PEOPLE v KENNEDY Docket No. 154445. Argued on application for leave to appeal D ecember 6, 2017. Decided June 29, 2018. Johnny R. Kennedy was convicted following a jury trial in the Wayne Circuit Court, Craig S. Strong, J., of first-degree premeditated murder. In N ovember 1993, the body of Tanya Harris was discovered in an abandoned building in Detroit. The cause of death was strangulation. Attempts to find H arris’s murderer stalled for nearly two decades until 2011, when various swabs taken from Harris’s body were tested. The s wab from Harris’s left fingernail included a mixture of DNA profiles—from Harris and t hree male donors. Defendant’s DNA profile matched the major donor’s. Vaginal and rectal swab s taken from Harris also matched defendant’s DNA profile. By this time, defendant was a lready incarcerated for having admitted to strangling another woman in 1996 under similar circ umstances. Defendant was charged with Harris’s murder, a nd defense counsel requested the appointment of Brian Zubel as a DNA expert to help understand the evidence, although counsel did not expect Zubel would testify at trial. The court den ied defendant’s request, and de fendant was convicted. Defendant appealed, arguing that the trial court’s denial of his motion t o appoint an expert violated his constitutional right to presen t a defense. In an unpublished p er curiam opinion issued July 26, 2016, the Court of Appeals, M URRAY , P.J., and R IORDAN , J. (S TEPHENS , J., dissenting), affirmed defendant’s conviction and found no abuse of discretion or cons titutional error in the trial court’s denial of defendant’s request for an expert. The majority note d that defendant did not provide enough evidence that an expert would have aided the defense, as required by MCL 775.15 and People v Tanner , 469 Mich 437 (2003), nor did defendant raise any specific con cerns with the evidence. The dissent concluded that the trial court’s refusal to appoint an expert violated defendant’s due-process rights because defendant could not know the inherent concerns with the DNA evidence without an expert’s assistance. Defendant sought leave to appeal, and the Supreme Court ordered and heard oral argument on whether to gra nt the application or take other action. 500 Mich 978 (2017). In a unanimous opinion by Justice V IVIANO , the Supreme Court, in lieu of granting leave to appeal, held : The due-process analysis set forth in Ake v Oklahoma , 470 US 68 (1985), governs the issue whether a criminal defendant is entitled to the appointme nt of an expert witness at government expense; because MCL 775.15 does not encompass reque sts by an indigent criminal Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement This syllabus constitutes no part of the opinion of the Court b ut has been prepared by the Reporter of Decisi ons for the convenience of th e reader. Reporter of Decisions: Kathryn L. Loomisdefendant for the appointment of an expert at government expens e, People v Jacobsen , 448 Mich 639 (1995), and People v Tanner , 469 Mich 437 (2003), were overruled to the extent that they held or suggested to the contrary; the reasonable-probability s tandard set forth in Moore v Kemp , 809 F2d 702 (CA 11, 1987), is the appropriate standard for cour ts to apply in determining whether an indigent criminal defendant has made a sufficient sh owing to be entitled to expert assistance at government expense under Ake ’s due-process analysis.

1. In Ake , the United States Supreme Cour t set forth the due-process ana lysis that a court must follow when an indigent criminal defendant claims he or sh e has not been provided the basic tools of an adequate defense and therefore has not been g iven an adequate opportunity to present his or her claims fairly within the adversarial system. Ake ’s due-process analysis considers: (1) the private interest that will be affected by th e action of the state, (2) the governmental interest that will be affected if the safeguard is to be provided, a nd (3) the probable value of the additional or subst itute procedural safeguards tha t are sought, and the risk of an erroneous deprivation of the aff ected interest if those safegua rds are not provided. Ake applied this analysis in the context of a request for the assistance of a psychiatric expert in order to present an insanity defense and held that when a defendant demo nstrates to the trial judge that his sanity at the time of the offense is to be a significant fa ctor at trial, the state must, at a minimum, assure the defendant access to a competent psychiatris t who will conduct an appropriate examination and assi st in the evaluation, preparati on, and presentation of the defense. However, Ake ’s due-process analysis is not lim ited to psychiatric experts o r capital cases. Accordingly, Ake ’s due-process analysis governs th e issue whether a criminal de fendant is entitled to the appointment of an expert witness at governme nt expense. 2. MCL 775.15, which provides a means for subpoenaing certain witnesses and for paying their cost of attending trial, does not, by its express terms, provide for the appointment of expert witnesses. Moreover, M CL 775.15 falls short of the cons titutional standard set forth in Ake , which clearly requires the assistance of an expert in conduct ing an appropriate examination and in the evaluation, prepara tion, and presentation of the def ense. However, Jacobsen and Tanner relied on MCL 775.15 to hold that a defendant must show a nexu s between the facts of the case and the need for an expert and that without an indicat ion that expert testimony would likely benefit the defense, it was not error to deny without pr ejudice the motion for appointment of an expert witness. While both Jacobsen and Tanner applied MCL 775.15, neither opinion specifically addressed whether that statute was applicable to r equests by an indigent defendant for the appointment of an expert. Additionally, neither opinio n cited Ake or applied its dueprocess framework in determining whether a trial court should g rant a request by an indigent criminal defendant for the appointment of an expert witness, no r did either opinion attempt to distinguish Ake . Because the Legislature did not intend MCL 775.15 to encompa ss requests by an indigent criminal defendant f or the appointment of an expert at government expense, Jacobsen and Tanner were overruled to the extent that they held or suggested to th e contrary. Therefore, the Court of Appeals erred by analyzing defendant’s request for expert assistance under MCL 775.15 instead of Ake

. 3. In Moore , the United States Court of Appeals for the Eleventh Circuit s et forth a reasonable-probability standard for determining whether an indi gent criminal defendant is entitled to the appointment of a n expert at government expense under Ake ’s due-process analysis. Moore ’s reasonable-probability standard requires a defendant to show the trial court that thereexists a reasonable probability b oth that an expert would be of assistance to the defense and that denial of expert assis tance would result in a fundamentally unf air trial. The standard articulated in Moore strikes the right balance betw een requiring too much or too li ttle of a defendant seeking the appointment of an expert under Ake and therefore was adopted as the appropriate standard for Michigan courts to apply. Accordingly, in order to obtain an e xpert at government expense under Ake ’s due-process analysis, a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistan ce to the defense and that denial of expert assistance would result i n a fundamentally unfair trial. Court of Appeals’ opinion vacate d; case remanded to the Court of Appeals for application of Ake ’s due-process analysis and Moore ’s reasonable-pr obability standard.

©2018 State of MichiganFILED June 29, 2018

S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 154445 JOHNNY RAY KENNEDY, Defendant-Appellant.

BEFORE THE ENTIRE BENCH

V IVIANO , J. In this case, defendant claims that the trial court violated hi s constitutional right to present a defense when it denied his request to appoint a DNA e xpert. The Court of Appeals disagreed, holding that the trial court did not abuse i ts discretion when it determined that defendant failed to show that expert testimony would benefit his defense, Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement2 as required by MCL 775.15 and People v Tanner

. 1 We take this opportunity to clarify that MCL 775.15 does not apply in this context; instead, we hol d—as we must—that Ake

v Oklahoma 2 is the controlling law. And, to assist trial courts in determ ining whether a defendant has made a sufficien t showing to be entitled to exper t assistance under Ake , we adopt the reasonable probability standard from Moore v Kemp

. 3 Accordingly, in lieu of granting leave to appeal, we vacate the Court of Appeals’ decision and remand to that C ourt for further p roceedings.

I. FACTS AND PROCEDURAL HISTORY In November 1993, the body of Tan ya Harris was discovered in an abandoned building in Detroit. The cause of death was strangulation. At tempts to find Harris’s murderer stalled for nearly two d ecades until 2011, when variou s swabs taken from Harris’s body were tested. The swab from Harris’s left fingern ail included a mixture of DNA profiles—from Harris and three male donors. Defendant’s DN A profile matched the major donor’s. Vaginal and rectal swabs taken from Harris also matched defendant’s DNA profile. By this time, defendant was already incarcerated for having admitted to strangling another woman in 1996 under similar circumstances. Defendant was charged with Harris’s murder. Defense counsel re quested the appointment of Brian Zubel as a DNA expert to help understand t he evidence, although

1 People v Tanner , 469 Mich 437; 671 NW2d 728 (2003).

2 Ake v Oklahoma , 470 US 68; 105 S Ct 1087; 84 L Ed 2d 53 (1985).

3 Moore v Kemp , 809 F2d 702 (CA 11, 1987).3 counsel did not expect Zubel wou ld testify at trial. Specifica lly, defense counsel noted that the DNA evidence “poses an especially technical and comple x range of issues for defense counsel, as the essence of the prosecutions’ [sic] case is the presentation of a report from a qualified technician or scientist.” In order to provide effective assistance and zealously confront the witnesses a nd evidence called in the pro secution’s case in chief, [defense counsel ] must be educated . . . in the science and accepted protocols of DNA extrac tion, preservation, testing, as well as the dangers of contamination and the steps and measures taken to do cument a particular test, and to maintain the proper calibration of test ing equipment.

The court denied defendant’s request, stating: “I’m not going t o appoint him for that. You can talk to him[;] you can read up on him and go to the con ference which all the rest of us have done that[.]” 4 A jury ultimately convicted defendant of first-degree premedita ted murder. Defendant appealed, arguing that the trial court’s denial of hi s motion to appoint an expert violated his constitutional right to present a defense. The Court of Appeals, in a split opinion, affirmed his convi ction and found no abuse of di scretion or constitutional error in the trial court’s denial of defendant’s request for an expert. 5 The majority noted

4 A few days before oral argument in this Court, the parties fil ed a stipulation to expand the record in which defense counsel averred that he sought out, at personal expense, Mr. Zubel and obtained some limited ex pert assistance regarding the DNA evidence presented in this case. On remand, the parties may argue the e ffect of this stipulation on defendant’s claim that the trial court’s denial of his motion f or the appointment of an expert violated his constitutiona l right to present a defense.

5 People v Kennedy , unpublished per curiam opinion of the Court of Appeals, issue d July 26, 2016 (Docket No . 323741), p 8.4 that defendant did not provide enough evidence that an expert w ould have aided the defense, nor did defendant raise any specific concerns with the evidence. 6 In dissent, Judge S TEPHENS argued that the majority’s analysis “begs the question of why d efendant would need an expert” because “ defendant does not know the inhe rent concerns with DNA evidence or all the ways in which it may be flawed without an expert to bring those issues to light.” 7 Thus, the dissent concluded that the trial court’s refusal to appoint an expert violated defendant’s due process rights. 8 This Court ordered oral argument on the application, directing the parties to file supplemental briefing “addressing whether the trial court abuse d its discretion under MCL 775.15 and/or violated the defendant’s constitutional right to present a defense when it denied his request to appoint a DNA expert.” 9

II. STANDARD OF REVIEW This Court reviews de novo a question of constitutional law. 10 The interpretation and application of statutes pres ent questions of law that are a lso reviewed de novo. 11

6 Id . at 7.

7 Id . (S TEPHENS , J., dissenting) at 2.

8 Id . at 1.

9 People v Kennedy , 500 Mich 978 (2017).

10 People v Smith , 498 Mich 466, 475; 870 NW2d 299 (2015) (“A due process violat ion presents a constitutiona l question that this Court reviews de n ovo.”).

11 People v Zajaczkowski , 493 Mich 6, 12; 825 NW2d 554 (2012).5 III. ANALYSIS

We must first determine what law applies to defendant’s claim t hat the trial court violated his due process rights when it denied his request for the appointment of a DNA expert. Then we consider what showing defendant must make to b e entitled to the appointment of the expert.

A. AKE v OKLAHOMA: THE DUE PROCESS RIGHT TO THE BASIC TOOLS OF ADEQUATE DEFENSE

In Ake v Oklahoma , 12 the Supreme Court addressed “whether the Constitution requires that an indigent defendant have access to the psychiat ric examination and assistance necessary to prepare an effective defense based on h is mental condition, when his sanity at the time of the offense is seriously in question. ” 13 The Court began its analysis with an overview o f the law in this area: This Court has long recognized tha t when a State brings its jud icial power to bear on an indigent defendant in a criminal proceeding , it must take steps to assure that the de fendant has a fair opportunity to present his defense. This elementary princip le, grounded in significant pa rt on the Fourteenth Amendment’s due process guarantee of fundamental fai rness, derives from the belief that jus tice cannot be equal where, sim ply as a result of his poverty, a defendant is denied the opportunity to partic ipate meaningfully in a judicial proc eeding in which his liberty is a t stake. [14]

After reviewing several of its p recedents affording various rig hts to indigent criminal defendants, the Court observed that

12 Ake , 470 US 68.

13 Id . at 70.

14 Id . at 76.6 [m]eaningful access to justice ha s 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 functio ning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds ag ainst an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. Th us, while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthie r counterpart might buy, it has often reaffirmed that fundamental fairness entitles indigent defendan ts to an adequate opportunity to present their claims fairly within the adversarial system. To implement this princ iple, we have focused on identi fying the basic tools of an adequate defense or appeal, and we have requi red that such tools be provided to those defendants who cannot afford to pay for them. [15]

Turning to the issue presented—i.e., “whether, and under what c onditions, the participation of a psychiatrist is important enough to preparat ion of a defense to require the State to provide an indigent defendant with access to compe tent psychiatric assistance in preparing the defense” 16 —the Court considered the three-factor due process test set forth in Mathews v Eldridge 17 : (1) “the private interest that will be affected by the action of the State,” (2) “the governmental interest that will be affe cted if the safeguard is to be provided,” and (3) “the probable value of the additional or sub stitute procedural safeguards that are sought, and the risk of an erroneous depriv ation of the affected interest if those safegu ards are not provided.” 18

15 Id . at 77 (quotation marks and citations omitted).

16 Id

.
17 Mathews v Eldridge , 424 US 319, 335; 96 S Ct 8 93; 47 L Ed 2d 18 (1976).

18 Ake , 470 US at 77.7 The Court made quick work of the first two factors. In relatio n to the first, it observed that “[t]he private inte rest in the accuracy of a crim inal proceeding that places an individual’s life or liberty at risk is almost uniquely comp elling.” 19 Thus, the Court concluded that “[t]he interest of the individual in the outcome of the State’s effort to overcome the presumption of innoc ence is obvious and weighs hea vily in our analysis.” 20 Next, considering the interest of the State, the Court noted th at it was unpersuaded by Oklahoma’s argument that providing Ake with psychiatric assistan ce would result in a staggering financial burden to the state. 21 The Court then observed that “it is difficult to identify any [other] interest of the State . . . that weighs ag ainst recognition of this right,” 22 and the Court explained that [t]he State’s interest in preva iling at trial—unlike that of a private litigant— is necessarily tempered by its interest in the fair and accurat e adjudication of criminal cases. Thus, also u nlike a private litigant, a Sta te may not legitimately assert an interest i n maintenance of a strategic a dvantage over the defense, if the result of that advantage is to cast a pall on the accuracy of the verdict obtained. [23]

19 Id . at 78.

20 Id

.

21 Id

.

22 Id . at 79.

23 Id

.8 Thus, the Court concluded that “ the governmental interest in de nying Ake the assistance of a psychiatrist is not substantial, in light of the compellin g interest of both the State and the individual in accurate dispositions.” 24 Finally, the Court “inquire[d] into the probable value of the p sychiatric assistance sought, and the risk of error in the proceeding if such assista nce is not offered.” 25 The Court explained: We begin by considering the pivo tal role that psychiatry has co me to play in criminal proceedings. More than 40 States, as well as the F ederal Government, have decided either through legislation or judicial decision that indigent defendants are en titled, under certain circumstan ces, to the assistance of a psychiatrist’s expertise. For example, in subs ection (e) of the Criminal Justice Act, 18 USC § 3006A, Congress has provided that indigent defendants shall receive the assistance of all experts “necessary for an adequate defense.” Numerous state statutes guarantee reimbu rsement for expert services under a like standard. And in many States that have not assured access to psychiatrists t hrough the legislative process , state courts have interpreted the State or Federal Constitution to require t hat psychiatric assistance be provided to indigent defendants when necessary fo r an adequate defense, or when insanity is at issue. These statutes and court decisions reflect a reality that we re cognize today, namely, that when the State has made the defendant’s men tal condition relevant to his crimin al culpability and to the punis hment he might suffer, the assistance of a psychiatrist may well be cruc ial to the defendant’s ability to marshal his defense. In this role, psyc hiatrists gather facts, through professional exam ination, interviews, and elsewh ere, that they will share with the judge or jury; they analyze the inform ation gathered and from it draw plausib le conclusions about the defen dant’s mental condition, and about the e ffects of any disorder on beha vior; and they offer opinions about how the defendant’s mental condition might have

24 Id

. 25 Id

.9 affected his behavior at the time in question. They know the p robative questions to ask of the opposing party’s psychiatrists and how to interpret their answers. Unlike lay witne sses, who can merely describe s ymptoms they believe might be relevant t o the defendant’s mental state, psychiatrists can identify the “elusive and often deceptive” symptoms of insa nity, Solesbee v. Balkcom , 339 U.S. 9, 12, 70 S.Ct. 457, 458, 94 L.Ed. 604 (1950), and tell th e jury why their observa tions are relevant. Further, where permitted by evidentiary rules, p sychiatrists can translate a m edical 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. Thro ugh this process of investigation, inter pretation, and testimony, psychi atrists ideally assist lay jurors, who generally have no training in psychiatri c matters, to make a sensible and educated determination about the mental con dition of the defendant at the time of the offense. Psychiatry is not, however, an exa ct science, and psychiatrists disagree widely and frequently o n what constitutes mental illne ss, on the appropriate diagnosis to be attached to given behavior and symp toms, on cure and treatment, and on likelih ood of future dangerousness. Perhaps because there often is no single, accurate psychiatric conclusi on on legal insanity in a given case, juries remain the primary factfinders on this issue, and they must resolve differences in opinion within the psychia tric profession on the basis of the evi dence offered by each party. When jurors make this determination about i ssues that inevitably are comple x and foreign, the testimony of psychiatrists can be crucial and “a v irtual necessity if an insanity plea is to have any chance of success. ” By organizing a defendant’s mental history, examination results an d behavior, and other information, interpreting it in light of their expert ise, and then laying out their investigative and analytic process to the jury , the psychiatrists for each party enable the jury to make its most a ccurate determination of the truth on the issue before them. It is for this reason that States rely on psychiatrists as examiners, consultants, and wit nesses, and that private individuals do as well, when they can afford to do so. In so saying, we neither approve nor disapprove the widespread relian ce on psychiatrists but instead recognize the unfairness of a contrar y holding in light of the evolving practice. [26]

26 Id . at 79-82 (citations omitted).10 Therefore, the Court held “that when a defendant demonstrates t o the trial judge that his sanity at the time of the offense is to be a significa nt factor at trial, the State must, at a minimum, assure the defendant access to a competent psychi atrist who will conduct an appropriate examination and a ssist in evaluation, prepara tion, and presentation of the defense .” 27 One thing about Ake is clear: it sets fo rth the due process an alysis that a court must use when an indigent criminal defendant claims he or she has no t been provided “the basic tools of an adequate defense” and therefore did not have “an adequate opportunity to present [his or her] claims fairly within the adversarial sy stem.” 28 Ake applied this analysis in the context of a request for the assistance of a ps ychiatric expert in order to present an insanity defense. But the Court’s analysis of the f irst two factors from

Mathews certainly applies to other types of experts and fields of exper tise. 29 And many of the Court’s observations about psychiatrists and psychiatry also apply equally to other types of experts and fields of expertise. 30

27 Id . at 83 (emphasis added); see also McWilliams v Dunn , 582 US___, ___; 137 S Ct 1790, 1799-1800; 198 L Ed 2d 341 (2017).

28 Ake , 470 US at 77 (quotation ma rks and citation omitted).

29 See id . at 78-79.

30 There can be no doubt that many types of expert witnesses—incl uding DNA experts— have played a pivotal role in cri minal proceedings. It is undi sputed in this case—and indeed seems beyond dispute—that DNA and other types of experts may sometimes “be crucial to the defendant’s ab ility to marshal his defense.” Id

. at 80. And, finally, we have yet to discern an exact science on this topic—indeed, the very notion is incompatible with our adversarial system of justice, in which “juries remain the primary factfinders . . . and they must resolve differences of opinion [among the experts] on the basis of the evidence11 There is a burgeoning consensus that Ake ’s due process analysis is not limited to psychiatric experts—a point t he prosecutor here concedes. 31 And the vast majority of courts have held that although Ake involved a capital case, its reasoning is not limited to such cases. 32 We agree with both conclusions.

offered by each party.” Id . at 81; see also Hinton v Alabama , 571 US 263, ___; 134 S Ct 1081, 1090; 188 L Ed 2d 1 (2014) (“Prosecution experts, of cour se, can sometimes make mistakes. Indeed, we have recognized the threat to fair crimin al trials posed by the potential for incompetent or fraudulent prosecution forensics e xperts, noting that ‘[s]erious deficiencies have bee n found in the forensic evidenc e used in criminal trials.’ . . . This threat is minimized when the defense retai ns a competent expert to counter the testimony of the prosecution’s expert witnesses; it is maximized when the defense instead fails to understand the resources available to it by law.”), quoting Melendez-Diaz v Massachusetts , 557 US 305, 319; 129 S Ct 2527; 174 L Ed 2d 314 (2009).

31 3 LaFave, Criminal Procedure (4th ed), § 11.2(e), p 743 (“A su bstantial majority of the courts addressing the extension of Ake have concluded that psychiatric assistance is not so unique as to invariably exclude from the Ake rationale all other types of experts.”). See, e.g., Little v Armontrout , 835 F2d 1240, 1243 (CA 8, 1987) (holding that “[t]here is no principled way to distinguish between psychiatric and nonpsy chiatric experts” and that courts must consider, in each case, “not what field of science or expert knowledge is involved, but rather how importa nt the scientific issue is in t he case, and how much help a defense expert could have given”); State v Mason , 82 Ohio St 3d 144, 149; 694 NE2d 932 (1998) (“While Ake involved the provision of expert psychiatric assistance only, the case now is generally recognized t o support the proposition tha t due process may require that a criminal defendant be provided other types of expert ass istance when necessary to present an adequate defense.”).

32 In this regard, we agree with the Tennessee Supreme Court that “[t]he due process principle of fundamental fairness applies to all criminal prosecutions, and does not rest upon the severity of the sanction sought or imposed.” State v Barnett , 909 SW2d 423, 428 (Tenn, 1995) (emphasis added). See also Moore v State , 390 Md 343, 363; 889 A2d 325 (2005) (“The majority of cour ts that have considered this q uestion have concluded that Ake applies to non-capital cases.”); Barnett , 909 SW2d 423 (and the cases cited therein).12 B. MCL 775.15: THE STANDARD A PPLIED BY MICH IGAN COURTS Before today, this Court has not acknowledged that Ake is the controlling law in this area. Instead, we have anal yzed the issue of whether a cr iminal defendant was entitled to the appointment of an expert witness at public expe nse under MCL 775.15. That statute provides as follows: If any person accused of any crime or misdemeanor, and about to be tried therefor in any court of record in this state, shall make it appear to the satisfaction of the judge pr esiding over the court wher ein such trial is to be had, by his own oath, or otherwise, t hat there is a material witness in his favor within the ju risdiction of the court, without whose testimony he cannot safely proceed to a trial , giving the name and place of residence of such witness, and that such accused person is poor and has not and cannot obtain the means to procure the attendance of such witness at t he place of trial, the judge in his discretion may , at a time when the prosecuting officer of the county is present, make an order that a su bpoena be issued from such court for such witness in his favor , and that it be served by the proper officer of the court. And it shall be the duty of such officer to serve such subpoena, and of the witness or witnesses named therein to atte nd the trial, and the officer serving such subpoena shall be paid therefor, and the witness therein named sha ll be paid for attending su ch trial, in the same manner as if such witness or witne sses had been subpoenaed in behalf of the people

. [33]

In People v Jacobsen , 34 after citing approvingly the d issenting Court of Appeals judge’s statement that under this statute “a defendant must ‘sh ow a nexus between the

33 (Emphasis added.) See also MCL 767.32, which provides that “[ t]he clerk of any county in which an indictment shall be found, upon the applicat ion of the defendant, and without requiring any fees, sh all issue subpoenas as well durin g the sitting of any court as in vacation, for such witnesses as the defendant may require, w hether residing in or out of the county.”

34 People v Jacobsen , 448 Mich 639, 641; 532 NW2d 8 38 (1995) (citation omitted).13 facts of the case and the need f or an expert,’ ” we held that “ [w]ithout an indication that expert testimony would likely benefit the defense, it was not e rror to deny without prejudice the motion for appointment of an expert witness.” 35 A few years later, in People v Tanner , 36 our Court again addressed the issue of whether an indigent defendant w as entitled to the appointment o f an expert under MCL 775.15, stating as follows: As MCL 775.15 makes clear, a trial court is not compelled to provide funds for the appointment of an expert on demand. In [ Jacobsen , 448 Mich at 641], this Court held that, to obtain appointment o f an expert, an indigent defendant must demons trate a “ ‘nexus between the f acts of the case and the need for an expert.’ ” (Citation omitted.) It is not enough for the defendant to show a mere po ssibility of assistance from the requested expert. “Without an indication that expert testimony would lik ely benefit the defense,” a trial court does not abuse its discretion in de nying a defendant’s motion for appoin tment of an expert witness. [37]

Jacobsen and Tanner are noteworthy for at least two reasons. First, both cases rely on a statute—MCL 775.15—that by its plain text and origina l meaning does not apply to appointment of expert witnesses; indeed, it was design ed for an entirely different purpose. This is made clear by a brief examination of the subj ect matter the statute was intended to cover.

35 Id

.

36 People v Tanner , 469 Mich 437; 671 NW2d 728 (2003).

37 Id . at 442-423.14 Like its federal counterpart, Michigan’s Constitution has alway s guaranteed that the accused in all criminal proc eedings “shall have the right . . . to have compulsory process for obtaining witnesses in his favor . .



### . .” 38 Not long after statehood, our Legislature enacted the precursor to MCL 775.15, which provided a mechanism for indigent criminal defendants to request the assistance of the c ourt in compelling witnesses to appear at trial at government expense. 39 This statute was last amended in

1877 40 and was recodified in 1927 as MCL 775.15. MCL 775.15, by its express terms, does not provide for the appo intment of expert witnesses. It merely provides a means for subpoenaing certain witnesses and for paying their cost of attending trial. And the mechanism it provides—c ompelling witnesses to testify—is not the typical way e xpert witnesses are invited to participate in a criminal proceeding. This is not surprising because the use of expert w itnesses was not as thoroughly accepted when the statu te was first enacted or when it was later amended. 41

38 See Const 1835, art 1, § 10; Const 1850, art 6, § 28; Const 19 08, art 2, § 19; Const 1963, art 1, § 20. See also US Const, Am VI. As it pertained to state criminal proceedings, this was only a ma tter of state concern until 1965 , when the United States Supreme Court decided that the Fourteenth Amendment makes the S ixth Amendment’s right to compulsory process a pplicable to the states. See Washington v Texas , 388 US 14, 17-18; 87 S Ct 1920; 18 L Ed 2d 1019 (1967).

39 See 1849 PA 226.

40 See 1877 PA 24.

41 See McNally v Colwell , 91 Mich 527, 536-537; 52 NW 70 (1892) (“And since a man’s opinion cannot be met and tested, as could his testimony to the existence of a fact, expert evidence, while useful in many cases, is dangerous in all, and should be restricted, for the purpose of accuracy in determining the truth, which is the aim of all judicial investigation, to those cases where its use is well nigh indisp ensable because of questions15 In any event, the statute, which only contemplates “testimony,” falls short of the constitutional standard set forth in Ake , which clearly requires the assistance of an expert in “conduct[ing] an appropriate e xamination” and “in evaluation , preparation, and presentation of the defense.” 42 While both Jacobsen and Tanner applied MCL 775.15, neither specifically addressed wh ether that statute was applica ble to requests by an indigent defendant for the appointment of an expert. 43 After Jacobsen was decided by

of science or skill being involve d, in which a special and pecu liar knowledge is desired in order to arrive at the truth.”); 1 McCormick on Evidence (7th e d), § 13, p 90 (“In the past three decades, the use of expert witnesses has skyrocketed.”); The New Wigmore, Expert Evidence (2d ed), § 1.3. pp 10-11 (noting that while experts we re increasingly used at the end of the nineteenth century, criticism o f their use was preva lent).

42 Ake , 470 US at 83. Indeed, to the extent that MCL 775.15 could be read as applying to expert witnesses at all, it would only cover a small sliver of what Ake requires. By its plain terms, MCL 775.15 applies only when the judge, “in his di scretion,” orders a subpoena for a witness “within the jurisdiction of the court.” Assuming that the subpoenaed witness can be an expert, that expert is not “appoin ted” for defendant pursuant to the statute. Further, the statute contemplates pay ing the witness “for attending such trial.” Thus, the expert is entitled only to th e costs for appearing in court. Generally, for nonexpert witnesse s, the statutes provide only $ 12 per day for this cost, MCL 775.13(1), although expert witnesses can be given more, MCL 775.13a. And because the fees are for actually attending court, the fees wou ld likely only be payable after the expert attends. Cf. Chase v Kalamazoo Circuit Judge , 154 Mich 271, 273; 117 NW 660 (1908) (“Fees in criminal cases are not required to be p aid in advance. They are only paid after the trial upon due proof of attendance.”). In any event, an expert under MCL 775.15 would not be appointed to conduct an examination or aid in the evaluation or preparation of the case—the expert would, instead, be compel led to attend the trial and paid only for that attendance. And only experts within the cou rt’s jurisdiction are encompassed by the text of the statute. Consequently, if MCL 7 75.15 extends to expert witnesses—and no one has made this or any other text-based argu ment that it does—it would cover only a small fraction of Ake ’s mandate. But any areas of potential overlap would still need to meet the c onstitutional requirements prescr ibed by Ake

.

43 In Tanner , this Court relied exclusively on Jacobsen , see Tanner , 469 Mich at 442- 444; and in Jacobsen , this Court, in turn, relied exclusively on the Court of Appea ls’16 this Court, citations by the Court of Appeals of MCL 775.15 in this context have proliferated. 44 Second, Jacobsen and Tanner are noteworthy for another reason—neither opinion cited Ake or applied its due process framework in determining whether a t rial court should grant a request by an indigent criminal defendant for th e appointment of an expert witness; nor did either opi nion attempt to distinguish Ake

. 45

dissenting opinion in that case, see Jacobsen , 448 Mich at 641, citing People v Jacobsen , 205 Mich App 302; 517 NW2d 323 (1994) (T AYLOR , J., dissenting). The dissenting judge assumed, without citing an y authority, that MCL 775.15 “a uthorizes the payment of expert fees in indigent cases.” Jacobsen , 205 Mich App at 308 (T AYLOR , J., dissenting). Only when we look to the majority opinion in Jacobsen do we finally find a case cited for this proposition. Id . at 305 (opinion of the Court), citing People v Miller , 165 Mich App 32, 47; 418 NW2d 668 (1987). Miller appears to be the first appellate decision in Michigan holding that MCL 775.15 governs a trial co urt’s decision whether to appoint an expert witness upon the request of an indigent crimi nal defendant, although that opinion, too, failed to explain why this is so. The only case it cited, People v Thornton , 80 Mich App 746; 265 NW2d 35 (1978), could possibly be read a s indicating in dictum that the statute applie d to an expert witness, given that one of the witnesses at issue in that case was “an orth opedic surgeon with ballistics e xpertise.” Id

. at 749, 752. However, whether this dictum ev en applies to an expert witness is unclear—the opinion does not indicate the nature of th e witness’s expected testimon y, given that the defense refused to disclose the information in open court. Id . at 749. In any event, the case Thornton cited, People v Thomas , 1 Mich App 118; 134 NW2d 352 (1965), did not involve expert witnesses.

44 Only two Court of Appeals panels applied MCL 775.15 to request s by an indigent defendant for payment of expert witnesses before this Court dec ided Jacobsen , see In re Klevorn Attorney Fees , 185 Mich App 672, 678-679; 463 NW2d 175 (1990); People v Davis , 199 Mich App 502, 518; 503 NW 2d 457 (1993), rev’d on other gr ounds by People v Grissom , 492 Mich 296 (2012). Since Jacobsen was decided by this Court, however, citations of MCL 775.15 for this pu rpose have increased to well over 100 cases.

45 This point was raised by Judge Raymond Kethledge at oral argum ent when Tanner was before the United States Court of Appeals for the Sixth Circuit on habeas review last year; the Sixth Circuit recently granted a new trial in that ca se on sufficiency of the17 We conclude that the Legislature did not intend MCL 775.15 to e ncompass requests by an indigent criminal defendant for the appointment of an expert at government expense, and we overrule Jacobsen and Tanner to the extent that they hold or suggest to the contrary. 46 Instead, we hold—as we must 47 —that the Ake due process analysis governs such requests.

C. MOORE v KEMP : THE REASONABLE PROB ABILITY STANDARD Although Ake governs requests by an indigent criminal defendant for the appointment of an expert at government expense, the Supreme Cou rt has not explained how this showing must be made. This question is critical. Unt il an expert is consulted, a defendant might often be unaware of how, precisely , the expert would a id the defense. If, in such cases, the defendant were required to prove in detail w ith a high degree of certainty that an expert would b enefit the defense, the defenda nt would essentially be tasked with the impossible: to get an expert, the defendant wou ld need to already know what the expert would say. 48 At the same time, the defendant’s bare assertion that an

evidence grounds, so it did not address the defendant’s argumen t that our Court unreasonably applied Ake

. Tanner v Yukins , 867 F3d 661, 663 (CA 6, 2017). While the defendant in Tanner cited Ake in support of her contention that she was entitled to the appointment of an expert, she did not argue that Ake required a different standard than that employed by this Court in Jacobsen

. 46 We express no opinion as to whet her, under the standard adopte d in this opinion, Jacobsen and Tanner correctly held that the defendants in those cases were not enti tled to expert assistance.

47 See US Const, art VI, cl 2.

48 See People v Agar , 314 Mich App 636, 642; 887 NW 2d 662 (2016) (“We are troubled by the logic that a defendant w ho admits technical ignorance an d who has no resources18 expert would be beneficial cannot, without more, entitle him or her to an expert; otherwise, every defendant would receive funds for experts upon request. 49 A majority of states confronting this problem have adopted a re asonable probability standard. 50 In Moore v Kemp , the United States Court of Appeals for the Eleventh Circuit discussed this standard as follows: [A] defendant must demonstrate something more than a mere possi bility of assistance from a requested expert; due process does not requir e the government automatically to provi de indigent defendants with ex pert assistance upon demand. Rathe r . . . a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial. Th us, if a defendant wants an ex pert to assist his attorney in confronting the prosecution’s proof—by preparin g counsel to cross-examine the prosecution’s experts or by providing rebu ttal testimony—he must inform the court of the nature of the prosecu tion’s case

from which to acquire technical expertise is asked to present e vidence of what evidence an expert would offer in order to receive public funds to hire the expert.”), vacated in part and reversed in part 500 Mich 891 (2016); People v Carnicom , 272 Mich App 614, 620; 727 NW2d 399 (2006) (C OOPER , J., concurring) (“If the court provides to indigent defendants the right to a court appointed and funded expert wit ness, there can be no requirement that the defendant first show the expert will suppo rt his claim. Otherwise, the right affords defendants no protection at all.”).

49 Cf. Caldwell v Mississippi , 472 US 320, 323 n 1; 105 S Ct 2633; 86 L Ed 2d 231 (1985) (citing Ake and noting that “[g]iven that petitioner offered little more th an undeveloped assertions that the requested [expert] assistance w ould be beneficial, we find no deprivation of due process in the trial judge’s decision” to deny the defendant’s request for appointment of experts).

50 See State v Davis , 318 SW3d 618, 634-365 (Mo, 2010 ) (characterizing the reasonab le probability test as “the prevailing test” used by a “host of ju risdictions”); Moore , 390 Md at 367 (“The test that seems to h ave been adopted by the majori ty of courts considering the issue is the one enunciated by the United States Court of A ppeals for the Eleventh Circuit in Moore v. Kemp .”).19 and how the requested expert would be useful. At the very leas t, he must inform the trial court about the nature of the crime and the ev idence linking him to the crime. By the same token, if the defendant desires the appointment of an expert so that he can present an affirmative defense, such as insanity, he must demonstrate a substantial basis for the de fense, as the defendant did in Ake. In each instance, the defe ndant’s showing must also include a specific description of the expert or experts desired ; without this basic information, the court would be unable to grant the defen dant’s motion, because the court would not know what type of expert wa s needed. In addition, the defendant should inform the court why the part icular expert is necessary. We recognize that d efense counsel may be unfamil iar with the specific scientific theories implicated in a case and there fore cannot be expected to provide the court w ith a detailed analysis of the a ssistance an appointed expert might provide. We do believe, however, that d efense counsel is obligated to inform h imself about the specific scien tific area in question and to provide the cour t with as much information as p ossible concerning the usefulness of the requested expert to the defens e’s case. [51]

We believe that the st andard articulated in Moore strikes the right balance between requiring too much or too little o f a defendant seeking the app ointment of an expert under

Ake . Therefore, we adopt Moore ’s reasonable probability sta ndard as the appropriate standard for courts to apply in determining whether an indigent criminal defendant is entitled to the appointment of an expert at government expense under Ake ’s due process analysis. In particular, we hol d that “a defendant must show t he trial court that there exists a reasonable probability bot h that an expert would be of assistance to the defense and that denial of expert assist ance would resu lt in a fundamen tally unfair trial.” 52

51 Moore , 809 F2d at 712.

52 Id

.20 IV. CONCLUSION For the reasons stated above, we hold that the Court of Appeals erred by analyzing defendant’s request for expert a ssistance under MCL 775.15 inst ead of Ake . Thus, we vacate the Court of Appeals’ decision, and we remand to the Cou rt of Appeals for application of the Ake due process analysis and, in particular, consideration of whet her defendant made a sufficient showing that there exists a reasona ble probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial. 53

David F. Viviano Stephen J. Markman Brian K. Zahra Bridget M. McCormack Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement

53 We leave to the Court of Appeals on remand all remaining issue s, which shall be resolved consistently with this opinion.