MILITARY JUSTICE PERSONNEL: Defense Function: Experts, Investigators -- Appointment to Defense Team                    


2009 (September Term)


United States v. Anderson, 68 M.J. 378 (servicemembers are entitled to government-provided expert assistance if such assistance is necessary to their defense; the government must provide the expert if the accused establishes that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; to establish the first prong, the accused must show (1) why the expert assistance is needed, (2) what the expert assistance would accomplish for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop; when the defense requests a nonmilitary expert, the defense must provide an estimated cost of employment and illustrate why a military expert would be an inadequate substitute; while the military judge is not required to provide the particular expert requested, if the defense shows that expert assistance is necessary, an adequate substitute must be provided). 

 

(the decision to deny appellant’s request for the expert assistance of a civilian forensic psychologist was not an abuse of discretion in a prosecution for attempting to give intelligence to the enemy; there was no reason beyond a childhood diagnosis of attention deficit disorder and the convening of an RCM 706 board to suggest that appellant might lack the mental capacity to form the specific intent required, and there was no assertion, after appellant’s subsequent request for a government-appointed expert in clinical psychology was granted, that such expert was inadequate). 


2007


United States v. Lee, 64 M.J. 213 (prior to trial, the defense must submit a request for employment of an expert to the convening authority supported, in part, by a statement of reasons why the employment of the expert is necessary; if the request is denied by the convening authority, that request may be renewed at trial before the military judge). 


2005

 

United States v. Kreutzer, 61 M.J. 293 (the right to the expert assistance of a mitigation specialist in a capital case is determined on a case-by-case basis). 

 

(when an accused subject to the death sentence requests a mitigation specialist, trial courts should give such requests careful consideration in view of relevant capital litigation precedent and any denial of such a request should be supported with written findings of fact and conclusions of law; because there is no professional death penalty bar in the military services, it is likely that a mitigation specialist may be the most experienced member of the defense team in capital litigation). 

 

(where a request for the expert assistance of a mitigation specialist is erroneously denied, that ruling implicates the right to present a defense, compulsory process, and due process conferred by the Constitution, the right to obtain witnesses and evidence conferred by Article 46, UCMJ, and the right to the assistance of necessary experts conferred by RCM 703(d)). 

 

(the erroneous denial in capital cases of an accused’s request for the expert assistance of a mitigation specialist to aid in the preparation of the case, is a denial of due process, and as an error of constitutional magnitude, it must be tested for prejudice under the standard of harmless beyond a reasonable doubt).  

 

(although capital cases do not confer a per se right to a mitigation specialist, on a case-by-case basis servicemembers confronted with a capital prosecution are entitled to mitigation specialists where their services would be necessary to the defense team; the UCMJ and the RCM assure that the defense counsel has the resources, including expert assistance, to prepare and present the defense; while the services of a mitigation specialist are commonly used in sentencing, in the appropriate case this expert assistance may be necessary to the defense on findings as well). 

 

2001

United States v. Gunkle, 55 MJ 26 (an accused is entitled to expert assistance provided by the government if he can demonstrate necessity; to demonstrate necessity, an accused must demonstrate something more than a mere possibility of assistance from a requested expert – an accused must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that the denial of expert assistance would result in a fundamentally unfair trial).

(there is a three-part test for determining the necessity for expert assistance provided by the government: (1) why is the expert needed; (2) what would the expert accomplish for the defense; and (3) why is the defense counsel unable to gather and present the evidence that the expert assistance would be able to develop).

(any error in military judge’s denial of a defense request for pretrial expert assistance was rendered moot because appellant received the expert assistance he sought, albeit at his own expense).

United States v. McAllister, 55 MJ 270 (in support of a request for expert assistance, an accused must demonstrate the necessity for such assistance).

(an accused is not entitled to a specific expert of his own choosing, but is entitled only to competent assistance).

(a military judge's decision on a request for expert assistance is reviewed for abuse of discretion).

(with the rapid growth of forensic science techniques, it has become increasingly apparent that complex cases require more than general practitioners as experts).

(military judge abused her discretion in denying defense request to substitute one expert witness for a purportedly more qualified expert where: (1) prosecution's own expert testified that in the short time between the DNA testing of the evidence in this case and appellant's trial, tests for two additional genetic systems were implemented at her laboratory; (2) there were no DNA testing laboratories in Hawaii, the trial situs; (3) the expert initially hired by the defense lacked expertise in forensic testing and informed the defense that appellant needed an expert in forensic PCR testing; (4) the substitution of experts to the defense team would not have incurred any increased cost to the government; (5) the government did not assert that any resultant 6 to 8 week delay would prejudice the government's case, and there was no indication that the prosecution would have been prejudiced; (6) DNA evidence was the linchpin of the prosecution case, but may have been incomplete in that evidence was not subjected to two additional genetic systems tests that were developed after the government's evidence was first developed; (7) it was clear from the record that the defense needed expert assistance in the technical aspects of PCR testing, and not just generalized expertise in genetic medical diagnosis; (8) the military judge did not fully appreciate the complexities or importance of the DNA evidence and the rapidly advancing technology in DNA testing; (9) the defense request was timely; (10) there was no evidence of bad faith or witness shopping; and (11) the military judge focused on taking the defense counsel to task for requesting an initial expert who was either unable or unwilling to provide what the defense actually needed, rather than focusing on whether the initial expert was able or willing to provide the needed expert assistance).

United States v. Dimberio, 56 MJ 20 (the Equal Protection Clause, Due Process Clause, and the Manual for Courts-Martial each provide that the servicemember- accused is entitled to expert assistance when necessary for an adequate defense).

1999

United States v. Short, 50 MJ 370 (under RCM 703(d), an accused is authorized expert assistance at Government expense when the Government cannot provide an adequate substitute and the defense makes a showing of necessity; the defense must show:  (1) why expert assistance is needed, (2) what expert assistance would accomplish for the accused, and (3) why the defense counsel is unable to gather and present the evidence that the expert assistant would be able to develop).

(defense counsel’s showing of necessity for appointment of expert assistant in urinalysis case was inadequate where:  (1) counsel did not show this was not “the usual case”; (2) counsel was inexperienced in urinalysis cases and could get assistance from more experienced counsel; (3) defense counsel declined to talk to an expert who was made available even though that expert was scheduled to testify at trial; and (4) defense counsel did not renew request for assistance after having a week to seek guidance form more experienced counsel and talk to proffered expert).

United States v. Gray, 51 MJ 1 (appellant was not provided inadequate psychiatric assistance where:  (1) he was provided two qualified psychiatric experts of his own choosing prior to trial; (2) the defense experts provided appellant with favorable testimony, although not perhaps to the degree he desired; and, (3) any alleged deficiencies were obviated by the additional testing ordered in this case which produced substantially the same results).

(an accused has the right to investigative assistance at the expense of the government where he can meet a three-step test for determining necessity:  (1) why the expert or investigator is needed; (2) what the investigative or expert assistance would accomplish for the accused; and, (3) why the defense counsel is unable to gather and present the evidence that the expert or investigative assistant would be able to develop).

(military judge did not abuse his discretion in denying further expert assistance where:  (1) defense request went beyond request for necessary investigative assistance; (2) the defense request essentially argued that prior assistance was not helpful to the defense; and, (3) the request failed to provide concrete explanation of need for further assistance).

(Court of Military Review (now Court of Criminal Appeals) decision denying funding for additional appellate expert mental health assistance was not an abuse of discretion where that court had sufficient basis in the record for considering the mental-state issues before it and concluded that additional defense psychiatric expenditures were not reasonably necessary).

(appellant was not denied equal protection by Judge Advocate General’s decision to establish and adhere to procedures to request funding for additional appellate expert mental health assistance where:  (1) death-penalty inmates who submit requests for expert assistance after the new policy became effective were not considered a suspect class; (2) the procedures established were not unreasonable; and, (3) prior funding to other death-penalty inmates did not create any fundamental constitutional right for capital defendants to initially request the Judge Advocate General to provide such funding).

(appellant was not denied due process by Judge Advocate General’s decision to establish and adhere to procedures to request funding for additional appellate expert mental health assistance where those procedures forwarded such requests to the appropriate forum for consideration and action in a more efficient manner).

United States v. Ford, 51 MJ 445 (defense is authorized the employment of experts at government expense where the testimony would be “relevant and necessary,” if the government cannot or will not provide an adequate substitute; the test for necessity has three prongs:  (1) why is the expert assistance needed; (2) what would the expert assistance accomplish for the accused; and (3) why is the defense counsel unable to gather and present the evidence that the expert assistant would be able to develop).

(military judge did not abuse his discretion in denying defense request for expert where:  (1) government made a forensic chemist and an explosives expert available; (2) defense conceded at trial that the expert proffered by the government was an expert; (3) the record did not show any efforts on the part of the defense to determine if an expert existed who could contradict the government expert; and (4) the record did not show any independent research by the defense or any specific basis for questioning the government expert). 


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