Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and 

Keenan, JJ., and Poff, Senior Justice 

PAUL JOSEF HUSSKE 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 951880 September 13, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 The primary issue we consider in this appeal is whether an 

indigent defendant has made the particularized showing necessary 

to require the Commonwealth, under the Due Process and Equal 

Protection clauses of the Fourteenth Amendment of the federal 

Constitution, to supply at its expense a DNA expert to assist the 

defendant. 

 I. 

 Paul Josef Husske was convicted in a bench trial of breaking 

and entering with intent to commit rape and the offenses of 

forcible sodomy, rape, and robbery. He was sentenced as follows: 

 20 years' imprisonment, suspended after serving 10 years, for 

breaking and entering with the intent to commit rape; 20 years' 

imprisonment, suspended after serving 10 years, for forcible 

sodomy; 40 years' imprisonment, suspended after serving 20 years, 

for rape; and 10 years' imprisonment, suspended after serving 

five years, for robbery. 

 The defendant appealed to the Court of Appeals, and a panel 

of that Court reversed the judgment of the trial court. The 

panel held that the defendant had a constitutional right to the 

appointment of a DNA expert at the Commonwealth's expense to 

assist him, and that the trial court erred by admitting in 
evidence certain statements that the defendant had made to mental 

health workers. Husske v. Commonwealth, 19 Va. App. 30, 448 

S.E.2d 331 (1994). The Court of Appeals granted the 

Commonwealth's petition for a rehearing en banc, vacated the 

panel's judgment, and, by an equally divided Court, affirmed the 

judgment of the trial court. Husske v. Commonwealth, 21 Va. App. 

91, 462 S.E.2d 120 (1995). We awarded the defendant an appeal. 

 II. 

 The victim, a young woman, lived in an apartment complex in 

Henrico County. One night as she was asleep in bed, she was 

awakened by being struck in the face with a hard object. She 

observed that her assailant, who was wearing a stocking over his 

face, was a white male with brown hair. He wore fabric gloves 

and threatened to kill her unless she was quiet. She recognized 

the attacker's voice because, on several earlier occasions, he 

had placed telephone calls to her home and left sexually obscene 

comments recorded on her telephone answering machine. 

 The assailant forced the victim to commit an act of oral 

sodomy upon him. He then placed a knife against her throat, and 

he moved the blade of the knife over her breasts, stomach, and 

toward her genital area. He committed an act of oral sodomy upon 

her and then raped her. 

 The assailant directed the victim "to go to her bathroom and 

shower." She turned on the water, but she did not bathe. The 

assailant took a purse, containing about $500 in cash, from the 

victim's room. 

 After the attacker fled, the victim went to her neighbors' 
apartment. Police officers were summoned, and the victim was 

taken to a hospital where a physical evidence recovery kit was 

prepared. Hospital personnel used swabs to take specimens from 

the victim's mouth, upper thigh, vulva, and vaginal vault. A 

nurse also extracted blood from the victim which, along with the 

specimens, were placed in sealed containers and given to a police 

investigator, who took them to a laboratory for testing. 

 About four months after the victim was assaulted, a Henrico 

County police officer saw the defendant standing near the rear of 

an apartment located about 200 feet from the victim's apartment. 

 The officer arrested the defendant and charged him with two 

"peeping tom" offenses. 

 Two days after his arrest, the defendant voluntarily 

contacted the Henrico County Mental Health and Retardation 

Services offices. An intake referral form was completed, and a 

notation was made on that form that the defendant had been 

referred by an attorney. The form contained a place to mark 

whether the contact was court ordered. A block containing the 

word "no" was marked. 

 On October 17, 1990, Ann C. Creed, an employee of Henrico 

County Mental Health and Retardation Services, completed a "Brief 

Evaluation Form and Client Data Form" for the defendant. Creed 

noted on the form that the defendant was depressed and 

chronically suicidal, and that his condition was exacerbated by 

his arrest on the "peeping tom" charges. The defendant stated 

that even though this was his first arrest on such a charge, he 

had been engaging in this behavior for 20 years and had gone "one 
step further." He told Creed that he felt shame about his 

behavior and that he was "not worried about court involvement but 

[was] concerned over family's reaction to learning of his 

behavior." 

 The defendant appeared in the Henrico County General 

District Court on October 31, 1990, and pled guilty to the 

"peeping tom" offenses. He was sentenced on each charge to 12 

months in jail with 12 months suspended, conditioned upon being 

of good behavior and keeping the peace for five years, and 

monitoring by the Community Diversion Incentive Program. The 

defendant was also required to continue participation in the 

Henrico County Mental Health and Retardation Services treatment 

program as a condition of his suspended sentence. On November 9, 

1990, the defendant met with Dr. Michael Elwood, an employee of 

Henrico County Mental Health and Retardation Services. Dr. 

Elwood and the defendant discussed the defendant's arrest on the 

"peeping tom" charges and the problems the arrest had caused with 

the defendant's marriage. 

 The defendant met with Dr. Elwood on December 28, 1990, for 

"a suicide screening." The defendant had attempted suicide a 

week earlier. Dr. Elwood made arrangements for the defendant to 

be admitted on a voluntary basis to a hospital. The defendant's 

wife, who was present at this meeting, told the defendant that he 

should tell Dr. Elwood "what else was troubling him." The 

defendant's wife left, and Dr. Elwood asked the defendant about 

his wife's comments. The defendant stated that he had attempted 

rapes in the past and that he had "completed a rape." Dr. Elwood 
did not question the defendant about the crimes at that time. 

 The defendant remained in the hospital for a few weeks, and 

Dr. Elwood did not contact him. Dr. Elwood met with the 

defendant on January 17, 1991. During that session, the 

defendant told Dr. Elwood that the defendant had attempted three 

rapes in the midwest and that he had "completed a rape" in the 

Richmond area about six months earlier in the same complex where 

he had been arrested for "peeping." The defendant said that he 

had watched the victim for several days before he raped her, and 

he conveyed to Dr. Elwood the details of his "successful rape." 

The defendant mentioned that he had used a rubber mallet to stun 

his victim, that he had pulled her nightclothes over her head, 

and that he ordered her "to shower" after the attack. Dr. Elwood 

did not insist upon details from the defendant, but listened to 

his statements. 

 Dr. Elwood recommended that the defendant be considered for 

participation in a sexual offenders' group. Subsequently, Dennis 

K. Kilgore and Patricia L. Winterberger, employees of Henrico 

County Mental Health and Retardation Services, evaluated the 

defendant. Dr. Elwood was present and did not observe anyone 

threaten or coerce the defendant during the session. The 

defendant essentially made the same statements about the 

"completed rape" to Kilgore and Winterberger that he had made to 

Dr. Elwood. The defendant's incriminating statements were 

subsequently communicated to the police, and he was arrested and 

charged for these offenses. 

 III. 
 Several months before trial, the defendant filed a motion 

asserting his indigency and requesting that the trial court 

appoint an expert, at the Commonwealth's expense, to help him 

challenge the DNA evidence that the Commonwealth intended to use. 

 The trial court denied the motion. Two months later, the 

defendant renewed his motion for the appointment of an expert. 

He attached an affidavit from an attorney, William T. Linka, who 

had read extensively on the subject of DNA and who held himself 

out as an attorney familiar with issues surrounding the forensic 

applications of DNA technology. Even though the trial court 

denied the defendant's motion, the court appointed Linka as cocounsel to assist the defendant. 

 On the morning of trial, the defendant again asserted that 

he was entitled to the appointment of an independent defense 

expert in the forensic applications of DNA science and 

technology. The trial court informed the defendant's counsel 

that it had appointed Linka to serve as co-counsel for the 

defendant because the defendant's primary counsel had represented 

to the court that Linka was "the most knowledgeable member of the 

local bar in the area of forensic DNA application." The trial 

court denied the defendant's request for the appointment of a DNA 

expert at the Commonwealth's expense. 

 Marion S. Vanti, an employee of the Commonwealth's Division 

of Forensic Science, and Dr. Bruce Spencer Weir, a Professor of 

Statistics and Genetics at North Carolina State University, 

testified at trial for the Commonwealth as expert witnesses on 

the subject of DNA analysis. Both witnesses testified that the 
defendant's DNA profile matched the profile of the individual who 

had attacked the victim. Vanti testified that the DNA analysis 

did not exclude the defendant as a contributor of the genetic 

material that the assailant left on the victim's body and 

clothing. She further stated that the statistical probability of 

randomly selecting a person unrelated to the defendant in the 

Caucasian population with the same DNA profile was 1 in 700,000. 

 Weir also testified that the likelihood of a randomly selected 

Caucasian bearing the same DNA profile as the defendant was 1 in 

700,000. 

 The defendant, relying principally upon Ake v. Oklahoma, 470 

U.S. 68 (1985), asserts that the Due Process and Equal Protection 

clauses of the Fourteenth Amendment required that the trial court 

appoint, at the Commonwealth's expense, an expert to help him 

challenge the Commonwealth's forensic DNA evidence. The 

Commonwealth asserts that the defendant has no constitutional 

right under the Due Process or Equal Protection clauses for the 

appointment, at the Commonwealth's expense, of a DNA expert. 

 In Ake, the Supreme Court considered whether an indigent 

defendant has a constitutional right to a psychiatric examination 

and psychiatric assistance necessary to prepare an effective 

defense based on his mental condition, when his sanity at the 

time he committed the criminal offense is seriously in question. 

 The Court stated: 

 "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." 

Id. at 76. The Supreme Court, holding that an indigent defendant 

is entitled to the appointment of a psychiatrist to assist him in 

his defense, explained its rationale: 

 "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 612. To 

implement this principle, we have focused on 

identifying the 'basic tools of an adequate defense 

. . .' Britt v. North Carolina, 404 U.S. 226, 227 

(1971), and we have required that such tools be 

provided to those defendants who cannot afford to pay 

for them." 

Id. at 77. The Supreme Court concluded that the Due Process 

clause's guarantee of fundamental fairness is implicated 

 "when [an indigent] defendant demonstrates to the trial 

judge that his sanity at the time of the offense is to 

be a significant factor at trial, [and that in such 

circumstances] 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." 

Id. at 83. 

 In Caldwell v. Mississippi, 472 U.S. 320 (1985), the Supreme 

Court noted that a trial court had properly denied an indigent 
defendant's requests for the appointment of a criminal 

investigator, a fingerprint expert, and a ballistics expert, and 

also that the Supreme Court of Mississippi properly affirmed the 

trial court's decision because the defendant's requests were 

accompanied by no showing of reasonableness. The Supreme Court 

stated: 

 "[T]he defendant's request for a ballistics expert 

included little more than 'the general statement that 

the requested expert "would be of great necessarius 

witness."' . . . Given that petitioner offered little 

more than undeveloped assertions that the requested 

assistance would be beneficial, we find no deprivation 

of due process in the trial judge's decision. . . . We 

therefore have no need to determine as a matter of 

federal constitutional law what if any showing would 

have entitled a defendant to assistance of the type 

here sought." 

Id. at 323 n.1. 

 Our research reveals that most courts which have considered 

the question whether an indigent defendant is entitled to the 

appointment of a non-psychiatric expert have applied the 

rationale articulated in Ake, and, those courts have held that 

the Due Process and Equal Protection clauses require the 

appointment of non-psychiatric experts to indigent defendants 

depending upon whether the defendants made a particularized 

showing of the need for the assistance of such experts. See, 

e.g., Little v. Armontrout, 835 F.2d 1240, 1243-44 (8th Cir. 

1987), cert. denied, 487 U.S. 1210 (1988); Moore v. Kemp, 809 

F.2d 702, 709-12 (11th Cir.), cert. denied, 481 U.S. 1054 (1987); 

Thornton v. State, 339 S.E.2d 240, 241 (Ga. 1986); Harrison v. 

State, 644 N.E.2d 1243, 1252-53 (Ind. 1995); Kennedy v. State, 

578 N.E.2d 633, 639-40 (Ind. 1991), cert. denied, 503 U.S. 921 
(1992); State v. Coker, 412 N.W.2d 589, 592-93 (Iowa 1987); Polk

v. State, 612 So.2d 381, 393-94 (Miss. 1992); State v. Moseley, 

449 S.E.2d 412, 424-25 (N.C. 1994), cert. denied, ___ U.S. ___, 

115 S.Ct. 1815 (1995); State v. Mills, 420 S.E.2d 114, 117-19 

(N.C. 1992); Rogers v. State, 890 P.2d 959, 966-67 (Okla. Crim. 

App. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 312 (1995); 

State v. Edwards, 868 S.W.2d 682, 697-98 (Tenn. Crim. App. 1993); 

Rey v. State, 897 S.W.2d 333, 337-38 (Tex. Crim. App. 1995). 

 We are of opinion that Ake and Caldwell, when read together, 

require that the Commonwealth of Virginia, upon request, provide 

indigent defendants with "the basic tools of an adequate 

defense," Ake, 470 U.S. at 77, and, that in certain instances, 

these basic tools may include the appointment of non-psychiatric 

experts. This Due Process requirement, however, does not confer 

a right upon an indigent defendant to receive, at the 

Commonwealth's expense, all assistance that a non-indigent 

defendant may purchase. Rather, the Due Process clause merely 

requires that the defendant may not be denied "an adequate 

opportunity to present [his] claims fairly within the adversary 

system." Ross v. Moffitt, 417 U.S. 600, 612 (1974). 

 Moreover, an indigent defendant's constitutional right to 

the appointment of an expert, at the Commonwealth's expense, is 

not absolute. We hold that an indigent defendant who seeks the 

appointment of an expert witness, at the Commonwealth's expense, 

must demonstrate that the subject which necessitates the 

assistance of the expert is "likely to be a significant factor in 

his defense," Ake, 470 U.S. at 82-83, and that he will be 
prejudiced by the lack of expert assistance. Id. at 83. An 

indigent defendant may satisfy this burden by demonstrating that 

the services of an expert would materially assist him in the 

preparation of his defense and that the denial of such services 

would result in a fundamentally unfair trial. See State v. 

Mills, 420 S.E.2d at 117. The indigent defendant who seeks the 

appointment of an expert must show a particularized need: 

 "'Mere hope or suspicion that favorable evidence is 

available is not enough to require that such help be 

provided.' . . . 'This particularized showing demanded 

. . . is a flexible one and must be determined on a 

case-by-case basis.' . . . The determination . . . 

whether a defendant has made an adequate showing of 

particularized necessity lies within the discretion of 

the trial judge." 

Id. Accord Caldwell, 472 U.S. at 323-34 n.1. 

 Contrary to the Commonwealth's arguments, we have not 

specifically held that Ake is implicated only in those cases 

where the defendant's sanity at the time he committed an offense 

is seriously in question. In Pope v. Commonwealth, 234 Va. 114, 

360 S.E.2d 352 (1987), cert. denied, 485 U.S. 1015 (1988), we 

rejected an indigent defendant's contention that he had a 

constitutional right to the appointment, at the Commonwealth's 

expense, of a private investigator. There, we held that the 

trial court properly denied the defendant's motion "to appoint an 

investigator to 'comb the neighborhood' for potential witnesses." 

Id. at 119, 360 S.E.2d at 356. 

 Although in Pope we rejected the defendant's argument that 

he was entitled to relief in accord with Ake, we relied upon 

Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), 
cert. denied, 475 U.S. 1099 (1986), in reaching our conclusion. 

In Watkins, we held that consistent with the decisions of the 

United States Supreme Court, the mere "fact that a particular 

service might be of benefit to an indigent defendant does not 

mean that the service is constitutionally required." Id. at 478, 

331 S.E.2d at 430 (quoting Ross v. Moffitt, 417 U.S. 600, 616 

(1974)). Thus, in Pope and Watkins, the indigent defendants 

failed to make the requisite particularized showing of the need 

for the requested expert assistance. 

 Here, we are of opinion that the trial court did not err by 

refusing to appoint a DNA expert witness to assist Husske with 

the preparation of his defense.* As we previously stated, an 

indigent defendant who seeks the appointment of an expert, at the 

Commonwealth's expense, must show a particularized need for such 

services and that he will be prejudiced by the lack of expert 

assistance. The defendant failed to meet these requirements. At 

best, the defendant asserted, inter alia, that: DNA evidence is 

"of a highly technical nature;" he thought it was difficult for a 

lawyer to challenge DNA evidence without expert assistance; and 

he had concerns about the use of DNA evidence because "the 

Division of Forensic Science [was] no longer [conducting] 

 

 *We do not consider the defendant's contention that his 

Sixth Amendment rights of confrontation and compulsory process 

were abridged. The defendant did not make these arguments in the 

trial court, and we will not consider them here. Rule 5:25. 

Additionally, in view of our holding, we need not consider 

defendant's assertion that the trial court abridged his Sixth 

Amendment right to effective assistance of counsel by refusing to 

appoint an expert to assist him with the preparation of his DNA 

defense. 
paternity testing in [c]riminal cases." The defendant's 

generalized statements in his motions simply fail to show a 

particularized need. 

 Additionally, the defendant failed to demonstrate that he 

would be prejudiced by the lack of expert assistance. Indeed, he 

could not make such a showing because, as the evidence of record 

reveals, he confessed to the crimes, and he described the details 

of his offenses with great specificity. 

 We emphasize that the Due Process and Equal Protection 

clauses do not require the appointment, at the Commonwealth's 

expense, of an expert witness for every indigent defendant. As 

the United States Court of Appeals for the 11th Circuit has 

stated: 

 "Requiring trial courts, both state and federal, to 

provide for expert assistance--through direct 

appointment or a grant of funds--would place a 

substantial, if not onerous, burden on the 

administration of criminal justice. For example, the 

trial court would have to (1) appoint a defense expert 

for every expert available to the government; (2) 

provide for expert assistance whether or not such 

assistance turned out to be needed; and (3) provide for 

any additional experts the appointed experts might need 

to explore theories that could aid the defense in 

cross-examining prosecution witnesses or in presenting 

the defense's case. We question the wisdom of such due 

process requirements absent a substantial showing, such 

as the one made in Ake, of a significant benefit to the 

truth-seeking function of a trial." 

Moore, 809 F.2d at 712 n. 8. 

 IV. 

 The defendant argues that the trial court erred by failing 

to suppress his "incriminating statements made to mental health 

workers during the course of court-ordered therapy," and that the 
use of "evidence derived therefrom, violated due process and his 

Fifth and Fourteenth Amendment rights against compulsory selfincrimination." As we previously mentioned, the defendant 

voluntarily enrolled in the Henrico County Mental Health and 

Retardation Services treatment program before he was convicted of 

the "peeping tom" offenses. The general district court, which 

convicted him of these offenses, suspended imposition of the 

sentences conditioned upon his continued participation in this 

program. The defendant says that his "admissions to his mental 

health worker were coerced by the necessity of his complying with 

the terms of his suspended sentences. The alternative to 

incriminating himself was the imposition of a twenty-four (24) 

month jail sentence." We disagree with the defendant. 

 The Fifth Amendment of the federal Constitution states, in 

relevant part, that no person "shall be compelled in any criminal 

case to be a witness against himself." This prohibition "not 

only protects the individual against being involuntarily called 

as a witness against himself in a criminal prosecution but also 

privileges him not to answer official questions put to him in any 

other proceeding, civil or criminal, formal or informal, where 

the answers might incriminate him in future criminal 

proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). 

 The Fifth Amendment, however, only prohibits the use of a 

witness' statements which are the product of compulsion: 

 "The [Fifth] Amendment speaks of compulsion. It does 

not preclude a witness from testifying voluntarily in 

matters which may incriminate him. If, therefore, he 

desires the protection of the privilege, he must claim 

it or he will not be considered to have been 

'compelled' within the meaning of the Amendment." 
Minnesota v. Murphy, 465 U.S. 420, 427 (1984) (quoting United 

States v. Monia, 317 U.S. 424, 427 (1943)). The Supreme Court 

has stated that 

 "in the ordinary case, if a witness under compulsion to 

testify makes disclosures instead of claiming the 

privilege, the government has not 'compelled' him to 

incriminate himself. . . . Witnesses who failed to 

claim the privilege were once said to have 'waived' it, 

but we have recently abandoned this 'vague term,' . . . 

and 'made clear that an individual may lose the benefit 

of the privilege without making a knowing and 

intelligent waiver.'" 

465 U.S. at 427-28. 

 In Murphy, the Supreme Court considered whether the Fifth 

and Fourteenth Amendments prohibit the introduction in evidence 

of incriminating statements that a parolee made during a meeting 

with his probation officer. In 1974, Marshall Murphy was 

questioned by police concerning the rape and murder of a teenage 

girl. In 1980, Murphy pleaded guilty to an unrelated criminal 

charge. His punishment was fixed at 16 months' imprisonment, 

which was suspended, and three years' probation. As conditions 

of probation, Murphy was required to participate in a treatment 

program for sexual offenders, to report to his probation officer 

as directed, and to be truthful with the probation officer "in 

all matters." Murphy was informed that if he failed to comply 

with these conditions, his suspension could be revoked. Id. at 

422. 

 Murphy met with his probation officer regularly until July 

1981, when the probation officer learned that Murphy had ceased 

participation in the sexual offenders' treatment program. The 
probation officer informed Murphy by letter that his failure to 

meet with her would result in an immediate request for a warrant. 

 Subsequently, a counselor in the sexual offender treatment 

program informed Murphy's probation officer that, during the 

course of treatment, Murphy had admitted that he had committed a 

rape and murder in 1974. The probation officer met with her 

supervisor, and the probation officer decided that she would 

convey this information to the police. The probation officer 

sent a letter to Murphy and asked him to contact her to discuss a 

treatment plan for the rest of his probationary period. Even 

though the probation officer did not contact the police before 

she met with Murphy, she had decided before the meeting that she 

would report any incriminating statements he made to her to the 

police. Id. at 423. 

 Subsequently, Murphy met with the probation officer in her 

office. The probation officer told Murphy that she had learned 

that he had admitted to having committed a rape and murder in 

1974 and that this information indicated to her that he needed 

additional treatment. Murphy admitted to the probation officer 

that he had committed the rape and murder. The probation officer 

informed Murphy that she intended to relay the information to the 

police, and she encouraged him to turn himself in, which he 

refused to do. Subsequently, Murphy was arrested and convicted 

of first-degree murder. Id. at 423-25. 

 Rejecting Murphy's contention that his confession was the 

product of compulsion and, thus, inadmissible, the Supreme Court 

stated: 
 "The threat of punishment for reliance on the 

privilege [against self-incrimination] distinguishes 

cases of this sort from the ordinary case in which a 

witness is merely required to appear and give 

testimony. A State may require a probationer to appear 

and discuss matters that affect his probationary 

status; such a requirement, without more, does not rise 

to a self-executing privilege. The result may be 

different if the questions put to the probationer, 

however relevant to his probationary status, call for 

answers that would incriminate him in a pending or 

later criminal prosecution. There is thus a 

substantial basis in our cases for concluding that if 

the State, either expressly or by implication, asserts 

that invocation of the privilege would lead to 

revocation of probation, it would have created the 

classic penalty situation, the failure to assert the 

privilege would be excused, and the probationer's 

answers would be deemed compelled and inadmissible in a 

criminal prosecution. 

 Even so we must inquire whether Murphy's probation 

conditions merely required him to appear and give 

testimony about matters relevant to his probationary 

status or whether they went further and required him to 

choose between making incriminating statements and 

jeopardizing his conditional liberty by remaining 

silent. Because we conclude that Minnesota did not 

attempt to take the extra, impermissible step, we hold 

that Murphy's Fifth Amendment privilege was not selfexecuting." 

Id. at 435-36 (footnote omitted). 

 Applying the aforementioned principles here, we hold that 

Husske's statements were not the product of compulsion and, thus, 

his Fifth Amendment right against self-incrimination was not 

violated. First, we note that the defendant's obligation to 

participate in the mental health treatment program did not in 

itself convert his "otherwise voluntary statements into compelled 

ones." Id. at 427. We also observe that the defendant, just as 

in Murphy, was not in custody for purposes of receiving Miranda

protection when he made his incriminating statements. Id. at 

430. 
 Here, just as in Murphy, no one required Husske "to choose 

between making incriminating statements and jeopardizing his 

conditional liberty by remaining silent." Id. at 436. The 

record before us is devoid of any evidence that the employees of 

Henrico County Mental Health and Retardation Services coerced the 

defendant in any manner. There is no evidence of record that 

anyone forced the defendant to talk or threatened him in any way. 

 To the contrary, the defendant, at the urging of his wife, 

volunteered to Dr. Elwood the statement that the defendant had 

"completed a rape." After the defendant made his confessions, he 

executed a release authorizing Henrico County Mental Health and 

Retardation Services to transmit this information to the 

Community Diversion Incentive Program. 

 V. 

 For the foregoing reasons, we will affirm the judgment of 

the Court of Appeals. 

Affirmed. 

SENIOR JUSTICE POFF, concurring in part and dissenting in part. 

 The majority affirms the judgment of the Court of Appeals 

sitting en banc, Husske v. Commonwealth, 21 Va. App. 91, 462 

S.E.2d 120 (1995). Under the mandate of that judgment, the 

earlier judgment and mandate of a panel of that Court, Husske v. 

Commonwealth, 19 Va. App. 30, 448 S.E.2d 331 (1994), were 

"withdrawn" and "vacated", and the judgment of the trial court 

was "affirmed", 21 Va. App. at 92, 462 S.E.2d at 120. 

 On the Fifth Amendment self-incrimination issue, I concur 

with the decision of the majority to apply the rule in Minnesota 
v. Murphy, 465 U.S. 420 (1984). I dissent from the majority's 

decision upholding the denial of Husske's request for expert 

assistance concerning the controversy over the reliability of 

forensic DNA evidence that prevailed at the time of this trial. 

I do not, however, advocate a per se rule applicable in every 

prosecution of an indigent defendant.1

 In Ake v. Oklahoma, 470 U.S. 68 (1985), the Supreme Court, 

invoking the principles applied in Griffin v. Illinois, 351 U.S. 

12 (1956) and in Britt v. North Carolina, 404 U.S. 226 (1971), 

held that the due process and equal protection clauses of the 

Fourteenth Amendment require a State to provide "the basic tools 

of an adequate defense . . . to those defendants who cannot 

afford to pay for them." 470 U.S. at 77. The panel of the Court 

of Appeals held that the rule in Ake is not limited to capital 

murder prosecutions or to cases involving an insanity defense. I 

agree. The majority of this Court does not disagree. 

 The Ake rule applies, however, only when the defendant makes 

a "threshold showing" that the assistance of an expert to 

confront the prosecution will be "a significant factor at trial". 

 470 U.S. at 83. In satisfying that requirement, the defendant's 

 

 1Compare the facts and circumstances underlying the 

conclusions reached in the precedents of this Court in Stewart v. 

Commonwealth, 245 Va. 222, 239, 427 S.E.2d 394, 405, cert.

denied, 510 U.S. 848, 114 S. Ct. 143 (1993); George v. 

Commonwealth, 242 Va. 264, 271, 411 S.E.2d 12, 16 (1991), cert.

denied, 503 U.S. 973 (1992); O'Dell v. Commonwealth, 234 Va. 672, 

686, 364 S.E.2d 491, 499, cert. denied, 488 U.S. 871 (1988); 

Townes v. Commonwealth, 234 Va. 307, 332, 362 S.E.2d 650, 664 

(1987), cert. denied, 485 U.S. 971 (1988); Pope v. Commonwealth, 

234 Va. 114, 119, 360 S.E.2d 352, 356 (1987), cert. denied, 485 

U.S. 1015 (1988). See also Moore v. Kemp, 809 F.2d 702, 712 n. 8 

(11th Cir.), cert. denied, 481 U.S. 1054 (1987). 
burden is twofold. The accused must demonstrate that the expert 

is required to address a critical issue and that the expert's 

assistance will contribute to the formulation and perfection of a 

viable defense. In response to such a showing, "the State must, 

at a minimum, assure the defendant access to [an expert] who will 

. . . assist in evaluation, preparation, and presentation of the 

defense." Id. 

 The majority of this Court holds that the Commonwealth had 

no such duty here because, they conclude, Husske failed to "show 

a particularized need and that he [would] be prejudiced by the 

lack of expert assistance." My reading of the record compels the 

opposite conclusion. 

 Husske made five "threshold" motions for expert assistance. 

 Their cumulative effect was sufficient to show the trial judge 

that expert knowledge was to become "a significant factor at 

trial." 

 In the first motion, counsel advised the court that "[t]he 

Commonwealth intends to introduce . . . the evidence of DNA 

analysis" which he characterized as "crucial to the 

Commonwealth's case." In support of the second motion, he filed 

the affidavit of an adjunct counsel, a practicing attorney 

reputed to be the most knowledgeable member of the local bar in 

the area of forensic DNA application. The affiant opined that 

"it is impossible for a lay person to successfully challenge the 

DNA testing and results without the aid of an expert." He 

explained that he was "concerned about the problems in testing 

degraded, low molecular weight forensic samples" and by "over 100 
possible problem areas in the use of restrictive enzymes that 

could lead to an erroneous inclusion." 

 In preparation for the third request for assistance, counsel 

filed a motion for discovery of the Commonwealth's DNA evidence 

which resulted in disclosure of "all the protocols, copies of the 

autorads, as well as a 47-page Certificate of Analysis." In 

support of the fourth and fifth motions for assistance, counsel 

pursued the arguments he had advanced earlier. 

 Renewing the motion at the conclusion of the Commonwealth's 

evidence, he proffered some 400 pages of court opinions and 

testimony "taken in various other cases" that dramatized the 

nature and dimensions of the DNA dispute prevalent at that time 

in the scientific community2. A sampling of the expert testimony 

adduced in those cases reveals that, in the two years preceding 

Husske's trial, many learned scientists had concluded that 

portions of the DNA testing procedure were "badly flawed," 

"unreliable" and "demonstrably wrong." And, at least one expert 

characterized the scientific debates as "significant and 

honestly-held disagreement" over the validity of testing 

techniques. 

 Clearly, the Commonwealth's forensic DNA evidence was a 

critical issue because it was "a significant factor" in the 

identification of Husske as the criminal agent. Hence, the 

prevailing scientific controversy created a "particularized need" 

to challenge the laboratory methodology employed in the DNA 

 

 2Although the items proffered were excluded from evidence, 

they were admitted as exhibits for the record. 
analysis, the validity of the conclusions reached by the 

analysts, and the testimony of the Commonwealth's expert 

witnesses. Knowledgeable as they were in the law, Husske's 

attorneys were laymen in the science of forensic chemistry, and 

as an indigent accused, Husske was prejudiced by his inability to 

obtain the expert assistance necessary to satisfy that need. 

 Consequently, under the facts of this case, the denial of 

the defense motions for expert assistance was a denial of 

Husske's rights under the Fourteenth Amendment to due process and 

equal protection of the laws.