In Ake v. Oklahoma,2 the United States Supreme Court held that a state must provide the defense access to a psychiatrist "who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense" whenever the defendants "sanity at the time of the offense is likely to be a significant factor at trial" (83). Most jurisdictions have expanded the Ake rule to cover any expert whose assistance and testimony is integral to a complete defense.3
Ake did not resolve the question whether a defendant is entitled to an ex parte hearing in which to request expert assistance.4 The Court left "to the States the decision on how to implement" the right to expert assistance (83).5 The Supreme Court of Missouri has yet to rule whether an indigent defendant has a right to an ex parte hearing in which to request expert assistance. Federal courts6 and numerous state courts7 require ex parte consideration of an indigent defendants request for expert assistance. I argue in this article that the 5th and 14th Amendments to the United States Constitution entitle indigent criminal defendants to an ex parte hearing when seeking expert assistance in the preparation and presentation of a defense.
The Ake Decision
The Ake Court recognized that to deny an indigent defendant basic, critical expert assistance, while the state may utilize virtually any expert of its choosing, renders a criminal trial fundamentally unfair. Writing for an 8-1 majority, Justice Marshall observed that:
mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. . . .
[This Court] has often reaffirmed that fundamental fairness entitles indigent defendants to "an adequate opportunity to present their claims fairly within the adversary system." (77) (citation omitted)
The Due Process Clause of the 14th Amendment requires that a defendant have "the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake" (76). The right to expert assistance is as crucial to meaningful participation in a criminal proceeding as, among other rights, the right to a free trial transcript, to filing fee waivers, to court-appointed counsel to trial and on first appeal, and to effective assistance of counsel (76).
Expert assistance is constitutionally required as a basic tool of an adequate defense or appeal (76). The Court reached this conclusion by applying the three-prong Mathews v. Eldridge8 test for determining the "specific dictates of due process."9
The first is the private interest that will be affected by the actions of the state. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk f an erroneous deprivation of the affected interest if those safeguards are not provided.10
The Ake Court found that the defendants "private interest in the accuracy of a criminal proceeding that places an individuals life or liberty at risk is almost uniquely compelling" (77). By contrast, the states interest in limiting expenditures is insubstantial (78), and whatever interest it may have in prevailing at trial or holding a strategic advantage over a defendant "is necessarily tempered by its interest in the fair and accurate adjudication of criminal cases[;]" therefore, the state may not legitimately assert these interests "if the result . . . is to cast a pall [over] the accuracy of the verdict obtained" (79).
The Courts discussion of the third Mathews factor focused on the pivotal role psychiatrists play in criminal proceedings. Psychiatrists investigate, interpret data, and testify to assist lay jurors make a sensible and educated determination of the defendants mental condition at the time of the offense (79-82). Unless a psychiatrist assists the defense by examining the defendant, assessing the viability of an insanity defense, testifies and aids in the cross-examination of the states expert witnesses, "the risk of an inaccurate resolution of sanity issues is extremely high"(82). Accordingly, when "a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, [and] a presentation of the defense" (82).
Due Process and Ex Parte Proceedings
Much of the Ake Courts reasoning also supports the proposition that an indigent defendant is entitled to an ex parte hearing in which to request expert assistance. The due process requirement of fundamental fairness requires that an indigent defendant secure expert assistance through ex parte proceedings.11
This conclusion follows from application of the Mathews test. A defendants interest implicated by an ex parte proceeding is identical to the one identified in Ake concerning the need for expert assistance: an "almost uniquely compelling" interest in the outcome and accuracy of the trial (78). A defendants use of expert assistance is relatively more critical to a fair and accurate adjudication of the criminal proceeding than simply implementation of an ex parte procedure to request that assistance. However, the use of expert services depends on a demonstration of need for those services. A defendant may withhold information relevant to a determination of need for expert services if he is forced to make the request in the presence of the prosecutor. The state could use this information as direct evidence for investigative leads or for impeachment purposes. A defendant therefore might elect not to present clearly and forthrightly all the information the trial judge needs to determine whether the defendant requires expert services. A defendant might even choose the drastic option of not even seeking expert assistance at all. The California Supreme Court recognized these dangers in People v. Anderson.12 The Anderson court:
freed the defense from the course it otherwise would have had to steer between the Scylla of publicly applying for needed funds and in so doing disclosing some of the defense to the prosecution and Charybdis of keeping the defense secret but, in so doing, foregoing the necessary monies for its preparation and presentation.13
Without an ex parte hearing in which to request expert services, the defendants interest in the fairness and accuracy of the criminal proceeding is also compromised because the state wrongly benefits from what is, in effect, expanded pre-trial discovery. The amount and specificity of "discovery" available to the prosecution at an Ake hearing exceeds the scope of discovery allowed it under Supreme Court of Missouri Rule 25.05,14 which provides in pertinent part:
Except as otherwise provided in these Rules as to protective orders, and subject to constitutional limitations, on written request by the state, the defendant shall disclose to counsel for the state such part or all of the following material or information within his possession or control designated in such request:
(1) Any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons, which the defense intends to introduce into evidence at a hearing or trial, except that those portions of any of the above containing statements made by the defendant shall not be disclosed;
(2) The names and last known addresses of persons, other than defendant, whom defendant intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memoranda reporting or summarizing part or all of their oral statements. (emphasis added)
Rule 25.05 sets forth all the disclosure requirements for the defense regarding the names of witnesses or the findings of experts. The defense is not required to disclose to the state at any time information concerning investigation or preparation of defense strategies or theories that counsel has not decided to present at a hearing or a trial. However, an Ake hearing in which the defense lays out fully the grounds for its need of expert services can involve disclosure of precisely that information. Such unwarranted access effectively penalizes a defendant for exploring possible defenses because it gives the state notice of developing defense strategies far in advance of the point of disclosure required by Rule 25.05.
Given the important roles experts play in a criminal proceeding, preventing an indigent defendant from clearly and fully presenting evidence of need for expert assistance creates an obvious danger to his interest in the fairness and accuracy of that proceeding. Consequently, under the second prong of the Mathews test the state must present strong reasons for not providing an ex parte Ake hearing. There are several important state interests involved in the process of requesting expert assistance for the defense. However, these interests are easily safeguarded in an ex parte Ake hearing. For example, the state has a legitimate interest in a fair and accurate disposition of the defendants request for expert assistance. However, as the Georgia Supreme Court stated in Brooks v. State,15 "under ordinary circumstances, the trial court can evaluate the necessity for expert assistance without the benefit of cross-examination of the defendant by the state."
Similarly, the state has an interest in preventing the waste of public funds and the unnecessary appointment of defense experts. This interest does not create a sound argument against an ex parte Ake hearing for at least three reasons. First, the Supreme Court of Missouri already recognizes substantial limits on appointment of experts for indigent defendants.16 Second, the trial court is well-positioned to assess the legitimacy of the defendants request without an adversarial Ake hearing. Finally, an ex parte Ake hearing obiously entails no additional expenses; it simply requires that the prosecution not attend the hearing.
Finally, the state has an important interest in receiving adequate discovery from the defense. But this interest simply is not touched by an ex parte Ake hearing. Any defendant who receives expert assistance in virtue of an Ake hearing is still subject to Rule 25.05 and, in capital cases, § 565.005.1, RSMo 1994.17 The prosecutions legitimate discovery interests are protected under these discovery rules. The state is not entitled to any additional information disclosed in an Ake hearing, so there is no possibility that an ex parte Ake hearing would lead to inadequate prosecutorial discovery or burden the state with unfair surprises at trial.
The third prong of the Mathews test requires assessing the probable value of an ex parte hearing and the risk of error in the criminal proceeding if the ex parte Ake hearing is not provided. The value of the ex parte hearing is clear: It ensures that a defendant can present a complete case for expert assistance for the preparation and presentation of his defense without fear of the state unfairly exploiting the information disclosed in the request. The ultimate risk involved from not providing an ex parte Ake hearing is an erroneous outcome at trial stemming at least in significant part from the absence or inadequacy of expert assistance.
The Mathews test demonstrates that the 14th Amendment Due Process Clause requires an ex parte Ake hearing. A defendants interests in a fair and accurate adjudication of the charges against him, in receiving expert assistance for the preparation and presentation of his defense, and in protecting his discovery privileges all weigh heavily in favor of providing ex parte Ake hearings. By contrast, the states interests in an accurate assessment of the defendants need for expert help, in the efficient use of public funds, and in receiving adequate discovery from the defense are not even minimally threatened by ex parte Ake proceedings. The principle of fundamental fairness, which grounds the Ake Courts decision that an indigent defendant is entitled to expert assistance, also supports the proposition that a defendant has a right to an ex parte hearing in which to request that assistance.
Self-Incrimination and Ex Parte Proceedings
An adversarial Ake hearing gives the state unfair access to the privileged information a defendant must disclose to request expert assistance. This access violates a criminal defendants 5th Amendment privilege against compelled self-incrimination. The North Carolina Supreme Court ruled that ex parte Ake hearings are constitutionally mandated because "[a] hearing open to the State necessarily impinges upon the defendants . . . privilege against self-incrimination."18
The 5th Amendment requires the state "to shoulder the entire load"19 in a criminal prosecution and prevents the state from avoiding the "burdens of independent investigation by compelling self-incriminating disclosures."20 The privilege protects a defendant from being compelled to disclose self-incriminating information of a testimonial nature.21 Information of this type often is presented in the course of an Ake hearing; therefore, the state should not have access to the disclosures made by the defendant in his request for expert assistance.
A testimonial communication by an accused explicitly or implicitly relates a factual assertion or discloses information.22 Clearly, much of the material presented by a defendant in an Ake hearing is testimonial. A defendant must explain why expert assistance is necessary to his case. The Supreme Court of Missouri, following Ake, requires a defendant to "allege facts, not state mere legal conclusions or theories," to show the trial court that expert assistance is needed.23 This threshold demonstration of need for an expert falls within the category of testimonial evidence because it involves the assertion or denial of variou facts about the defendants case.
A defendant must also demonstrate that the information presents a danger of self-incrimination to claim 5th Amendment protection. In many cases a defendants demonstration of need for expert assistance reveals self-incriminating information. Any defense of excuse or justification, for example, turns on the admission that the defendant committed the action for which he is charged. Therefore, a request for expert assistance in the preparation and presentation of an excuse or justification defense at least implicitly concedes commission of the charged action. This is blatantly self-incriminating information. Moreover, a full application for expert assistance could force a defendant to reveal information that is not in itself self-incriminating but that might open the door for the state to inculpatory evidence. The United States Supreme Court has determined that the privilege against self-incrimination extends to these disclosures as well.24 It may be true that not every Ake hearing inevitably results in the disclosure of self-incriminating evidence, but the danger that the evidence presented in the course of requesting expert assistance either is itself self-incriminating or will lead to such evidence is always present. This danger justifies ex parte Ake hearings because, first, the defense may curtail its presentation of arguments in support of its request for fear of revealing self-incriminating information and, second, the state has no legitimate interest in adversarial Ake hearings.
An advocate of adversarial Ake hearings might concede the possibility of disclosure of self-incriminating information, but respond that ex parte proceedings are not needed because the trial court could prohibit the state from using any such information unless the defense actually uses at trial the information earlier disclosed.25 The trial court would require the prosecution to prove an independent basis for its knowledge of the self-incriminating information before allowing its introduction at trial. However, this argument overlooks the administrative burdens thereby imposed on the court and fails to consider that this procedure would raise the costs of discovery. The prophylactic measures designed to prevent 5th Amendment violations would be difficult to implement26 and they are unnecessary in any event because the state has no right to an adversarial Ake hearing. Ex parte Ake hearings, therefore, are a sensible solution to the problem of self-incriminating disclosures during requests for expert assistance.
A defendant must also demonstrate that the self-incriminating communication was compelled. Compulsion can exist in the form of either direct external sanctions or as more indirect types of coercion designed to cause self-incriminating disclosures. Direct external sanctions27 are not present in an adversarial Ake hearing, but indirect compulsion inheres in the process.
Courts typically rely on two theories for determining whether a defendant has been indirectly compelled to make self-incriminating disclosures. The first is the "Hobsons choice" theory of indirect compulsion. In Simmons v. United States,28 the United States Supreme Court held that it is "intolerable that one constitutional right should have to be surrendered in order to assert another." The Simmons Court condemned use of a defendants testimony given during a suppression hearing against him at trial because "a defendant who knows that his testimony may be admissible against him at trial will sometimes be deterred from presenting the testimonial proof of standing necessary to assert a Fourth Amendment claim."29
An indigent defendant should not be forced to forego his privilege against self-incrimination to assert his due process right to expert assistance. A defendant in need of expert assistance may be deterred from presenting the full proof necessary to sustain an Ake claim if the state can later use that evidence at trial. The Tennessee Supreme Court recognized this danger in State v. Barnett:30
If ex parte hearings are not required, indigent defendants would, in effect, be penalized for requesting psychiatric expert assistance by being required to disclose [specific facts and circumstances giving rise to the potential insanity defense], . . . and may be deterred from seeking it because of the breadth of disclosure required.31
Requiring a defendant to request expert assistance in an adversarial Ake hearing clearly constitutes compulsion under the "Hobsons choice" theory of indirect compulsion.
Indirect compulsion can also be created when the challenged state practice is outweighed by the defendants privilege against self-incrimination.32 Under this "undue burden" theory, a 5th Amendment violation stems from the impact of the state practice and not simply from the fact that the defendant was confronted with a choice whether to exercise his privilege against self-incrimination.33 In applying the "undue burden" theory to Ake hearings, the question is whether prosecutorial access to information about a defendants case beyond what is allowed by Rule 25.05 and related rules constitutes compulsion.
The accelerated and expanded discovery granted the state whenever a defendant seeks expert assistance in an adversarial Ake hearing constitutes compulsion under the "undue burden" theory. Recall that the "undue burden" theory requires weighing a defendants 5th Amendment interest against the states need for adversarial Ake hearings. The defendants privilege against self-incrimination is of fundamental importance. As such, it weighs heavily in favor of ex parte Ake hearings. By contrast, there simply is no need for adversarial Ake hearings because, as shown in Part II, there are no legitimate state interests uniquely advanced by adversarial Ake hearings or harmed by ex parte requests for expert assistance. Assuming that a defendant procured an expert witness through an ex parte proceeding, Rule 25.05 and related rules still require disclosure to the state if the defense decides to call the witness at trial.
Judicial Conduct and Ex Parte Proceedings
One argument often raised against ex parte Ake hearings is that judges are prohibited from initiating or considering ex parte communications. Such communications are considered inherently inconsistent with impartial performance of the judicial office. Canon 3A(4) of the Code of Judicial Conduct suggests otherwise. The Code does not prohibit in all cases ex parte communications; instead, in pertinent part, it requires that "[a] judge should . . ., except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding." (emphasis added). The Code, therefore, does not hold that all ex parte communications are impermissible. Instead, it says that some ex parte proceedings are legally sanctioned. Ex parte Ake hearings are authorized by law because they are required to preserve due process and to protect a defendants privilege against self-incrimination.
Implementation of Ex Parte Ake Proceedings
Protection of a defendants constitutional rights in the context of requesting and exercising expert assistance requires that the trial court conduct all proceedings regarding such assistance without the prosecutions knowledge of, or participation in, those proceedings. Defense counsel should be allowed to communicate ex parte with the court in chambers and without written documentation in the court files of the specific ex parte request or the courts ruling or order resulting from such request. Alternativel, the court could instruct the clerk to prepare and maintain a clearly marked "ex parte" court file which could be kept separately from other court files in the case. This file would be unavailable to any party but the court, court personnel and defense counsel until the case is disposed of by trial, dismissal or plea. These communications should be part of the trial record, but no transcript of the ex parte proceedings should be available to the state until disposition of the case by trial, dismissal or plea.
Ex parte protection should cover not just the request for expert assistance itself. Additionally, a defendant should be allowed to make ex parte requests for transportation for a mental or physical examination in connection with expert assistance; to gain entrance for any expert to the correctional facility where the defendant is housed; to gain access for any expert to the crime scene or to any physical evidence in the states custody; to obtain records or material from private facilities, etc; and for any related actions required for effective expert assistance. The rationale behind extending ex parte protection to these actions is obvious: Just as the state has no legitimate interest in learning of a request for expert assistance, it has no right to learn of the steps taken by the defense to utilize that assistance.
Conclusion
Indigent criminal defendants possess a due process right to the expert assistance necessary to present a defense.34 The Ake decision did not specify how this right was to be implemented. A defendants 14th Amendment due process right entitles him to ex parte proceedings in connection with expert services because his interest in a fair and accurate adjudication of the charges against him, protected by ex parte proceedings, easily outweighs any state claim in favor of an adversarial Ake hearing. A defendants 5th Amendment privilege against self-incrimination also warrants ex parte Ake proceedings. The information presented in a request for expert assistance always is testimonial and also is self-incriminating in many cases. The states presence at any proceeding in connection with requests for expert assistance constitutes compelled disclosure of this information. Ex parte Ake hearings are consistent with the Code of Judicial Conduct and can be implemented without undue difficulty for the court, the defense or the prosecution. Unless an indigent criminal defendant in need of expert services in the preparation and presentation of his defense is accorded an ex parte Ake hearing, the constitutional promise that "all people charged with crime must stand on an equality before the bar of justice" will go unmet.35
Endnotes
1 The author wishes to thank Jan Zembles, lead trial counsel, Central Capital Litigation Division, Missouri Public Defender System, for her advice concerning this article. Portions of Parts II and V are based on a trial brief prepared by Ms. Zembles. He also wants to thank Paula Hegger for all the good pizza, the bad TV, and the excellent proofreading.
2 470 U.S. 68 (1985). All page references in the text are to this case.
3 See, e.g., Ex Parte Moody, 684 So.2d 114, 119 (Ala. 1996) (defendant entitled to any expert whose assistance is necessary for a fundamentally fair trial), citing Rey v. State, 897 S.W.2d 333, 338 (Tex. Crim. App. 1995); Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir. 1987) (courts should consider how much assistance would be rendered the defense, not the field of expert knowledge involved); Terry v. Rees, 985 F.2d 283, 284-85 (6th Cir. 1993) (defendant entitled to forensic pathologist); Ex Parte State of Alabama, 662 So.2d 1189, 1993 (Ala. 1995) (defendant entitled to DNA expert); State v. Coker, 412 N.W.2d 589, 593 (Iowa 1987) (defendant entitled to expert concerning intoxication defense); Harrison v. State, 635 So.2d 894, 900-02 (Miss. 1994) (defendant entitled to forensic pathologist); State v. Ballard, 428 S.E.2d 178, 180 (N.C. 1993) (Ake applis to many kinds of experts); People v. Young, 189 Cal. App. 3d 891 (Cal. Ct. App. 1987) (indigent defendant entitled to ancillary services reasonably necessary to present a defense). Moreover, the Criminal Justice Act of 1964 provides indigent defendant in federal proceedings with "investigative, expert or other services necessary for adequate representation." 18 U.S.C.A. § 3006a(e)(1) (Supp. 1998).
4 The Court did, however, state in dicta that "[w]hen the defendant is able to make an ex parte threshold showing . . . that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent." Ake, 470 U.S. at 82-83.
5 However, see Washington v. State, 800 P.2d 252, 253 (Okla. Crim. App. 1990) (holding that the Ake Court intended that the evidentiary hearing establishing need for expert assistance be conducted ex parte).
6 See 18 U.S.C.A. § 3006a(e) (Supp. 1998).
7 See, e.g., State v. Barnett, 909 S.W.2d 423, 428 (Tenn. 1995); Brooks v. State, 385 S.E.2d 81, 82-84 (Ga. 1989); People v. Loyer, 425 N.W.2d 714, 721-22 (Mich. Ct. App. 1988); State v. Poulsen, 726 P.2d 1036, 1038 (Wash. Ct. App. 1986); Wall v. State, 715 S.W.2d 208 (Ark. 1986); State v. Touchet, 642 So.2d 1213 (La. 1994); State v. Peeples, 640 N.E.2d 208 (Ohio Ct. App. 1994); McGregor v. State, 754 P.2d 1216, 1217 (Okla. Crim. App. 1988); Arnold v. Higa, 600 P.2d 1383 (Haw. 1979); see also note 3 supra. But see State v. Apelt, 861 P.2d 634 (Ariz. 1993); State v. Floody, 481 N.W.2d 242 (S.D. 1992); Ramdass v. Commonwealth, 437 S.E.2d 566, 571 (Va. 1993).
8 424 U.S. 319 (1976).
9 Id. at 335.
10 Id.
11 The Equal Protection Clause of the 14th Amendment also supports the proposition that indigent defendants are entitled to ex parte proceedings. See, e.g., State v. Barnett, 909 S.W.2d at 428 (indigent defendants should not be forced to reveal defense theories to receive expert assistance when affluent defendants are not); Blazo v. Superior Ct., 315 N.E.2d 857, 860 n.8 (Mass. 1974) ("The reason ex parte application is allowed is that, just as a defendant able to foot the costs need not explain to anyone his reasons for summoning a given witness, so an impecunious defendant should be able to summon his witnesses without explanation that will reach the adversary."); United States v. Theriault, 440 F.2d 713, 717 (5th Cir. 1971) (right to ex parte proceedings founded on both due process grounds and "equality of rights" for indigent defendants).
12 742 P.2d 1306 (Cal. 1987) (discussing statute requiring ex parte application for expert services).
13 Id. at 1322.
14 Section 565.005, RSMo 1994, supplements Rule 25.05 regarding capital cases, providing in pertinent part:
1. At a reasonable time before the commencement of the first stage of any trial of murder in the first degree in which the death penalty is not waived, the state and defendant, upon request and without order of the court, shall serve counsel of the opposing party with: . . .
(2) The names of all persons whom the party intends to call as witnesses at the second stage of the trial; (emphasis added)
15 385 S.E.2d 81, 84 (Ga. 1989).
16 See, e.g., State v. Clemons, 946 S.W.2d 206, 222 (Mo. banc 1997) ("To qualify under Ake, a defendant must allege facts, not state mere legal conclusions or heories, to show the trial court that his or her mental condition is relevant to the issues before the trial court."); State v. Tokar, 918 S.W.2d 753, 764 (Mo. banc 1996) (defendant not entitled to an ex parte hearing to request continuance to obtain additional medical examination); State v. Petary, 781 S.W.2d 534, 540 (Mo. banc 1989) (defendant not entitled to a second psychiatric examination at state expense).
17 See n. 14.
18 State v. Ballard, 428 S.E.2d 178, 180 (N.C. 1993); see also Ex Parte Moody, 684 So.2d 114, 121 (Ala. 1996) ("Requiring an indigent defendant to prematurely disclose evidence in a hearing where the state is present encroaches on the privilege against self-incrimination, which applies at all stages of a criminal proceeding.").
19 Murphy v. Waterfront Commn of N.Y. Harbor, 378 U.S. 52, 55 (1964) (citation omitted); see also generally Miranda v. Arizona, 384 U.S. 436, 458-65 (1966) (discussing history of 5th Amendment).
20 Garner v. United States, 424 U.S. 648, 655-56 (1976).
21 See Schmerber v. California, 384 U.S. 757, 761 (1966).
22 See Charles G. Geyh, The Testimonial Component of the Right Against Self-Incrimination, 36 Cath. U. L. Rev. 611, 637 (1987) (defining a testimonial communication as "transmission or communication of information that tends to substantiate the existence or nonexistence of a fact or other matter").
23 See State v. Clemons, 946 S.W.2d at 222.
24 See Hoffman v. United States, 341 U.S. 479, 486 (1951) ("The privilege against self-incrimination not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute."); see also Marchetti v. United States, 390 U.S. 39, 48-49 (1968) (applying "link in the chain of evidence" standard).
25 See Edward W. Cleary et al. McCormick on Evidence 329 (3d ed. 1984).
26 See generally Gordon Van Kessel, Prosecutorial Discovery and the Privilege Against Self-Incrimination: Accommodation or Capitulation, 4 Hastings Const. L.Q. 855, 96-98 (1977).
27 See, e.g., New Jersey v. Portash, 440 U.S. 450, 459 (1979) (threat of contempt); Marchetti v. United States, 390 U.S. 39, 60-61 (1968) (threat of prosecution for another offense); and Spevack v. Klein, 385 U.S. 511, 514-16 (1967) (threat of loss of employment).
28 390 U.S. 377, 394 (1968) (compulsion to use defendants statements to establish standing at a suppression hearing as incriminating evidence at trial); see also Griffin v. California, 380 U.S. 609, 613-15 (1965) (trial courts comment on defendants failure to testify is compulsion because of burden imposed on exercise of privilege against self-incrimination).
29 Simmons, 390 U.S. at 392-93.
30 909 S.W.2d 423 (Tenn. 1995).
31 Id. at 429.
32 See, e.g., Brooks v. Tennessee, 406 U.S. 605, 607-12 (1972) (requiring a defendant to testify first or not at all is compulsion because states interest in truthful testimony is outweighed by defendants interest in freely deciding whether to remain silent).
33 See Robert P. Mosteller, Discovery Against the Defense: Tilting the Adversarial Balance, 74 Cal. L. Rev. 1567, 1600-02 (1986).
34 See State v. Robinson, 835 S.W.2d 303, 307 (Mo. banc 1992).
35 Griffin v. Illinois, 351 U.S. 12 (1956).
-- Mr. Bassett is a clerk in the Central Capital Litigation Division, Missouri Public Defenders Office, and a member of the Class of 1999 of the University of Missouri-Columbia School of Law.
© 1999, Thomas Bassett