In the same injury to a child trial I referenced in my post immediately prior, this case was originally set for trial last fall. Defense waited approximately 5 months post-pretrial setting to actually file motions, and finally did so at a hearing prior to a special setting for trial. Told the Judge at that time they'd had problems finding a defense expert. Ultimately the Court continued the special setting due to D's failure to acquire an expert and reset trial for 5 months later. At a hearing last week D told Court again that can't get expert b/c they're "all going" to a medical examiner's conference in GA the week of our trial. D going to request (and probably receive) yet another continuance, despite the fact we're now going on a year since the original trial setting.

I realize the schedule is fully at the discretion of the trial judge. My question is at what point does the D's refusal to obtain an expert and accompanying delay tactics equate to a forfeiture of their right to have an expert? Other than abuse of discretion and the obvious potential claim of ineffective (although atty claims to have consulted w/at least a dozen potential experts), can the Court take the position that the D has a right to consult with an expert and attempt to obtain an expert, but not necessarily the right to ultimately acquire one? (I hope that makes sense) Thoughts?

All of you legal eagles out there feel free to step in and club us over the head with 150 years of caselaw that we're just ignorant of:

Does an indigent Defendant only have the right to have reasonable access and funds available with which to locate an expert witness or does that Defendant have a right to an expert witness such that a trial court would be committing reversible error by forcing that Defendant to trial without the expert despite numerous unsuccessful attempts to obtain one?

The Defendants in this case have had a year in which to obtain expert witness testimony. Our position is that the Defendant does not have the absolute right to have an expert that backs his version, only the right to the time and funds necessary to obtain one within a reasonable time.

Any cases talking about this would be helpful.

It's a due diligence issue like any other. All Ake gives an indigent defendant is the same right to an expert that a wealthier defendant could buy. That doesn't give him the right to put off his trial indefinitely to find an expert.

Right on point is Garay v. State, an unpublished 2003 out of El Paso. 2003 WL 22024820

I was looking on westlaw, and the second case I came to wasn't on point, but I was amused at the expert:

"2. Harry Potter

Mr. Potter testified about the bank's damages from the kite scheme. A reasonable fee for time clearly denoted on his bill for his deposition preparation, travel to the deposition, and deposition testimony is $5,567.00 ."

Too bad Mr. Potter isn't an expert on injury cases.

I would think it would depend on whether the defense has made the predicate showing it needs to that the expert is essential to their defense. I think Andrea is right that just because they are entitled to an appointed expert doesn't mean they have the right to postpone the process indefinitely, just as a wealthier defendant would not be entitled to either. Furthermore, since denial of a continuance is reviewed under an abuse of discretion standard, I would think that if they have exercised due diligence for a year and haven't been able to score an expert, they probably aren't going to. I think your position objecting to further continuances is a reasonable one.