Must Court-Appointed Psychiatrists Be Independent?

In Ake v. Oklahoma (1985) the Supreme Court held that if a criminal defendant’s mental health will be a significant factor at trial the state must ensure that the defendant has access to a “competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.”

The question the Supreme Court will decide in McWilliams v. Dunn is whether such an expert must be independent of the prosecution.

A state “Lunacy Commission” concluded James McWilliams “was competent to stand trial, free of mental illness at the time of the crime, and faking psychotic symptoms.” McWilliams was sentenced to death for robbing, raping, and shooting a convenience store employee.

At the penalty phase McWilliams’ mother testified he had head injuries as a child, which his defense counsel did not know about. Before sentencing the trial court appointed a state neuropsychologist to evaluate McWilliams. The neuropsychologist had no confidential relationship with McWilliams; he delivered his report to both the defense and the prosecution.

McWilliams argues that Ake entitles him to an evaluation by a mental health professional who he has a confidential relationship with. The Eleventh Circuit disagreed without any explanation other than noting the federal circuit courts of appeals are split on this question.   

The Constitution Center argues in its amicus brief asking the Court to review this case that only with the assistance of a dedicated, confidential mental health professional will a defendant with mental health issues have meaningful access to justice.

More specifically, for a mental health professional to conduct an accurate mental health assessment the patient must be candid. Without confidentiality a patient isn’t likely to be candid—particularly about information legally harmful but potentially relevant to a mental health evaluation.

Also if a mental health professional’s report is automatically turned over to the prosecutor the defendant and his or her counsel cannot decide whether to have the mental health professional testify on his or her behalf (and voluntarily turn over the report to the prosecutor) or “instead forego presenting the expert and utilize the expert to prepare its cross-examination of the prosecution experts, depending on which alternative is in the client’s best interests.”