7.4Court-Appointed Expert Witnesses¹

A.To Assist the Court

MRE 706 details the requirements for appointing an expert witness for the purpose of assisting the trial court; the rule does not apply to an expert witness the trial court appoints to assist an indigent defendant. In re Yarbrough Minors, 314 Mich App 111, 121, 121 n 7 (2016).

MRE 706 provides:

“(a) Appointment Process. On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

(b) Expert’s Role. The court must inform the expert of the expert’s duties. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. The expert:

(1) must advise the parties of any findings the expert makes;

(2) may be deposed by any party;

(3) may be called to testify by the court or any party; and

(4) may be cross-examined by any party, including the party that called the expert.

(c) Compensation. The expert is entitled to a reasonable compensation, as set by the court. The compensation is payable as follows:

(1) in a criminal case or in a civil case involving just compensation under the Fifth Amendment, from any funds that are provided by law; and

(2) in any other civil case, by the parties in the proportion and at the time that the court directs—and the compensation is then charged like other costs.

(d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the jury that the court appointed the expert.

(e) Parties’ Choice of Their Own Experts. This rule does not limit a party in calling its own experts.”

B.To Assist an Indigent Defendant

When considering whether to appoint an expert witness for an indigent defendant, trial courts must apply the due process analysis set forth in Ake v Oklahoma, 470 US 68 (1985). People v Kennedy, 502 Mich 206, 228 (2018). Under Ake, for an indigent criminal defendant to merit the appointment of an expert witness, the “‘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.’” People v Kennedy, 502 Mich 206, 228 (2018),² quoting Moore v Kemp, 809 F 2d 702, 712 (CA 9, 1987). “’In addition, the defendant should inform the court why the particular expert is necessary.’” People v Warner, ___ Mich ___, ___ (2024), quoting Kennedy, 502 Mich at 227.

“[W]hen a defendant requests an expert to present an affirmative defense, a defendant must make the additional showing of a substantial basis for the defense.” People v Propp (Propp II), 508 Mich 374, 381 (2021), reversing in part and vacating in part People v Propp (Propp I), 330 Mich App 151 (2019). In Propp, the defendant was charged with open murder and requested an expert to assist him in advancing the defense that the victim’s death was an accident. Propp II, 508 Mich at 381. The Michigan Supreme Court held that the Michigan Court of Appeals erred by requiring the defendant to show a substantial basis for the defense because the defense of accident was not an affirmative defense; rather, it negated the element of intent for the charge of first-degree premeditated murder, which the prosecutor had the burden to prove. Id. at 381-382. The Propp II Court specifically instructed the Court of Appeals on remand to apply the due-process analysis laid out in Ake and adopted in Kennedy when determining whether to grant an indigent defendant’s request for the assistance of an expert witness at government expense. Propp II, 508 Mich at 382-383.

On remand in Propp, the Court of Appeals applied the proper standard and expressed its conclusion that the defendant in Propp had satisfied the first portion of the “reasonable-probability standard” in part because the defendant’s burden of production in that regard was not “overly burdensome[.]” People v Propp (On Remand) (Propp III), 340 Mich App 652, 660 (2022). The Propp III Court determined that the defendant had failed to meet the second portion of the Ake standard; according to the Court, “in the end it [was] not reasonably probable that the denial of this expert assistance resulted in a fundamentally unfair trial.” Id. at 660. The defendant claimed that the victim’s death was an accident that occurred during the practice of erotic asphyxiation and asserted that he required an expert witness to testify in support of his claim. Id. at 659-661. The Propp III Court concluded that the trial court did not err in refusing to appoint an expert witness to testify for the defendant at government expense. Id. at 660. According to the Court, “[A]lthough the practice of erotic asphyxiation may have been unfamiliar—or entirely unknown—to certain jurors, the essence of the defense was not so technical or complex that testimony from an expert would have been particularly helpful to the defense or the jury.” Id. at 660.

“[A] defendant is not required to show that he is unable to present his defense without expert assistance.” Warner, ___ Mich at___. According to the Court, “here, defendant has established that the veracity of his confession was a significant factor at trial,” and that “[h]is confessions were the only corroborating evidence of the complainant’s allegations. Thus, a central focus of the defense was to cast doubt on his confessions.” Warner, ___ Mich at ___. Defendant’s expert in false confessions was needed “to explain to the jury that his confession had the characteristics of coercion” and to “provid[e] defendant valuable information about how to otherwise understand evidence that would be presented to the jury . . . .” Id. at ___. “Thus, defendant showed 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.” Id. at ___ (quotation marks and citation omitted).