PEOPLE OF MI V GARY MATTHEW CARNICOM
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
October 31, 2006
9:00 a.m.
Plaintiff-Appellee,
v
No. 259713
St. Joseph Circuit Court
LC No. 04-012272-FH
GARY MATTHEW CARNICOM,
Defendant-Appellant.
Official Reported Version
Before: Borrello, P.J., and Jansen and Cooper, JJ.
COOPER, J. (concurring).
The majority finds dispositive defendant's failure to offer any evidence that expert
testimony would likely benefit him. The majority is correct that People v Jacobsen, 448 Mich
639, 641; 532 NW2d 838 (1995), requires such a showing of a nexus between the facts of the case
and the need for an expert. However, because I find the reasoning underlying that conclusion so
circular as to render meaningless the right to appointment of an expert witness, I write separately
to urge the Supreme Court to clarify its opinion in Jacobsen.
Essentially, the argument goes, an indigent defendant may prevail upon the court and the
taxpayers to provide and fund an expert witness if the defendant can make a showing that the
testimony of the expert witness will help his case. Until defendant has engaged an expert witness
to conduct whatever tests are at issue, defendant cannot know how the expert's testimony will be
shaped. And the value, at least to the court and the trier of fact, of an expert is to reach the truth of
a matter by applying scientific, technical, or other specialized knowledge to the facts of the
particular case, not to start with a conclusion and back into it with testing that is designed to
support that conclusion rather than to reach an objective truth. To require a defendant to find an
expert who will say what the defendant wants said without having first performed whatever testing
is necessary to form a conclusion is contrary to that basic principle. And it puts the defendant in
an untenable position, unless the defendant is able somehow to find an expert who is willing to do
the work of preparation on the promise that he will be paid only if and when the court allows him
to testify.
If the court provides to indigent defendants the right to a court appointed and funded expert
witness, there can be no requirement that the defendant first show the expert will support his
claim. Otherwise, the right affords defendants no protection at all.
/s/ Jessica R. Cooper
-1-
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