity is
likely to be a significant factor in
Page 470 U. S. 83
his defense, the need for the assistance of a psychiatrist is
readily apparent. It is in such cases that a defense may be
devastated by the absence of a psychiatric examination and
testimony; with such assistance, the defendant might have a
reasonable chance of success. In such a circumstance, where the
potential accuracy of the jury's determination is so dramatically
enhanced, and where the interests of the individual and the State
in an accurate proceeding are substantial, the State's interest in
its fisc must yield. [
Footnote
9]
We therefore hold that, when a defendant demonstrates to the
trial judge that his sanity at the time of the offense is to be a
significant factor at trial, the State must, at a minimum, assure
the defendant access to a competent psychiatrist who will conduct
an appropriate examination and assist in evaluation, preparation,
and presentation of the defense. This is not to say, of course,
that the indigent defendant has a constitutional right to choose a
psychiatrist of his personal liking or to receive funds to hire his
own. Our concern is that the indigent defendant have access to a
competent psychiatrist for the purpose we have discussed, and as in
the case of the provision of counsel we leave to the States the
decision on how to implement this right.
B
Ake also was denied the means of presenting evidence to rebut
the State's evidence of his future dangerousness. The foregoing
discussion compels a similar conclusion in the context of a capital
sentencing proceeding, when the State presents psychiatric evidence
of the defendant's future dangerousness. We have repeatedly
recognized the defendant's compelling interest in fair adjudication
at the sentencing phase of a capital case. The State, too, has a
profound interest
Page 470 U. S. 84
in assuring that its ultimate sanction is not erroneously
imposed, and we do not see why monetary considerations should be
more persuasive in this context than at trial. The variable on
which we must focus is, therefore, the probable value that the
assistance of a psychiatrist will have in this area, and the risk
attendant on its absence.
This Court has upheld the practice in many States of placing
before the jury psychiatric testimony on the question of future
dangerousness,
see Barefoot v. Estelle, 463 U.
S. 880,
463 U. S.
896-905 (1983), at least where the defendant has had
access to an expert of his own,
id. at
463 U. S. 899,
n. 5. In so holding, the Court relied, in part, on the assumption
that the factfinder would have before it both the views of the
prosecutor's psychiatrists and the "opposing views of the
defendant's doctors," and would therefore be competent to "uncover,
recognize, and take due account of . . . shortcomings" in
predictions on this point.
Id. at
463 U. S. 899.
Without a psychiatrist'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. In such a
circumstance, where the consequence of error is so great, the
relevance of responsive psychiatric testimony so evident, and the
burden on the State so slim, due process requires access to a
psychiatric examination on relevant issues, to the testimony of the
psychiatrist, and to assistance in preparation at the sentencing
phase.
C
The trial court in this case believed that our decision in
United States ex rel. Smith v. Baldi, 344 U.
S. 561 (1953), absolved it completely of the obligation
to provide access to a psychiatrist. For two reasons, we disagree.
First, neither
Smith nor
McGarty v. O'Brien, 188
F.2d 151, 155 (CA1 1951), to which the majority cited in
Smith, even suggested that the Constitution does not
require any psychiatric examination or assistance whatsoever. Quite
to the contrary, the
Page 470 U. S. 85
record in
Smith demonstrated that neutral psychiatrists
in fact had examined the defendant as to his sanity, and had
testified on that subject at trial, and it was on that basis that
the Court found no additional assistance was necessary.
Smith,
supra, at
344 U. S. 568;
see also United States ex rel. Smith v. Baldi, 192 F.2d
540, 547 (CA3 1951). Similarly, in
McGarty, the defendant
had been examined by two psychiatrists who were not beholden to the
prosecution. We therefore reject the State's contention that
Smith supports the broad proposition that
"[t]here is presently no constitutional right to have a
psychiatric examination of a defendant's sanity at the time of the
offense."
Brief in Opposition 8. At most it supports the proposition that
there is no constitutional right to more psychiatric assistance
than the defendant in
Smith had received.
In any event, our disagreement with the State's reliance on
Smith is more fundamental. That case was decided at a time
when indigent defendants in state courts had no constitutional
right to even the presence of counsel. Our recognition since then
of elemental constitutional rights, each of which has enhanced the
ability of an indigent defendant to attain a fair hearing, has
signaled our increased commitment to assuring meaningful access to
the judicial process. Also, neither trial practice nor legislative
treatment of the role of insanity in the criminal process sits
paralyzed simply because this Court has once addressed them, and we
would surely be remiss to ignore the extraordinarily enhanced role
of psychiatry in criminal law today. [
Footnote 10] Shifts in all these areas since the time of
Smith convince us that the opinion in that case was
addressed to altogether different variables, and that we are not
limited by it in considering whether fundamental fairness today
requires a different result.
Page 470 U. S. 86
IV
We turn now to apply these standards to the facts of this case.
On the record before us, it is clear that Ake's mental state at the
time of the offense was a substantial factor in his defense, and
that the trial court was on notice of that fact when the request
for a court-appointed psychiatrist was made. For one, Ake's sole
defense was that of insanity. Second, Ake's behavior at
arraignment, just four months after the offense, was so bizarre as
to prompt the trial judge,
sua sponte, to have him
examined for competency. Third, a state psychiatrist shortly
thereafter found Ake to be incompetent to stand trial, and
suggested that he be committed. Fourth, when he was found to be
competent six weeks later, it was only on the condition that he be
sedated with large doses of Thorazine three times a day, during
trial. Fifth, the psychiatrists who examined Ake for competency
described to the trial court the severity of Ake's mental illness
less than six months after the offense in question, and suggested
that this mental illness might have begun many years earlier. App.
35. Finally, Oklahoma recognizes a defense of insanity, under which
the initial burden of producing evidence falls on the defendant.
[
Footnote 11] Taken
together, these factors make clear that the question of Ake's
sanity was likely to be a significant factor in his defense.
[
Footnote 12]
In addition, Ake's future dangerousness was a significant factor
at the sentencing phase. The state psychiatrist who treated Ake at
the state mental hospital testified at the guilt phase that,
because of his mental illness, Ake posed a threat of continuing
criminal violence. This testimony raised the issue of Ake's future
dangerousness, which is an aggravating factor under Oklahoma's
capital sentencing scheme, Okla.Stat., Tit. 21, § 701.12(7) (1981),
and on which the prosecutor relied at sentencing. We therefore
conclude that Ake also
Page 470 U. S. 87
was entitled to the assistance of a psychiatrist on this issue,
and that the denial of that assistance deprived him of due process.
[
Footnote 13]
Accordingly, we reverse and remand for a new trial.
It is so ordered.
[
Footnote 1]
Oklahoma Stat., Tit. 21, § 152 (1981), provides that
"[a]ll persons are capable of committing crimes, except those
belonging to the following classes . . . (4) Lunatics, insane
persons and all persons of unsound mind, including persons
temporarily or partially deprived of reason, upon proof that at the
time of committing the act charged against them they were incapable
of knowing its wrongfulness."
The Oklahoma Court of Criminal Appeals has held that there is an
initial presumption of sanity in every case,
"which remains until the defendant raises, by sufficient
evidence, a reasonable doubt as to his sanity at the time of the
crime. If the issue is so raised, the burden of proving the
defendant's sanity beyond a reasonable doubt falls upon the
State."
663
P.2d 1, 10 (1983) (case below);
see also Rogers v.
State, 634
P.2d 743 (Okla. Crim. App.1981).
[
Footnote 2]
The Oklahoma Court of Criminal Appeals also dismissed Ake's
claim that the Thorazine he was given during trial rendered him
unable to understand the proceedings against him or to assist
counsel with his defense. The court acknowledged that Ake "stared
vacantly ahead throughout the trial," but rejected Ake's challenge
in reliance on a state psychiatrist's word that Ake was competent
to stand trial while under the influence of the drug. 663 P.2d at
7-8, and n. 5. Ake petitioned for a writ of certiorari on this
issue as well. In light of our disposition of the other issues
presented, we need not address this claim.
[
Footnote 3]
This Court has recently discussed the role that due process has
played in such cases, and the separate but related inquiries that
due process and equal protection must trigger.
See Evitts v.
Lucey; Bearden v. Georgia, 461 U. S. 660
(1983).
[
Footnote 4]
See Ala.Code § 15-12-21 (Supp.1984); Alaska Stat.Ann. §
18.85.100 (1981); Ariz.Rev.Stat.Ann. § 13-4013 (1978) (capital
cases; extended to noncapital cases in
State v. Peeler,
126 Ariz. 254, 614 P.2d 335 (App.1980)); Ark.Stat.Ann. § 17-456
(Supp.1983); Cal.Penal Code Ann. § 987.9 (West Supp.1984) (capital
cases; right recognized in all cases in
People v.
Worthy, 109 Cal. App.
3d 514,
167 Cal. Rptr.
402 (1980)); Colo.Rev.Stat. § 18-1-403 (Supp.1984);
State
v. Clemons, 168 Conn.395, 363 A.2d 33 (1975); Del.Code Ann.,
Tit. 29, § 4603 (1983); Fla.Rule Crim.Proc. 3.216; Haw.Rev.Stat. §
802-7 (Supp.1983);
State v. Olin, 103 Idaho 391, 648 P.2d
203 (1982);
People v. Watson, 36 Ill. 2d
228,
221 N.E.2d
645 (1966);
Owen v. State, 272 Ind. 122,
396 N.E.2d
376 (1979) (trial judge may authorize or appoint experts where
necessary); Iowa Rule Crim.Proc.19; Kan.Stat.Ann. § 22-4508
(Supp.1983); Ky.Rev.Stat. §§ 31.070, 31.110, 31.185 (1980);
State v. Madson, 345 So.
2d 485 (La.1977);
State v. Anaya, 456 A.2d
1255 (Me.1983); Mass.Gen.Laws Ann., ch. 261, § 27C(4) (West
Supp.1984-1985); Mich.Comp.Laws Ann. § 768.20a(3) (Supp.1983);
Minn.Stat. § 611.21 (1982); Miss.Code Ann. § 99-15-17 (Supp.1983);
Mo.Rev.Stat. § 552.030.4 (Supp.1984); Mont.Code Ann. § 46-8-201
(1983);
State v. Suggett, 200 Neb. 693,
264 N.W.2d
876 (1978) (discretion to appoint psychiatrist rests with trial
court); Nev.Rev.Stat. § 7.135 (1983); N.H.Rev.Stat.Ann. § 604-A:6
(Supp.1983); N.M.Stat.Ann. §§ 31-16-2, 31-16-8 (1984); N.Y. County
Law § 722-c (McKinney Supp.1984-1985); N.C.Gen.Stat. § 7A-454
(1981); Ohio Rev.Code Ann. § 2941.51 (Supp.1983); Ore.Rev.Stat. §
135.055(4) (1983);
Commonwealth v. Gelormo, 327 Pa.Super.
219, 227, and n. 5,
475
A.2d 765, 769, and n. 5 (1984); R.I.Gen.Laws § 9-17-19
(Supp.1984); S.C.Code § 17-3-80 (Supp.1983); S.D.Codified Laws §
23A-40-8 (Supp.1984); Tenn.Code Ann. § 40-14-207 (Supp.1984);
Tex.Code Crim.Proc.Ann., Art. § 26.05 (Vernon Supp.1984); Utah Code
Ann. § 77-32-1 (1982); Wash.Rev.Code §§ 10.77.020, 10.77.060 (1983)
(
see also State v. Cunningham, 18 Wash. App. 517, 569 P.2d
1211 (1977)); W.Va.Code § 29-21-14(e)(3) (Supp.1984); Wyo.Stat. §§
7-1-108; 7-1-110; 7-1-116 (1977).
[
Footnote 5]
See n.
4
supra.
[
Footnote 6]
Ibid.
[
Footnote 7]
Gardner, The Myth of the Impartial Psychiatric Expert -- Some
Comments Concerning Criminal Responsibility and the Decline of the
Age of Therapy, 2 Law & Psychology Rev. 99, 113-114 (1976). In
addition,
"[t]estimony emanating from the depth and scope of specialized
knowledge is very impressive to a jury. The same testimony from
another source can have less effect."
F. Bailey & H. Rottablatt, Investigation and Preparation of
Criminal Cases § 175 (1970);
see also ABA Standards for
Criminal Justice 5-1.4, Commentary, p. 5-20 (2d ed.1980) ("The
quality of representation at trial . . . may be excellent, and yet
valueless to the defendant if the defense requires the assistance
of a psychiatrist . . . and no such services are available").
[
Footnote 8]
See also Reilly v. Barry, 250 N.Y. 456, 461, 166 N.E.
165, 167 (1929) (Cardozo, C.J.) ("[U]pon the trial of certain
issues, such as insanity or forgery, experts are often necessary
both for prosecution and for defense. . . . [A] defendant may be at
an unfair disadvantage if he is unable, because of poverty, to
parry by his own witnesses the thrusts of those against him"); 2 I.
Goldstein & F. Lane, Goldstein Trial Techniques § 14.01 (2d
ed.1969) ("Modern civilization, with its complexities of business,
science, and the professions, has made expert and opinion evidence
a necessity. This is true where the subject matters involved are
beyond the general knowledge of the average juror"); Henning, The
Psychiatrist in the Legal Process, in By Reason of Insanity: Essays
on Psychiatry and the Law 217, 219-220 (L. Freedman ed., 1983)
(discussing the growing role of psychiatric witnesses as a result
of changing definitions of legal insanity and increased judicial
and legislative acceptance of the practice).
[
Footnote 9]
In any event, before this Court, the State concedes that such a
right exists, but argues only that it is not implicated here. Brief
for Respondent 45; Tr. of Oral Arg. 52. It therefore recognizes
that the financial burden is not always so great as to outweigh the
individual interest.
[
Footnote 10]
See Henning,
supra, n 8; Gardner,
supra, n 7, at 99; H. Huckabee, Lawyers, Psychiatrists and
Criminal Law: Cooperation or Chaos? 179-181 (1980) (discussing
reasons for the shift toward reliance on psychiatrists); Huckabee,
Resolving the Problem of Dominance of Psychiatrists in Criminal
Responsibility Decisions: A Proposal, 27 Sw.L.J. 790 (1973).
[
Footnote 11]
See n 1,
supra.
[
Footnote 12]
We express no opinion as to whether any of these factors, alone
or in combination, is necessary to make this finding.
[
Footnote 13]
Because we conclude that the Due Process Clause guaranteed to
Ake the assistance he requested and was denied, we have no occasion
to consider the applicability of the Equal Protection Clause, or
the Sixth Amendment, in this context.
CHIEF JUSTICE BURGER, concurring in the judgment.
This is a capital case in which the Court is asked to decide
whether a State may refuse an indigent defendant "any opportunity
whatsoever" to obtain psychiatric evidence for the preparation and
presentation of a claim of insanity by way of defense when the
defendant's legal sanity at the time of the offense was "seriously
in issue."
The facts of the case and the question presented confine the
actual holding of the Court. In capital cases, the finality of the
sentence imposed warrants protections that may or may not be
required in other cases. Nothing in the Court's opinion reaches
noncapital cases.
JUSTICE REHNQUIST, dissenting.
The Court holds that,
"when a defendant has made a preliminary showing that his sanity
at the time of the offense is likely to be a significant factor at
trial, the Constitution requires that a State provide access to a
psychiatrist's assistance on this issue if the defendant cannot
otherwise afford one."
Ante at
470 U. S. 74. I
do not think that the facts of this case warrant the establishment
of such a principle, and I think that, even if the factual
predicate of the Court's statement were established, the
constitutional rule announced by the Court is far too broad. I
would limit the rule to capital cases, and make clear that the
entitlement is to an independent psychiatric evaluation, not to a
defense consultant.
Page 470 U. S. 88
Petitioner Ake and his codefendant Hatch quit their jobs on an
oil field rig in October, 1979, borrowed a car, and went looking
for a location to burglarize. They drove to the rural home of
Reverend and Mrs. Richard Douglass, and gained entrance to the home
by a ruse. Holding Reverend and Mrs. Douglass and their children,
Brooks and Leslie, at gunpoint, they ransacked the home; they then
bound and gagged the mother, father, and son, and forced them to
lie on the living room floor. Ake and Hatch then took turns
attempting to rape 12-year-old Leslie Douglass in a nearby bedroom.
Having failed in these efforts, they forced her to lie on the
living room floor with the other members of her family.
Ake then shot Reverend Douglass and Leslie each twice, and Mrs.
Douglass and Brooks once, with a .357 magnum pistol, and fled. Mrs.
Douglass died almost immediately as a result of the gunshot wound;
Reverend Douglass' death was caused by a combination of the
gunshots he received and strangulation from the manner in which he
was bound. Leslie and Brooks managed to untie themselves and to
drive to the home of a nearby doctor. Ake and his accomplice were
apprehended in Colorado following a month-long crime spree that
took them through Arkansas, Louisiana, Texas, and other States in
the western half of the United States.
Ake was extradited from Colorado to Oklahoma on November 20,
1979, and placed in the city jail in El Reno, Oklahoma. Three days
after his arrest, he asked to speak to the Sheriff. Ake gave the
Sheriff a detailed statement concerning the above crimes, which was
first taped, then reduced to 44 written pages, corrected, and
signed by Ake.
Ake was arraigned on November 23, 1979, and again appeared in
court with his codefendant Hatch on December 11th. Hatch's attorney
requested and obtained an order transferring Hatch to the state
mental hospital for a 60-day observation period to determine his
competency to stand trial; although Ake was present in court with
his attorney
Page 470 U. S. 89
during this proceeding, no such request was made on behalf of
Ake.
On January 21, 1980, both Ake and Hatch were bound over for
trial at the conclusion of a preliminary hearing. No suggestion of
insanity at the time of the commission of the offense was made at
this time. On February 14, 1980, Ake appeared for formal
arraignment, and at this time became disruptive. The court ordered
that Ake be examined by Dr. William Allen, a psychiatrist in
private practice, in order to determine his competency to stand
trial. On April 10, 1980, a competency hearing was held at the
conclusion of which the trial court found that Ake was a mentally
ill person in need of care and treatment, and he was transferred to
a state institution. Six weeks later, the chief psychiatrist for
the institution advised the court that Ake was now competent to
stand trial, and the murder trial began on June 23, 1980. At this
time, Ake's attorney withdrew a pending motion for jury trial on
present sanity. Outside the presence of the jury, the State
produced testimony of a cellmate of Ake, who testified that Ake had
told him that he was going to try to "play crazy."
The State at trial produced evidence as to guilt, and the only
evidence offered by Ake was the testimony of the doctors who had
observed and treated him during his confinement pursuant to the
previous order of the court. Each of these doctors testified as to
Ake's mental condition at the time of his confinement in the
institution, but none could express a view as to his mental
condition at the time of the offense. Significantly, although all
three testified that Ake suffered from some form of mental illness
six months after he committed the murders, on cross-examination,
two of the psychiatrists specifically stated that they had "no
opinion" concerning Ake's capacity to tell right from wrong at the
time of the offense, and the third would only speculate that a
psychosis might have been "apparent" at that time. The Court
Page 470 U. S. 90
makes a point of the fact that "there was no expert testimony
for either side on Ake's sanity at the time of the offense."
Ante at
470 U. S. 72
(emphasis deleted). In addition, Ake called no lay witnesses,
although some apparently existed who could have testified
concerning Ake's actions that might have had a bearing on his
sanity at the time of the offense, and, although two "friends" of
Ake's who had been with him at times proximate to the murders
testified at trial at the behest of the prosecution, defense
counsel did not question them concerning any of Ake's actions that
might have a bearing on his sanity.
The Court's opinion states that, before an indigent defendant is
entitled to a state-appointed psychiatrist, the defendant must make
"a preliminary showing that his sanity at the time of the offense
is likely to be a significant factor at trial."
Ante at
470 U. S. 74.
But nowhere in the opinion does the Court elucidate how that
requirement is satisfied in this particular case. Under Oklahoma
law, the burden is initially on the defendant to raise a reasonable
doubt as to his sanity at the time of the offense. Once that burden
is satisfied, the burden shifts to the State to prove sanity beyond
a reasonable doubt.
Ake v. State, 663
P.2d 1, 10 (1983). Since the State introduced no evidence
concerning Ake's sanity at the time of the offense, it seems clear
that, as a matter of state law, Ake failed to carry the initial
burden. Indeed, that was the holding of the Oklahoma Court of
Criminal Appeals.
Ibid.
Nor is this a surprising conclusion on the facts here. The
evidence of the brutal murders perpetrated on the victims, and of
the month-long crime spree following the murders, would not seem to
raise any question of sanity unless one were to adopt the dubious
doctrine that no one in his right mind would commit a murder. The
defendant's 44-page confession, given more than a month after the
crimes, does not suggest insanity; nor does the failure of Ake's
attorney to move for a competency hearing at the time the
codefendant
Page 470 U. S. 91
moved for one. The first instance in this record is the
disruptive behavior at the time of formal arraignment, to which the
trial judge alertly and immediately responded by committing Ake for
examination. The trial commenced some two months later, at which
time Ake's attorney withdrew a pending motion for jury trial on
present sanity, and the State offered the testimony of a cellmate
of Ake who said that the latter had told him that he was going to
try to "play crazy." The Court apparently would infer from the fact
that Ake was diagnosed as mentally ill some six months after the
offense that there was a reasonable doubt as to his ability to know
right from wrong when he committed it. But even the experts were
unwilling to draw this inference.
Before holding that the State is obligated to furnish the
services of a psychiatric witness to an indigent defendant who
reasonably contests his sanity at the time of the offense, I would
require a considerably greater showing than this. And even then, I
do not think due process is violated merely because an indigent
lacks sufficient funds to pursue a state law defense as thoroughly
as he would like. There may well be capital trials in which the
State assumes the burden of proving sanity at the guilt phase, or
"future dangerousness" at the sentencing phase, and makes
significant use of psychiatric testimony in carrying its burden,
where "fundamental fairness" would require that an indigent
defendant have access to a court-appointed psychiatrist to evaluate
him independently and -- if the evaluation so warrants --
contradict such testimony. But this is not such a case. It is
highly doubtful that due process requires a State to make available
an insanity defense to a criminal defendant, but, in any event, if
such a defense is afforded, the burden of proving insanity can be
placed on the defendant.
See Patterson v. New York,
432 U. S. 197
(1977). That is essentially what happened here, and Ake failed to
carry his burden under state law. I do not believe the Due Process
Clause superimposes a federal
Page 470 U. S. 92
standard for determining how and when sanity can legitimately be
placed in issue, and I would find no violation of due process under
the circumstances.
With respect to the necessity of expert psychiatric testimony on
the issue of "future dangerousness," as opposed to sanity at the
time of the offense, there is even less support for the Court's
holding. Initially, I would note that, given the Court's holding
that Ake is entitled to a new trial with respect to guilt, there
was no need to reach issues raised by the sentencing proceedings,
so the discussion of this issue may be treated as dicta. But in any
event, the psychiatric testimony concerning future dangerousness
was obtained from the psychiatrists when they were called as
defense witnesses, not prosecution witnesses. Since the State did
not initiate this line of testimony, I see no reason why it should
be required to produce still more psychiatric witnesses for the
benefit of the defendant.
Finally, even if I were to agree with the Court that some right
to a state-appointed psychiatrist should be recognized here, I
would not grant the broad right to
"access to a competent psychiatrist who will conduct an
appropriate examination
and assist in evaluation, preparation,
and presentation of the defense."
Ante at
470 U. S. 83
(emphasis added). A psychiatrist is not an attorney, whose job it
is to advocate. His opinion is sought on a question that the State
of Oklahoma treats as a question of
fact. Since any
"unfairness" in these cases would arise from the fact that the only
competent witnesses on the question are being hired by the State,
all the defendant should be entitled to is one competent opinion --
whatever the witness' conclusion -- from a psychiatrist who acts
independently of the prosecutor's office. Although the independent
psychiatrist should be available to answer defense counsel's
questions prior to trial, and to testify if called, I see no reason
why the defendant should be entitled to an opposing view, or to a
"defense" advocate.
For the foregoing reasons, I would affirm the judgment of the
Court of Criminal Appeals of Oklahoma.