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DNA - A Prosecutor’s Practice Notebook Inventory

Defendant's Right to an Expert Witness

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Photo of an expert witness appearing in front of a judge inside of a courtroom
National Institute of Justice (NIJ) (see reuse policy).

The defendant's right to an expert witness, at state expense, is founded on the due process clause. Ake v. Oklahoma, 470 U.S. 68; 105 S.Ct. 1087; 84 L.Ed. 2d 53 (1985), which holds that a defendant is entitled to the appointment of an expert where the subject necessitating assistance is likely to be a significant factor in the defense and prejudice will follow in the absence of such appointment. Some courts have held that the defendant has an absolute due process right to the appointment of a DNA expert Dubose v. State, 662 So.2d 1156 (Ala. Crim. App. 1993).

The defendant is not entitled to the appointment of multiple experts on the same subject [Hodges v. Commonwealth, 492 S.E. 2d 846; 26 Va. App. 43 (Va.Ct. App. 1997)]. The defense request for an expert must be timely [People v. Leonard, 569 N.W. 2d 663; 224 Mich. App. 569 (Mich. Ct. App. 1997)].

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