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).
United States v. Pomarleau, 57 MJ 351 (as a matter of military due process, servicemembers are entitled to investigative or other expert assistance when necessary for an adequate defense, without regard to indigency upon a showing that the requested assistance is relevant and necessary to the defense case, and the Government cannot or will not provide an adequate substitute).
(an accused is entitled to expert assistance at the Government’s expense in order to have a meaningful opportunity to present his or her evidence and challenge the Government’s scientific proof, its reliability, and its interpretation when a proper showing of necessity and relevance is made).
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).
(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).
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).