An expert on drunkenness may be called as a witness in a Buffalo, New York manslaughter trial. The proposed expert would be basing his testimony on the science of neurology rather than personal experience. The question is whether the court will agree to fund the expert.
The manslaughter charge
Paul Flynn is charged in Niagra County Court with causing the death of Clyde Mullen. According to one witness, Flynn and Mullen were arguing over a can of beer when Flynn grabbed Mullen by the neck and threw him down a short flight of porch stairs. A different witness said that Flynn shoved Mullen and that Mullen then fell down the steps.
Mullen remained in intensive care for several days before he died. Flynn has denied choking Mullen and said that he never intended to hurt him.
The police originally arrested Flynn for assault. Flynn was charged with second degree murder after Mullen died, but the grand jury refused to indict Flynn for that offense. The grand jury instead indicted him on a charge of first-degree manslaughter.
Flynn’s trial is scheduled to begin in September.
The intoxication issue
When police questioned Flynn, he did not appear to be under the influence of alcohol. A test of Mullen’s blood revealed a blood alcohol concentration of 0.31, a level that would be close to lethal for someone who had not developed a strong tolerance of alcohol.
Flynn’s lawyer, Brian Hutchison, wants to hire a neurologist to testify about how high levels of alcohol “affect a person physically and psychologically.” Hutchison told the court that the impact of Mullen’s intoxication upon his behavior was a material issue in the case. His proposed expert, Dr. Francis Gengo, is a professor at the University at Buffalo.
Funding the expert
In some jurisdictions, whether an expert would be allowed to testify about the impact of alcohol on an alleged victim might be questionable. Some judges might conclude that the association between intoxication and behavior is common knowledge and that an expert would not be able to provide the jury with helpful information.
At least according to news coverage to date, the issue of the proposed expert testimony in Flynn’s case is not whether the testimony would be admissible but whether the court is willing to pay for it. Hutchison is court-appointed, presumably because Flynn is indigent. If he plans to hire an expert, he must obtain the court’s approval to pay for the expert.
Defendants who have the resources to hire their own experts have a significant advantage over defendants who must rely upon a public defender’s office or appointed counsel. A wealthy defendant can hire the best expert that he or she can afford. An indigent defendant must cope with limited state budgets and judges or administrators who are reluctant to spend taxpayer’s money to assure that indigent defendants benefit from the same expert testimony that more affluent defendants would have.
Most courts have agreed that the right of indigent defendants to hire necessary experts is assured by the Due Process Clause (which guarantees the right to a fair trial), the Equal Protection Clause (which guarantees that poverty should not deprive a defendant of a fair trial), or the Compulsory Process Clause (which guarantees the right to call witnesses who can provide exculpatory testimony). Yet the contours and limits of that right are often unclear.
When is a proposed expert too expensive?
Just as the right to be represented by a lawyer does not guarantee the right to be represented by the best or most expensive lawyer, the right to call expert witnesses does not assure that indigent defendants will receive funding for the best or most expensive experts. Although Flynn faces a potential 25 year prison sentence, the judge balked at paying for the services of Dr. Gengo.
The judge told Hutchison that New York law limits payment of expert witness fees to $1,000 unless there are “extraordinary circumstances.” While news reports do not say how much money Hutchison was seeking, they do quote the judge as complaining that Gengo “seems very expensive.” The judge is also quoted as asking “Why do you need the most expensive guy out there?” The judge reportedly told Hutchison to “see if he can hire someone who’s good enough for under $1,000” and, if not, to get started with Gengo for $1,000 and ask for more money later.
A thousand dollars seems like a paltry sum when a quarter century of a defendant’s life is at stake. Unfortunately, when state legislators set funding limits for experts, they rarely adjust them for inflation as the years go by. Whether Hutchison will be able to find a less expensive expert who is “good enough” for $1,000 or whether he will persuade the court that “extraordinary circumstances” justify spending more money remains to be seen.