Denying funds to pay experts was error

Appellant’s jury conviction for several sex crimes involving a 13-year-old child must be reversed. The trial court incorrectly denied several requests for funds to pay for experts to bolster appellant’s defense that a particular interrogation technique led him to falsely confess to the crimes.

Some denials appropriate

“Smith contends that he was denied a fair trial because the trial court refused to grant him funds to pay for various experts.

“Except for his request for funds for a neuropsychological evaluation and for funds for a psychological expert to testify that major depression and unmedicated anxiety could render a person more susceptible to give a false confession, all of the expert testimony that would have been procured through the use of these funds would have been inadmissible at trial as a result of the trial court’s evidentiary rulings.

“Because we affirm on those issues, any potential error in refusing the requests for funds for experts to testify to those things was harmless.”

No fishing

However, “the trial court abused its discretion in refusing Smith the funds he needed to bring an appropriate expert to testify that mental illness, including such disorders as major depression and anxiety, render a person more susceptible to confessing falsely.

“Smith’s many proffers of proposed expert testimony made clear that mental illness and cognitive impairment, among other things, render a person more susceptible to interrogation techniques.” At issue in this case is use of the “Reid technique.”

“Therefore, funding this request for expert assistance would not have condoned a fishing expedition. Expert testimony on this point was admissible, and therefore refusing those funds resulted in Smith’s trial being unfair because his confession was clearly one of only two pillars – the other being the victim’s accusation – supporting his conviction.

“The trial court also erred in refusing to grant expert funds to permit Smith to be evaluated for HAND [HIV-Associated Neurocognitive Disorder].

“The trial court opined that Smith had to provide evidence that he had been diagnosed with HAND in order to receive expert funds to bring an expert to trial to testify to Smith’s impaired cognitive symptoms.

“But Smith had proffered evidence that his longtime HIV doctor believed he ‘fit the profile for [HAND],’ that ‘half of all treated HIV patients have cognitive impairment,’ and that cognitive impairments caused by HAND ‘cannot be reversed’ by ‘antiretroviral therapy.’”

The evidence showed that Smith had many risk factors Associated with HANDS. “With these indications that Smith suffered from HAND, counsel did not need a diagnosis to show that an evaluation was not just a fishing expedition.

“Nor could counsel have been expected to specify the exact cognitive impairments the evaluation would likely disclose. Indeed, the court’s two grants of funds for the police interrogation expert support our conclusion that this was not a fishing expedition.”

The trial court erred by denying appellant funds for a HANDS evaluation.

False confessions

“The trial court also held that expert testimony explaining the effects of the interrogation techniques on a person like Smith – who had been diagnosed with major depression and anxiety, had not been taking his anxiety medications for some time before the interrogation, and had memory problems – was within the purview of the jury.

“The trial court believed the jury did not need an expert to ‘comprehend the subject matter, form an intelligent opinion, and draw its conclusions.’

“The trial court therefore excluded expert testimony on whether and to what extent a person’s major depression and unmedicated anxiety could influence the person to confess falsely under the pressure of interrogation techniques. Smith challenges this ruling. …

“In a criminal case, ‘an expert may testify to a witness’s or defendant’s mental disorder and the hypothetical effect of that disorder on a person in the witness’s or defendant’s situation.’ …

“Such testimony provides ‘information on subjects unfamiliar to the jury.’ … Evidence at a pretrial hearing indicated that Smith suffered from major depression and anxiety and had not been taking his anxiety medications for some time before the interrogation.

“At trial, medical records showing his diagnoses of major depression and anxiety were introduced without objection.

“Although there may be some mental disorders or illnesses with such slight effects that an ordinary person could understand their effects on a person’s susceptibility to make a false confession and draw informed conclusions without expert assistance, we do not believe that major depression and unmedicated anxiety fall within that category.

“Smith was therefore entitled to present expert testimony from a qualified expert on the susceptibility of a person suffering from major depression and unmedicated anxiety to making a false confession.”

Reid technique

“The trial court ruled that Smith’s proposed expert testimony describing the Reid Technique and how it was used in the interrogation would be needlessly cumulative because Smith could elicit that testimony on cross-examination of the interrogator. …

“Although Smith’s interrogation expert might have expounded in a more thorough and learned fashion on the Reid Technique than the interrogator did, at trial the interrogator explained the Reid Technique and candidly admitted the manner in which it and other interrogation techniques were used during the interrogation.

“Therefore, we cannot say the trial court abused its discretion in excluding cumulative expert testimony on the same matters.”

Conclusion

The trial court, in several instances, correctly withheld funds to pay experts to testify on certain matters. However, the court erred by withholding funds for expert testimony on several issues that were key to his defense that he falsely confessed to the crimes for which he was convicted.

Reversed and remanded.

Smith v. Commonwealth, Record No. 0680-21-2, May 17, 2022. CAV (Athey) From the Circuit Court of the City of Richmond (Snukals). Samantha Offutt Thames for appellant. Tanner M. Russo for appellee. VLW 022-7-146, 20 pp. Unpublished opinion.