Mitigation Expert, Failure of the Trial Judge to Appoint
Unless otherwise indicated, all indented material is copied directly from the court’s opinion.
Decisions of the Tennessee Supreme Court
State v. Jones, No. W2015-02210-SC-DDT-DD, 568 S.W.3d 101, 137 (Tenn. 2019).
“To warrant reversal for failure of a trial court to allocate resources for expert assistance, a defendant must show the existence of a ‘particularized need’ for the allocation of resources for expert assistance.” Hester, 324 S.W.3d at 47 (citing State v. Dellinger, 79 S.W.3d 458, 469 (Tenn. 2002); State v. Barnett, 909 S.W.2d 423, 430 (Tenn. 1995); State v. Shepherd, 902 S.W.2d 895, 904 (Tenn. 1995); Evans, 838 S.W.2d at 192); see also State v. Smith, 993 S.W.2d 6, appx. 28 (Tenn. 1999).
“In order to demonstrate a particularized need, a defendant must first establish that he or she will not have a fair trial without the requested expert assistance.” Hester, 324 S.W.3d at 47 (citing Dellinger, 79 S.W.3d at 469; State v. Scott, 33 S.W.3d 746, 753 (Tenn. 2000); Barnett, 909 S.W.2d at 430–31). “The defendant must also establish that there is a reasonable likelihood that the requested expert assistance will materially assist him or her in preparing or presenting his or her case.” Id. (citing Dellinger, 79 S.W.3d at 469; Scott, 33 S.W.3d at 753; Barnett, 909 S.W.2d at 430–31).
Tennessee Supreme Court Rule 13 also provides that
[p]articularized need cannot be established and funding requests should be denied where the motion contains only:
(A) undeveloped or conclusory assertions that such services would be beneficial;
(B) assertions establishing only the mere hope or suspicion that favorable evidence may be obtained;
(C) information indicating that the requested services relate to factual issues or matters within the province and understanding of the jury; or
(D) information indicating that the requested services fall within the capability and expertise of appointed counsel.
Tenn. Sup. Ct. R. 13, § 5(c)(4) (citing State v. Barnett, 909 S.W.2d 423, 430 (Tenn. 1995); Caldwell v. Mississippi, 472 U.S. 320, 323 n.1, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); State v. Abraham, 338 N.C. 315, 451 S.E.2d 131, 149 (1994) ).
Editor’s Note: Tenn. Code Ann. § 40-14-207(b) (2012) provides as follows:
[i]n capital cases where the defendant has been found to be indigent by the court of record having jurisdiction of the case, the court in an ex parte hearing may, in its discretion , determine that investigative or expert services or other similar services are necessary to ensure that the constitutional rights of the defendant are properly protected. [Emphasis added.]
Decisions of the Tennessee Court of Criminal Appeals
