12. Expert Witnesses

Last Updated: 5/10/22

CHAPTER 12

Expert Witnesses

1.       References
2.       Introduction
3.       Expert Testimony Generally
4.       Production of Experts for the Defense

 

I. REFERENCES

A. UCMJ, art. 46

B. Rule for Courts-Martial 703

C. Military Rules of Evidence 701–706

II. Introduction

A. Some cases demand investigation and proof in matters involving highly technical evidence. Common examples are DNA, digital forensics, and various fields in medicine and mental health. Experts aid during investigative phases of a case in the collection and analysis of evidence; prior to trial in the preparation of cases; and during trial in the presentation of evidence and the consideration of that evidence by the members at trial. Ultimately, the purpose of an expert consultant or witness is to enable counsel, the judge, or the members to understand and apply information to their respective role in the military justice process.

B. Prior to trial, the government may employ one or more experts in preparing its case.  Experts may also be essential government witnesses where the case involves understanding complex concepts related to computers, medicine, or other fields.

C. An “expert consultant” is someone detailed to the defense team to assist the accused and defense counsel during the investigative stage of the trial process, although expert assistance can be requested for any stage.  Expert consultants commonly assist defense counsel in the evaluation of scientific or technical evidence the government intends to offer at trial.  In addition, expert consultants can also be helpful in evaluating and presenting certain defenses, and in the areas of mitigation, member selection, evaluation of physical evidence, or in providing a psychological evaluation of the accused.  Like the government, the defense may use expert witnesses at trial to testify regarding complex subject matter. 

D. Rule framework:

1. The production of expert consultants and witnesses is governed by RCM 703;

2. The qualifications of experts are governed by MRE 702;

3. In general, the question of admissibility follows this line of questions:

a) Is the expert qualified?

b) Does the expert’s testimony help the factfinder understand other evidence or determine a fact in issue?

c) Is the testimony derived from a proper source?

d) Is the testimony relevant?

e) Is the testimony based on reliable methods?

f) Were those methods reliably applied to the facts of this case?

g) Is the probative value of the testimony substantially outweighed by the danger of unfair prejudice?

4. If relevant, expert testimony and opinions are presumptively admissible unless they fail balancing under MRE 403, the witness is not qualified, or the testimony is based on an improper basis under MRE 702 or 703;

5. Questions regarding expert production, qualifications, and the admissibility of expert testimony are resolved by the military judge under MRE 104(a);

6. Once an expert testifies, the facts and data underlying the expert’s opinion are ripe for cross-examination.

III. EXPERT TESTIMONY GENERALLY

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

A. The requirements of MRE 702(a) through (d) are stated in the conjunctive, and a party seeking admission of expert testimony must meet all of the rule’s requirements.  Preliminary questions concerning the availability, qualifications, relevance, propriety, and necessity of expert testimony are matters which must be determined by the military judge.  MRE 104(a).

B. In United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993), the CAAF set out six factors that a judge should use to determine the admissibility of expert testimony.  CAAF continues to apply the Houser factors, which are similar to the requirements of MRE 702:  

1. Qualified Expert.  To give expert testimony, a witness must qualify as an expert by virtue of his or her “knowledge, skill, experience, training, or education.”  See MRE 702.

2. Proper Subject Matter.  Expert testimony is appropriate if it would be “helpful” to the trier of fact.  It is essential if the trier of fact could not otherwise be expected to understand the issues and rationally resolve them.  See MRE 702.

3. Proper Basis.  The expert’s opinion may be based on admissible evidence “perceived by or made known to the expert at or before the hearing” or inadmissible hearsay if it is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. . . .”  The expert’s opinion must have an adequate factual basis and cannot be simply a bare opinion.  See MREs 702 and 703.

4. Relevant.  Expert testimony must be relevant.  See MRE 401.

5. Reliable.  The expert’s methodology and conclusions must be reliable.  See MRE 702.

6. Probative Value.  The probative value of the expert’s opinion and the information comprising the basis of the opinion must not be substantially outweighed by any unfair prejudice that could result from the expert’s testimony.  See MRE 403.

C. Qualified expert:  the expert’s qualification to form an opinion.

1. Expertise based on knowledge can be established by:

a) Degrees attained from educational institutions;

b) Specialized training in the field;

c) Witness has maintained licensure in a particular field and has done so (if applicable) for a sufficient period of time;

d) Teaching experience in the field;

e) Witness publications;

f) Membership in professional organizations, honors or prizes received, previous expert testimony.

2. Expertise based on skill and experience.  An expert due to specialized knowledge.  See United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986).

a) United States v. Meeks, 35 M.J. 64 (C.M.A. 1992):  involved testimony by an FBI agent concerning his “crime scene analysis” of a double homicide.  The testimony included observations that the killer was an “organized individual” who had planned and spent some time in preparation for the crime, was familiar with the crime scene and victims, and acted alone.  Such evidence was not too speculative for admission under MRE 702.

b) United States v. Banks, 36 M.J. 150 (C.M.A. 1992):  Military judge erred when he refused to allow defense clinical psychologist to testify about the relevance of specific measurements for a normal prepubescent vagina, solely because the psychologist was not a medical doctor.  As the court noted, testimony from a qualified expert, not proffered as a medical doctor, would have assisted the panel in understanding the government’s evidence.

c) United States v. Harris, 46 M.J. 221 (C.A.A.F. 1997):  Military Judge did not err in qualifying a highway patrolman who investigated over 1500 accidents, as an expert in accident reconstruction. 

d) United States v. Billings, 61 M.J. 163 (C.A.A.F. 2005):  To link appellant to a stolen (and never recovered) Cartier Tank Francaise watch, the government called a local jeweler as an expert witness to testify that a watch the appellant was wearing in a photograph had similar characteristics as a Tank Francaise watch.  Although the jeweler had never actually seen a Tank Francaise watch, his twenty-five years of experience and general familiarity with the characteristics of Cartier watches qualified him as a technical expert.

e) United States v. Flescher, 73 M.J. 303 (C.A.A.F. 2014): The military judge did not hold a Daubert hearing and failed to properly establish the qualifications of a Sexual Assault Response Coordinator to testify as an expert on counterintuitive victim behaviors.  The fact that an expert may be qualified by experience does not mean that experience, standing alone, is sufficient foundation rendering reliable any conceivable opinion the expert may express; if the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion and how that experience is reliably applied to the facts; and the military judge should state on the record why he concludes that such a witness’s testimony is reliable.  Because the witness was not qualified, testified on improper bases during the testimony, and provided some testimony which was either not relevant or improper bolstering of the victim, trial judge abused his discretion in admitting the evidence. The error was not harmless beyond a reasonable doubt. CAAF set aside the findings on aggravated sexual assault, and the sentence.

D. Proper subject matter.  MRE 702(a).

1. Helpfulness:  Expert testimony is admissible if it will assist the fact finder.  There are two primary ways an expert’s testimony may assist the fact finder:

a) Complex testimony:  Experts can explain complex matters such as scientific evidence or extremely technical information that the fact finder could not understand without expert testimony.

b) Unusual applications:  Experts can also help explain apparently ordinary evidence that may have unusual applications; without the expert’s assistance, the fact finders may misinterpret the evidence.  United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998); United States v. Brown, 49 M.J. 448 (C.A.A.F. 1998).

(1) United States v. Hall, 165 F.3d 1095 (7^th Cir. 1999): The trial judge did not abuse his discretion in excluding the defense expert on eyewitness identification.  Even if the evidence meets the reliability prong of Daubert, it must also meet the helpfulness prong.  Here the judge properly ruled that such testimony is not beyond the ken of lay jurors and there was no need for expert opinion testimony.

(2) United States v. Dimberio, 52 M.J. 550 (A.F. Ct. Crim. App. 1999):  Military judge excluded testimony of defense expert who would testify about the alcoholism and mental problems of the accused’s wife.  AFCCA affirmed and held the evidence was irrelevant because there was no link between her problems and her alleged violence.  The testimony was impermissible profile evidence.

(3) United States v. Traum, 60 M.J. 226 (C.A.A.F. 2004):  To answer the question of why a parent would kill her child, the government called a forensic pediatrician, who testified to the following matters: (1) overwhelmingly, the most likely person to kill a child would be his or her biological parent; (2) the most common cause of trauma death for children under four is child maltreatment; (3) for 80% of child abuse fatalities, there are no prior instances of reported abuse; (4) victim died of non-accidental asphyxiation.  CAAF held that there was no error in admitting “victim profile” evidence regarding the most common cause of trauma death in children under four and the fact that most child abuse deaths involve first-time abuse reports for that child.  CAAF held that the military judge erred in admitting evidence that overwhelmingly, the most likely person to kill a child is its biological parent.  In context, however, the error was harmless because the government already had admitted the appellant’s confession.

(4) United States v. Bresnahan, 62 M.J. 137 (C.A.A.F. 2005):  CAAF held that the appellant was not entitled to a false confession expert consultant absent evidence of abnormal mental condition, submissive personality, or other factors suggesting that the confession was actually false. 

(5) Child Abuse Accommodation Syndrome.  United States v. Suarez, 35 M.J. 374 (C.M.A. 1992):  In trial for child sex abuse crimes, evidence was received on how the victim exhibited “Child Sexual Abuse Accommodation Syndrome” (children change or recant their stories, delay or fail to report abuse, accommodate themselves to the abuse).  While such evidence is controversial, it may be admitted where it explains the abused child’s delay or recantation, as in this case.  See also United States v. Cacy, 43 M.J. 214 (C.A.A.F. 1995).

2. Form of the opinion.  The foundation consists of no more than determining that the witness has formed an opinion, and what that opinion is.

E. Proper basis: The language of the rule is broad enough to allow at least three types of bases: facts personally observed by the expert; facts posed in a hypothetical question; and hearsay reports from third parties. However, expert testimony must be based on the facts of the case being tried.

1. There must be some basis for the opinion.  United States v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000):  During the sentencing phase, the government called an expert on future dangerousness of the accused.  The expert said he could not diagnose the accused because he had not interviewed him nor had he reviewed his medical records.  In spite of this and objections by defense counsel, the expert did testify about pedophilia and made a strong inference that the accused was a pedophile who had little hope of rehabilitation.  CAAF held it was error for the judge to admit this evidence.  Citing Houser, the court noted the expert lacked proper foundation for this testimony, as noted by his own statements that he could not perform a diagnosis because of his lack of contact with the accused.

2. Personal perception.  United States v. Hammond, 17 M.J. 218 (C.M.A. 1984):  The fact that expert did not interview or counsel victim did not render expert unqualified to arrive at an opinion concerning rape trauma syndrome.  United States v. Snodgrass, 22 M.J. 866 (A.C.M.R. 1986).  Defense objected to social worker’s opinion that victim was exhibiting symptoms consistent with rape trauma accommodation syndrome and suffered from PTSD on basis that opinion was based solely on observing victim in court, reading reports of others and assuming facts as alleged by victim were true.  Objection went to weight to be given expert opinion, not admissibility.  United States v. Raya, 45 M.J. 251 (C.A.A.F. 1996).  The foundational elements include:

a) Where and when the witness observed the fact;

b) Who was present;

c) How the witness observed the fact; and

d) A description of the observed fact.

3. Hypothetical questions (no longer required):  No need to assume facts in evidence, but, if used, must be reasonable in light of the evidence.  United States v. Breuer, 14 M.J. 723 (A.F.C.M.R. 1982). The proponent may specify historical facts for the expert to assume as true, or may have the expert assume the truth of another witness or witnesses.

4. Hearsay reports of third parties are admissible, provided the Confrontation Clause and other MREs are satisfied: 

a) The elements of the foundation for this basis include:

(1) The source of the third party report;

(2) The facts or data in the report;

(3) If the facts are inadmissible, a showing that they are nonetheless of the type reasonably relied upon by experts in the particular field.

b) United States v. Sims, 514 F.2d 147 (9th Cir.), cert. denied, 423 U.S. 845 (1975):  “The rationale in favor of admissibility of expert testimony based on hearsay is that the expert is fully capable of judging for himself what is, or is not, a reliable basis for his opinion.  This relates directly to one of the functions of the expert witness, namely to lend his special expertise to the issue before him.”  However, the testimony of an expert witness does not permit “smuggling in” otherwise inadmissible hearsay evidence.

c) United States v. Katso, 74 M.J. 273 (C.A.A.F. 2015):  An expert may rely on otherwise inadmissible testimonial hearsay in formulating an admissible opinion. The question of admissibility in these cases is the degree to which the testifying expert conducts an independent analysis in reaching the offered opinion.

d) United States v. Neeley, 25 M.J. 105 (C.M.A. 1987), cert. denied, 484 U.S. 1011 (1988):  Psychiatrist’s testimony that she consulted with other psychologists in reaching her conclusion that accused had inflated results of psychiatric tests and her opinion was the consensus among these people was hearsay and inadmissible.  Military judge may conduct MRE 403 balancing to determine if the probative value of this foundation evidence is outweighed by unfair prejudice. 

e) United States v. Halford, 50 M.J. 402 (C.A.A.F. 1999):  Defense was not allowed to cross-examine government expert about contrary opinions from two colleagues  Defense did not call the two as witnesses and there was no evidence the government expert relied on the opinions of these colleagues.  CAAF held the MJ did not err in excluding this questioning as impermissible smuggling under MRE 703.

f) For more information on the admissibility of hearsay reports through experts, refer to the Deskbook Chapter on the Confrontation Clause.

5. Disclosing basis for the opinion

a) Proponent can disclose inadmissible bases of an expert’s opinion (e.g., hearsay that the expert relied on) to the members if the military judge determines that the probative value in helping the members evaluate the opinion outweighs the prejudicial effect.  MRE 703. 

(1) Although an expert can rely on testimonial hearsay in forming his opinion, MRE 703 cannot be used to circumvent the Confrontation Clause through the expert by using the expert to disclose testimonial hearsay.  United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010).

(2) The military judge should give a limiting instruction to the panel.  MRE 105. 

b) An opposing party can request that the military judge order the proponent of the expert to disclose the facts/data that underline his opinion, and then cross examine the expert on that information.  MRE 705.

F. Relevance:  Expert testimony, like any other testimony must be relevant to an issue at trial.  MRE 401; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  The standard for relevance is low, and MRE 402 reflects a strong bias in favor of admissibility for relevant evidence.

G. Reliability:

1. The reliability test for scientific evidence.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993):  In Daubert, the Supreme Court held that nothing in the Federal Rules indicates that “general acceptance” is a precondition to admission of scientific evidence.  The rules assign the task to the judge to ensure that expert testimony rests on a reliable basis and is relevant.  The judge assesses the principles and methodologies of such evidence pursuant to MRE 104(a).

a) The role of the judge as a “gatekeeper” leads to a determination of whether the evidence is based on a methodology that is “scientific,” and therefore reliable.  The judgment is made before the evidence is admitted, and entails “a preliminary assessment of whether the reasoning or methodology is scientifically valid.”  Trial court possesses broad discretion in admitting expert testimony with rulings tested only for abuse of discretion.  General Electric Co. v. Joiner, 118 S. Ct. 512 (1997); see also United States v. Kaspers, 47 M.J. 176 (C.A.A.F. 1997).

b) Daubert factors:  The Supreme Court discussed a nonexclusive list of factors to consider in admitting scientific evidence, which included the Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), “general acceptance” test as a separate consideration:

(1) Whether the theory or technique can be and has been tested;

(2) Whether the theory or technique has been subjected to peer review and publication;

(3) Whether the known or potential rate of error is acceptable;

(4) Whether the theory/technique enjoys widespread  acceptance.

c) After Daubert, “helpfulness” alone will not guarantee admission of evidence because it does not guarantee “reliability.” 

(1) Examples:

(a) DNA testing.  United States v. Thomas, 43 M.J. 626 (A.F. Ct. Crim. App. 1995):  The military judge did not abuse his discretion in admitting DNA results obtained by PCR methodology.  Judge properly applied Daubert factors and any weaknesses in PCR methodology go to weight not admissibility.

(b) DNA testing:  United States v. Henning, 75 M.J. 187 (C.A.A.F. 2016):  CAAF again visited the issue of experts, technical evidence, and reliability. Applying both Houser and Daubert, the court held the military judge did not abuse his discretion by excluding DNA evidence and the testimony of an expert accompanying that evidence where the trial judge determined that the methods used in producing that evidence were not sufficiently reliable.

(c) Luminol testing.  United States v. Hill, 41 M.J. 596 (Army Ct. Crim. App. 1994):  Luminol tests satisfy the Daubert criteria where testimony is limited to an opinion that positive results only show a presumptive positive for blood.  See also United States v. Holt, 46 M.J. 853 (N-M Ct. Crim. App. 1997); United States v. Schlamer, 47 M.J. 670 (N-M Ct. Crim. App. 1997).

(d) Chemical hair analysis.  United States v. Nimmer, 43 M.J. 252 (C.A.A.F. 1995):  Case remanded in order to allow the lower court to apply the Daubert model to RIA and GC/MS testing for the presence of cocaine.  See also United States v. Bush, 44 M.J. 646 (A.F. Ct. Crim. App. 1996) (military judge did not abuse his discretion in applying Daubert factors and permitting analysis of the accused’s hair to go before the members). 

2. The reliability test for nonscientific evidence.  Kumho Tire v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999):  Supreme Court held the trial judge’s gatekeeping responsibility applies to all types of expert evidence, and that the Daubert factors apply to non-scientific evidence also.  To the extent the Daubert factors apply, they can be used to evaluate the reliability of this evidence; factors other than those announced in Daubert can also be used to evaluate the reliability of non-scientific expert evidence.

a) Other factors courts have considered to evaluate the reliability of scientific and non-scientific testimony include:

(1) Was the information developed for the purpose of litigation?

(2) Did the expert unjustifiably extrapolate facts to support conclusions?

(3) Are there alternative explanations?

(4) Is the expert being as careful as they would be in their regular professional work outside paid litigation?

(5) Is there a well-accepted body of learning in this area?

(6) How much practical experience does the expert have and is there a close fit between the experience and the testimony?

(7) Is the testimony based on objective observations and standards?

3. Application of Daubert/Kumho Tire

a) Blood spatter:  United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986), cert. denied, 479 U.S. 953 (1986):  In this pre-Daubert case involving blood-spatter evidence, the court used a three-step analysis.  First, does the evidence involve an area of specialized knowledge?  Second, would the expert testimony be relevant (helpful) to the trier of fact?  Third, is the expert qualified to testify?  After Kumho Tire, this minimal inquiry may not be sufficient.  The trial judge should do more than consider the expert’s qualifications in making the reliability determination.

b) Drug testing:

(1) United States v. Campbell, 50 M.J. 154 (C.A.A.F. 1999):  Defense claimed that the lab’s use of GC/MS to determine the existence of LSD in urine failed under Daubert.  CAAF reversed the case because the government failed to show that the 200 PG/ML established by DoD adequately accounted for innocent ingestion.  On reconsideration, CAAF clarified its opinion in Campbell at 52 M.J. 386 (2000). In a urinalysis case, the government can show wrongful use by expert testimony that meets this 3-part test: (1) proof must show that the metabolite is not naturally produced by the body; (2) cutoff level and concentration are high enough to reasonably discount innocent ingestion; (3) testing method reliably detected and quantified the concentration.  The 3-part test is not required if the evidence can explain, with equivalent persuasiveness, the underlying scientific methodology and significance of test results.

(2) United States v. Green, 55 M.J. 76 (C.A.A.F. 2001):  CAAF held that a positive urinalysis, accompanied by the testimony of an expert witness interpreting the result, was sufficient to support the permissive inference of knowing and wrongful use of cocaine.

c) Sleep disorders.  United States v. Blaney, 50 M.J. 533 (A.F. Ct. Crim. App. 1999):  Accused charged with sodomizing a male victim while the victim was asleep.  Defense wanted to admit the testimony of two experts to testify about the victim’s alleged sleep disorders.  Military judge excluded the testimony and AFCCA affirmed.  Court held that under Daubert, the expert’s methodologies were unreliable and not helpful because the victim had not been interviewed. 

d) False confessions.  United States v. Griffin, 50 M.J. 278 (C.A.A.F. 1999):  CAAF held military judge did not abuse his discretion in excluding the testimony of an expert in false confessions.  The court reasoned that no witness could serve as a human lie detector, and in this case the evidence was unreliable because there was no correlation between the expert’s studies and the accused in this case.  In the future, no per se exclusion may be admissible if testimony is limited to factors and there is a close correlation between the study group and the accused at trial.   

e) Dysfunctional family profile evidence. 

(1) United States v. Banks, 36 M.J. 150 (C.M.A. 1992): Error to present expert testimony that accused’s family was in a situation that was ripe for child sexual abuse.  The expert testified by presenting characteristics of a family that included a child sexual abuser.  Then pursuing a deductive scheme of reasoning, the expert opined that families with the profile present an increased risk of child sexual abuse.  Finally, the expert testified that the Banks family fit the profile.

(2) United States v. Pagel, 45 M.J. 64 (C.A.A.F. 1996): No abuse of discretion in allowing government expert to testify concerning a dysfunctional family “profile” and whether the accused’s family displayed any of its characteristics.  Testimony went to support credibility of daughter’s accusations and to explain her admitted unusual behavior.  Unlike in Banks, evidence used to explain the behavior of the victim on the assumption she was abused by someone, not necessarily the accused.  Using “profile” evidence to explain the counter-intuitive behavioral characteristics of sexual abuse victims was permissible.

f) Rape trauma syndrome.  United States v. Carter, 26 M.J. 428 (C.M.A. 1988):  Rape trauma is a subcategory of PTSD in the DSM-IV.  The psychiatric community recognizes it as valid and reliable.  Evidence may assist factfinder by providing knowledge concerning victim’s reaction to assault.  Rape trauma syndrome evidence will also assist the trier of fact in determining the issue of consent.  This would be particularly true where members would likely have little or no experience with victims of rape.  See also United States v. Cox, 23 M.J. 808 (N.M.C.M.R. 1986); United States v. Halford, 50 M.J. 402 (C.A.A.F. 1999). 

(1) Impermissible Testimony.  United States v. Bostick, 33 M.J. 849 (A.C.M.R. 1991):  Psychologist impermissibly expressed an opinion concerning the rape victim’s credibility by discussing the performance of the victim on a “Rape Aftermath Symptoms Test” (RAST) and by stating that the victim did not fake or feign her condition.  The expert thus became a “human lie detector.”  The RAST failed to meet the requirements for admissibility of scientific testimony (lack of foundation).  Despite lack of defense objection, the court finds plain error and sets aside findings and sentence.

g) Handwriting analysis:  Two more district courts are following the trend to limit the expert’s testimony to characteristics and prevent them from either testifying that a certain individual was the author of a questioned document or to their degree of certainty.  United States v. Rutherford, 104 F. Supp. 2d 1190 (D. Neb. 2000); United States v. Santillan, 1999 U.S. Dist. Lexis 21611 (N.D. Ca. 1999).

h) Hypnosis:  Admissible if the military judge finds that the use of hypnosis was reasonably likely to result in recall comparable in accuracy to normal human memory.  United States v. Harrington, 18 M.J. 797 (A.C.M.R. 1984); Rock v. Arkansas, 483 U.S. 44 (1987).  Proponent must show by clear and convincing evidence satisfaction of the following procedural safeguards: 

(1) Independent, experienced hypnotist conducted the session.

(2) Hypnotist not regularly employed by the parties.

(3) Information revealed to the hypnotist is recorded.

(4) Detailed statement must be obtained from the witness in advance.

(5) Only hypnotist and subject present during session.

i) DNA:  United States v. Youngberg, 43 M.J. 379 (C.A.A.F. 1995) (evidence of DNA testing is admissible at courts-martial if proper foundation is laid); United States v. Davis, 40 F.3d 1069 (10th Cir), cert. denied, 115 S. Ct. 1387 (1995) (statistical probabilities are basic to DNA analysis and their use has been widely researched and discussed). 

j) Psychological autopsy

(1) United States v. St. Jean, 45 M.J. 435 (C.A.A.F. 1996):  No error in allowing forensic psychologist to testify about suicide profiles and that his “psychological autopsy” revealed it was unlikely the deceased committed suicide.

(2) United States v. Huberty, 53 M.J. 369 (C.A.A.F. 2000):  Applying Daubert and Kumho Tire the CAAF affirmed the military judge’s decision to exclude an expert’s opinion that the accused was not an exhibitionist.  The court noted that there was no body of scientific knowledge to support the expert’s claim that the MMPI could be used to conclude that an individual was not an exhibitionist and could not have committed a crime.

k) Eyewitness Identification.  United States v. Garcia, 44 M.J. 27 (C.A.A.F. 1996), cert. denied, 117 S. Ct. 174 (1996):  Abuse of discretion, though harmless, to limit testimony concerning the unreliability of eyewitness identification by preventing testimony on the inverse relationship between confidence and accuracy in identifications and theories of memory transference and transposition.

(1) United States v. Smithers, 212 F.3d 306 (6th Cir. 2000):  Trial judge abused his discretion by excluding a defense expert on the weaknesses of eyewitness identification.  The trial judge’s comments that he wanted to “experiment” were indicative of the abuse of his discretion, as was his failure to even conduct a Daubert-type reliability hearing.

l) Gang activity.  United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000):  The accused was charged with conspiracy and distribution of drugs.  Accused was a member of a gang and a co-accused and other witnesses testified for the defense and denied any wrongdoing.  In rebuttal the government called a police officer to render an expert opinion that part of the gang affiliation code was not to testify against another gang member or suffer physical injury.  Defense said the witness’s opinion was not reliable and more prejudicial than probative. The 9th Circuit, applying Kumho Tire, said the judge did not abuse his discretion in admitting this evidence.

m) Behavioral aspects of child pornographers.  United States v. Hays, 62 M.J. 158 (C.A.A.F. 2005):  CAAF held the military judge did not abuse her discretion in admitting testimony of an FBI expert on the behavioral aspects of victimization of children.  The expert testified that appellant’s email was an attempt to persuade another person to sexually abuse a child and photograph it in exchange for similar acts from the appellant at a future date.

n) Future dangerousness.  United States v. Latorre, 53 M.J. 179 (C.A.A.F. 2000):  Accused pleaded guilty to sodomizing a 7-year old girl.  In sentencing, the government expert testified, in response to both defense and government questioning, that during treatment most sexual offenders admit to other sexual assaults.  On appeal, defense claimed it was error for the expert to provide this information.  CAAF ruled the expert evidence lacked relevance and failed the reliability standards as required by Daubert, but any error in admitting the testimony was harmless.

H. Opinion on ultimate issue:  The standard is whether the testimony assists the trier of fact, not whether it embraces an “ultimate issue” so as to usurp the panel’s function.  However, ultimate-issue opinion testimony is not automatically admissible.  Opinion must be relevant and helpful as determined under MRE 401-403 and 702. 

 

 

1. Human lie detector evidence impermissible:  An expert should not opine that a certain witness’s rendition of events is believable or not.  See, e.g., United States v. Petersen, 24 M.J. 283 (C.M.A. 1987) (“We are skeptical about whether any witness could be qualified to opine as to the credibility of another.”).  The expert may not become a “human lie detector.”  United States v. Palmer, 33 M.J. 7 (C.M.A. 1991).  Questions such as whether the expert believes the victim was raped, or whether the victim is telling the truth when she claimed to have been raped (i.e. was the witness truthful?) are impermissible.  However, the expert may opine that a victim’s testimony or history is consistent with what the expert’s examination found, and whether the behavior at issue is typical of victims of such crimes.  Questions such as whether the victim’s behavior is consistent with individuals who have been raped, or whether injuries are consistent with a child who has been battered, are therefore permissible. The relevant focus is on symptoms, not conclusions concerning veracity.  See United States v. Birdsall, 47 M.J. 404 (C.A.A.F. 1998) (expert’s focus should be on whether children exhibit behavior and symptoms consistent with abuse; reversible error to allow social worker and doctor to testify that the child-victims were telling the truth and were the victims of sexual abuse).

a) United States v. Hill-Dunning, 26 M.J. 260 (C.M.A. 1988), cert. denied, 488 U.S. 967 (1988):  Psychiatrist is competent to testify as to diagnosis of client and may testify that diagnosis is based upon assumption that what client said is the truth; yet, same witness may not testify that it is his opinion that what client said is truthful.

b) United States v. Schlamer, 47 M.J. 670 (N-M Ct. Crim. App. 1997), affirmed, 52 M.J. 80 (1999):  On redirect examination TC asked one of the accused’s interrogators if he believed the accused was making the confession up.  The court said the question was permissible because investigator was an eyewitness to the confession, the witness gave a conclusory answer that added nothing, and the accused had two doctors testify that the confession was unreliable, so the government should have the chance to rebut with an eyewitness.  And, if this was error, it was harmless.

c) United States v. Eggen, 51 M.J. 159 (C.A.A.F. 1999):  Accused convicted of forcible sodomy with another soldier.  Defense theory was that it was consensual.  The victim sought counseling after the incident and the government called the counselor in as an expert witness.  The defense asked the expert if the victim could be faking his emotions.  The expert said it was possible.  On re-direct, the expert testified that he saw no evidence of faking.  On appeal, defense claimed that this opinion was error because he was commenting on the witness’ credibility.  CAAF rejected this argument noting that the defense opened the door to this line of questioning and did not object at trial.

d) United States v. Marrie, 43 M.J. 35 (C.A.A.F. 1995):  Government expert testified preteen and teenage boys (the victims) were the least likely group to report abuse because of shame and embarrassment and fear of being labeled a homosexual.  She opined false allegations from that group were “extremely rare” and outside of her clinical experience.  Such testimony was improperly admitted, although harmless.

e) United States v. Robbins, 52 M.J. 455 (C.A.A.F. 2000).  Accused charged with two specifications of sodomy with a child under 16.  Social worker testified that in this case, the allegation was substantiated.  A second witness also testified about what the victim told her.  She testified that when the victim reported the incident to her, the victim appeared not to be lying.  The defense did not object to any of this evidence.  CAAF cited Birdsall and then distinguished this case primarily because it was a judge alone case and since the judge is presumed to know and apply the law correctly, these errors were not plain error and no relief.

f) United States v. Brooks, 64 M.J. 325 (C.A.A.F. 2007):  Where the government expert’s testimony suggested there was better than a 98% probability the victim was telling the truth, such testimony was the functional equivalent of vouching for the credibility or truthfulness of the victim, and implicates the very concerns underlying the prohibition against human lie detector testimony.

2. United States v. Lipscomb, 14 F.3d 1236 (7th Cir. 1994):  Conclusion of law enforcement experts held qualified to opine that circumstances and behavior indicated intent to distribute drugs was not a legal conclusion as to a specific intent element.

3. United States v. Diaz, 59 M.J. 79 (C.A.A.F. 2003):  CAAF held it was improper for an expert to testify that the death of appellant’s child was a homicide and that the appellant was the perpetrator, when the cause of death and identify of the perpetrator were the primary issues at trial.

4. Profile and propensity. 

a) United States v. Banks, 36 M.J. 150 (C.M.A. 1992):  “[G]enerally, use of any characteristic ‘profile’ as evidence of guilt or innocence in criminal trials is improper.”  Such evidence is improper because it treads too closely to character evidence offered to show that an accused acted in conformity with that character and committed the act in question, evidence prohibited under MRE 404(b).

b) United States v. Bresnahan, 62 M.J. 137 (C.A.A.F. 2005):  Profile evidence (evidence that presents a characteristic profile of an offender and then places the accused’s personal characteristics within that profile as proof of guilt) is generally improper in a court-martial as evidence of guilt or innocence.  Profile evidence is admissible only in narrow and limited circumstances; for example, in rebuttal when a party opens the door by presenting potentially misleading testimony. 

c) United States v. Harrow, 65 M.J. 190 (C.A.A.F. 2007):  In a murder case based on shaken baby syndrome, testimony by an expert witness in the fields of developmental and forensic psychiatry that the most common person to fatally abuse a child is a biological parent and that the most common trigger for baby shakings is persistent crying, was inadmissible profile evidence that focused on characteristics of the abuser, as opposed to characteristics of the child.  Testimony by an expert witness in the fields of developmental and forensic psychiatry about the symptoms and progression of shaken baby syndrome and medical conclusion that the victim’s primary diagnosis was probably most consistent with an inflicted injury, was not inadmissible profile evidence because that evidence focused on the characteristics of the child, not the abuser; and the evidence was not profile evidence simply because it tended to incriminate the accused.

5. Victim behavior and injuries:

a) United States v. Harrison, 31 M.J. 330, 332 (C.M.A. 1990):  An expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms. 

b) United States v. Cacy, 43 M.J. 214 (C.A.A.F. 1995):  While expert testimony that a child’s behavior is consistent with behavior patterns of a typical sexual abuse victim and that victim did not appear rehearsed were admissible, testimony that expert explained to child importance of being truthful and, based on child’s responses, recommended further treatment, was an affirmation that expert believed the victim, which improperly usurped the responsibility of the fact-finder.

c) United States v. Raya, 45 M.J. 251 (C.A.A.F. 1996):  Social worker’s testimony that rape victim was not vindictive and wanted to stay away from the accused was not improper comment on credibility.

d) United States v. Anderson, 50 M.J. 447 (C.A.A.F. 1999):  Accused charged with child sexual abuse.  On appeal for the first time, defense objected to testimony of government expert on child abuse accommodation syndrome.  Defense claimed that it amounted to labeling the accused as an abuser and vouching for the credibility of the victims because the expert got all her information from the victims.  CAAF rejected that argument and noted that the expert testimony was limited to factors and that the facts of this case were consistent with those factors.

e) United States v. Armstrong, 53 M.J. 76 (C.A.A.F. 2000):  Accused charged with indecent acts with his daughter.  Accused made a partial confession to the police and at trial stated that any contact with his daughters was not of a sexual nature.  On rebuttal, the government called an expert in child abuse who testified that in her opinion the victim suffered abuse at the hands of her father.  The defense did not object.  On appeal, CAAF found error and, while that error was not constitutional, it had a substantial influence on the findings. Reversed.

f) United States v. Mullins, 69 M.J. 113 (C.A.A.F. 2010):  An expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child has exhibited these symptoms.  Expert may not testify regarding the credibility or believability of a victim, or opine as to the guilt or innocence of an accused; it was error to admit expert testimony from which the court members could infer that there was a 1 in 200 chance that the allegations of child victims of sexual assault were false because such an inference assumes the members’ responsibility to determine the credibility of witnesses.

g) United States v. Foster, 64 M.J. 331 (C.A.A.F. 2007):  Expert may testify about symptoms that are generally found among children who have suffered sexual abuse and whether the child has exhibited the symptoms.  Expert may also testify about patterns of consistency generally found in the stories of victims as compared to patterns in the victim’s story.  But note that there is a fine line between admissible testimony in this area and testimony about a victim’s credibility or its functional equivalent, which is not admissible.

I. Polygraph Evidence.  In 1991, the President promulgated MRE 707 as a per se ban on all polygraph evidence in courts-martial, including the results of an examination, the opinion of an examiner, and any reference to an offer to take, the failure to take, or the taking of a polygraph examination.

MRE 707.  Polygraph Examinations.

(a) Prohibitions. Notwithstanding any other provision of law, the result of a polygraph examination, the polygraph examiner’s opinion, or any reference to an offer to take, failure to take, or taking of a polygraph examination is not admissible.

1. In 1996, CAAF held that the categorical ban on polygraph evidence is an impermissible infringement on the accused’s 6th Amendment right to present a defense provided the accused testifies and had his credibility placed at issue.  United States v. Scheffer, 44 M.J. 442 (C.A.A.F. 1996).  In United States v. Scheffer, 523 U.S. 303 (1998), the Supreme Court overruled CAAF.  In an 8 to 1 opinion the Court said that a per se exclusion on polygraph evidence does not unconstitutionally abridge the right of an accused to present a defense.

2. United States v. Light, 48 M.J. 187 (C.A.A.F. 1998):  Accused was convicted of larceny for stealing government equipment.  During the course of the investigation, he was given a polygraph by CID which he failed.  The polygraph failure was one issue that a Texas Justice of the Peace used to grant a search warrant of his civilian quarters.  Issue, can polygraph results be considered to decide probable cause questions?  The court noted, but did not resolve, the tension between MRE 104(a) and MRE 707 as to whether polygraph evidence can be considered in reviewing the issuance of the search warrant. 

3. United States v. Clark, 53 M.J. 280 (C.A.A.F. 2000):  Accused pleaded guilty to larceny and false official swearing.  In his judge alone case, the stipulation of fact included information that the accused failed a polygraph test.  The CAAF ruled that it was plain error for the military judge to admit this evidence, however, the error did not materially prejudice his rights.  Therefore, no relief.  

4. United States v. Southwick, 53 M.J. 412 (C.A.A.F. 2000):  Accused convicted of wrongful distribution of drugs to an informant.  At trial, defense attacked the credibility of the informant by trying to demonstrate the USAF had not done a proper certification of him.  In response, the informant testified that he had been polygraphed before being accepted as an informant.  The defense did not object to this evidence.  CAAF held it was harmless error for this evidence to come before the fact finders, because the polygraph was not directly related to any issues at trial or the informant’s in court testimony.

5. United States v. Tanksley, 54 M.J. 169 (C.A.A.F. 2000):  Buried on page seven of a nine-page statement to NIS agents, the accused stated he refused to take a polygraph.  The government offered the entire statement and the information about his refusal to take a polygraph was not redacted.  The defense did not object.  CAAF ruled that any passing reference to a polygraph examination did not materially prejudice the accused.

6. Unites States v. Morris, 47 M.J. 695 (N-M Ct. Crim. App. 1997):  Accused was convicted of false official statements and battery for sexually forcing himself on a female friend.  Accused was questioned and he initially claimed the contact was consensual.  Then, in a pre-polygraph interview he admitted the contact was not consensual.  The polygraph was never conducted.  The military judge prohibited the accused from introducing evidence that the investigators never actually gave him a polygraph.  Judge struck the right balance required by MRE 707 by admitting the statement and the circumstances surrounding the statement but not allowing any evidence about an offer to take or the taking of a polygraph to be admitted.

7. United States v. Wheeler, 66 M.J. 590 (N-M Ct. Crim. App. 2008):  Accused was charged with conspiracy to commit larceny and only confessed to his crimes after an agent told him he would be convicted based on his failed polygraph but that his command would not get the polygraph results if he confessed.  At trial, the defense moved to admit the polygraph examinations as evidence of the surrounding circumstances that led to his confession.  The military judge denied the defense motion.  On appeal, NMCCA ruled that the military judge erred in not allowing the polygraph evidence.  NMCCA distinguished this case from Scheffer, finding that the accused in this case was not trying to use an exculpatory polygraph to bolster his credibility but was attempting to shed light into the res gestae of his confession.

IV. Production of Experts for the defense

(d) Employment of expert witnesses and consultants

(1) In general. When the employment at Government expense of an expert witness or consultant is considered necessary by a party, the party shall, in advance of employment of the expert, and with notice to the opposing party, submit a request to the convening authority to authorize the employment and to fix the compensation for the expert. The request shall include a complete statement of reasons why employment of the expert is necessary and the estimated cost of employment.

(2) Review by military judge

(A) A request for an expert witness or consultant denied by the convening authority may be renewed after referral of the charges before the military judge who shall determine-

(i) in the case of an expert witness, whether the testimony of the expert is relevant and necessary, and, if so, whether the Government has provided or will provide an adequate substitute; or

(ii) in the case of an expert consultant, whether the assistance of the expert is necessary for an adequate defense.

A. General:  While the MREs establish the requirements for qualifying experts and determining the admissibility of expert testimony, the UCMJ and RCMs provide that the government and accused shall have equal opportunity to obtain witnesses and evidence.  Although an accused could secure an expert consultant or witness at his/her own expense, he/she will typically seek production of an expert at government expense from the convening authority.  RCM 703(d) specifically provides for employment of defense requested expert witnesses (i.e., experts who testify during the court-martial) and consultants/assistants (note that for purposes of this outline, “consultant” and “assistant” are used interchangeably).  An expert consultant is someone detailed to the defense team to assist the accused and defense counsel in handling issues that require expert assistance.  Expert consultants most commonly assist defense counsel in the evaluation of scientific or technical evidence that the government intends to offer at trial.  Expert consultants can also be helpful in the areas of mitigation, member selection, evaluation of physical evidence, or in providing a psychological evaluation of the accused.  The most important point to remember is that if the defense is successful in obtaining an expert consultant that does not mean the accused will automatically be entitled to have that consultant testify as an expert witness.  Ordinarily the two will merge but such merger is not automatic.

1. The standard for production of an expert witness for the defense is “whether the testimony of the expert is relevant and necessary, and, if so, whether the government has provided or will provide an adequate substitute.”  RCM 703(d)(2)(A)(i).

a) In requesting a defense expert witness, or seeking to compel production of a defense expert witness, defense must show the witness is relevant and necessary.  RCM 703(d)(2)(A)(i); United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998).

b) United States v. McHugh, 2018 CCA LEXIS 462 (Army Ct. Crim. App. 2018):  Military judge did not abuse discretion when denying the defense motion to compel production of an expert witness on intimate partner violence in a trial where the gravamen of the misconduct was rape.  The intimate partner violence testimony would not have been relevant in the case, and was not necessary as it would not have assisted the trier of fact to understand the evidence or determine a fact in issue.

2. The standard for production of an expert consultant is “whether the assistance of the expert is necessary for an adequate defense.”  RCM 703(d)(2)(A)(ii).

a) Although RCM 703(d) first contained a standard for production of expert consultants following changes in the RCMs implemented pursuant to the Military Justice Act of 2016, the limited right to expert assistance has long been guaranteed by the Due Process Clause, federal civilian case law, and military case law, provided certain circumstances exist.  United States v. Short, 50 M.J. 370 (C.A.A.F. 1999); United States v. Ndanyi, 45 M.J. 315 (C.A.A.F. 1996).  In both the revised RCM 703(d) (effective on or after 1 January 2019) and in the existing case law prior to 1 January 2019, the standard applied is that production of an expert consultant is required where “necessary for an adequate defense.”  RCM 703(d)(2)(A)(ii); United States v. Garries, 22 M.J. 288 (C.M.A. 1986).

(1) Ake v. Oklahoma, 470 U.S. 68 (1985):  In a capital case, the accused asked for a court-appointed psychiatrist to assist with the defense.  The trial court denied the request.  The Supreme Court held when an indigent accused makes a showing that expert assistance is needed on a substantial issue in the case both during case-in-chief and at sentencing, Due Process requires that the government provide that assistance.

(2) United States v. Garries, 22 M.J. 288 (C.M.A. 1986):  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 indigence.

3. Equal access.  United States v. Warner, 62 M.J. 114 (C.A.A.F. 2005):  CAAF held “Article 46 is a clear statement of congressional intent against government exploitation of its opportunity to obtain an expert vastly superior to the defense’s.”  Where the government provides itself with a top expert, it should provide a reasonably comparable expert to the defense.

a) United States v. Lee, 64 M.J. 213 (C.A.A.F. 2006):  Commenting on Warner and Article 46, CAAF held the playing field is even more uneven when the government benefits from scientific evidence and expert testimony, and the defense is denied a necessary expert to prepare for and respond to the government’s expert. 

b) Absent a showing that his case was unusual, when the government offered CID laboratory experts in a child sexual assault case, the military judge did not abuse his discretion when denying the defense request for expert assistance.   United States v. Ndanyi, 45 M.J. 315 (C.A.A.F. 1996).  However, the military judge cannot deny a defense request for an expert assistant by telling the defense to use the government’s own expert to prepare for trial.  United States v. Lee, 64 M.J. 213 (C.A.A.F. 2006).

c) United States v. McAllister, 64 M.J. 248 (C.A.A.F. 2007):  CAAF held an appellant’s right to present a defense was violated when the accused was prevented from employing and utilizing a necessary DNA expert at trial.  Had the military judge granted the defense request for a PCR expert, the members would have heard testimony about the discovery of DNA from three previously unidentified individuals.  The defense could have used this evidence to attack not only the thoroughness of the original test, but the weight that the members should have given to the government’s expert testimony.   Additionally, the CAAF believed the new evidence would have changed the evidentiary posture of the case.  At trial, the defense had nothing to contradict the character of the government’s DNA evidence which excluded all known suspects other than the appellant.  The additional evidence indicated that someone other than the appellant, or any other known suspect, was in physical contact with the victim at or near the time of her death.  The CAAF concluded that this evidence could have raised a reasonable doubt as to guilt.  As such, the court held that the appellant was deprived of his constitutional right to a fair hearing as required by the Due Process Clause.   The error in denying the defense request for expert assistance was not harmless beyond a reasonable doubt.  As such, the findings and sentence were set aside.

4. Communications with opposing experts:  If the defense successfully obtains an expert assistant, then the expert becomes a part of the defense team.  Therefore, communications between the expert assistant and the defense counsel/accused are privileged under MRE 502.  United States v. Turner, 28 M.J. 487 (C.M.A. 1989); United States v. King, 32 M.J. 709 (A.C.M.R. 1991), rev’d on other grounds, 35 M.J. 337 (C.M.A. 1992).  The government may not interview a defense expert assistant without the approval of the defense counsel.

a) Once the defense lists an expert as a witness, the government is free to contact and interview the expert.  United States v. Langston, 32 M.J. 894 (A.F.C.M.R 1991).

B. The Freeman/Gonzalez test for production of an expert consultant for the defense:  In order to determine whether the defense is entitled to production of expert assistance, the military judge will apply a combination of the Freeman and Gonzalez tests. 

1. United States v. Freeman, 65 M.J. 451 (C.A.A.F. 2008) 2-part showing—defense has the burden of showing that a reasonable probability exists that:

a) Expert would be of assistance to the defense (necessity); and

b) Denial of the expert assistance would result in a fundamentally unfair trial.

2. United States v. Gonzalez, 39 M.J. 459 (C.M.A. 1991) 3-part showing to establish reasonable probability of necessity (i.e., the first prong of the Freeman test)—defense must show: 

a) Why is the expert assistance required?

(1) The issue must be central to the defense theory of the case.  United States v. Lloyd, 69 M.J. 95 (C.A.A.F. 2010).

b) What would expert assistance accomplish for the accused?

c) Why is the defense unable to gather and present the evidence that the expert assistant would be able to develop?

(1) Defense counsel are expected to educate themselves to attain competence in defending the issues in a case.  United States v. Kelly, 39 M.J. 235 (C.M.A. 1994).

(a) The rapid growth in forensic science techniques at trial may make cases more complex than general practitioners can handle on their own.  United States v. McAllister, 55 M.J. 270 (C.A.A.F. 2001); United States v. Warner, 62 M.J. 114, (C.A.A.F. 2005).

(2) Where the defense counsel had already tried 15-20 urinalysis cases; had previously worked with an expert assistant on two urinalysis cases; had telephonic access to an expert consultant during trial; knew of the appropriate sources in the field; and did not raise irregularities in the handling of the urine specimen, military judge did not err in not requiring the physical presence of the expert assistant during trial.  United States v. Kelly, 39 M.J. 235 (C.M.A. 1994).

3. Even though a case may involve difficult issues, this does not mean the defense is automatically entitled to expert assistance. United States v. Robinson, 39 M.J. 88 (C.M.A. 1994).  The three-part Gonzalez test requires the defense to show the necessity of having the assistance of an expert.  Unless the defense can articulate such a need, the convening authority, and ultimately the military judge, will likely deny the defense request.

a) The defense must show more than just a mere possibility that the expert would be of assistance.  United States v. Lloyd, 69 M.J. 95 (C.A.A.F. 2010) (the defense’s desire to “explore all possibilities” did not reach the “reasonable probability” threshold). See also United States v. Bresnahan, 62 M.J. 137 (C.A.A.F. 2005) (holding that a successful showing of necessity "requires more than the mere possibility of assistance from a requested expert").

b) The defense must provide specific information regarding the Freeman/Gonzalez factors in support of a motion to compel expert assistance.  Assertions without support are insufficient.  “First, defense counsel provided virtually no evidence as to what efforts they made and why they were thus unable to understand, gather, develop, or present evidence in the areas of alcohol induced blackouts or false confessions. Rather, defense counsel attempted to meet their burden through unsupported assertions that they lacked the necessary education and experience to even attempt such a task. Second, defense counsel offered nothing in either their written or oral pleadings that explained why a denial of expert assistance in either area would result in a fundamentally unfair trial.”  United States v. Leyba, 2018 CCA LEXIS 394 (Army Ct. Crim. App. 2018).   

c) United States v. Reynolds, No. ARMY 2020473, 2022 CCA LEXIS 195 (A. Ct. Crim. App. Mar. 28, 2022): Military judge did not abuse discretion in denying Defense motion to compel production of expert consultant, a forensic psychiatrist, in order to help develop and present an entrapment defense as well as recidivism analysis. Defense failed to show that expert's analysis would potentially allow expert to form an opinion about whether accused was predisposed to engage in the alleged misconduct, in support of entrapment defense. As to recidivism, MJ found some potential value but ultimately limited relevance since government had indicated it would not present evidnece at sentencing as to accused's recidivism. Thus denial would not result in a fundamentally unfair trial. In short, defense motion, and supporting evidence such as expert testimony in Article 39a, must establish link to facts in case to show necessity, not just "mere possibility of assistance."

C. Process for production of expert witnesses and consultants for the defense

1. Initial request to the convening authority:  The defense must “submit a request to the convening authority to authorize the employment [of an expert] and to fix the compensation.”  This request “shall include a complete statement of reasons why employment of the expert is necessary and the estimated cost of employment.”  RCM 703(d)(1).  Typically, but not always, this request is for the employment of a civilian expert witness. 

a) Under RCM 703(d)(1), the defense must make their request for employment of an expert at government expense before employing the expert.  Nothing in the MCM permits the government to ratify previous employment of a defense expert.

2. If the convening authority denies the defense request, it may be renewed as a motion for appropriate relief to the military judge after referral of charges.  RCM 703(d)(2).

a) Courts may use the Houser factors when determining whether a requested expert witness’s testimony would be necessary and relevant.  United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998).

b) Where a request to the convening authority is denied, the military judge becomes the “gatekeeper” with regards to expert assistants and witnesses.  Under MRE 702 and 104(a), a military judge will determine if an expert is needed by the defense.  United States v. Ndanyi, 45 M.J. 315 (C.A.A.F. 1996).  

c) The defense may be entitled to an ex parte hearing to justify their request for a defense expert.  This is not an absolute right and is only for unusual situations.  United States v. Garries, 22 M.J. 288 (C.A.A.F. 1986); United States v. Kaspers, 47 M.J. 176 (C.A.A.F. 1997).

3. If the military judge grants a defense motion to compel an expert, “the proceedings shall be abated if the Government fails to comply with the ruling.”  RCM 703(d)(2)(B).  Although the military judge may grant the defense motion for employment of an expert, it is still up to the government to actually produce the expert and arrange for the expert’s compensation.

a) Except in unusual circumstances, the military judge does not have authority to appoint a specific expert.  United States v. Tharpe, 38 M.J. 8 (C.M.A. 1993).

4. Specific expert not required.

a) Named expert:  The defense is generally not entitled to a named expert of its choice.  If the government decides an expert is needed, or if the military judge grants a defense motion for an expert, the government may provide a reasonable substitute.  United States v. Ndanyi, 45 M.J. 315 (C.A.A.F. 1996); United States v. Burnette, 29 M.J. 473 (C.M.A 1990).      

b) Eminent expert:  The defense is not entitled to an eminent expert in a particular field.  The defense is only entitled to receive a qualified expert.  United States v. Gray, 37 M.J. 730 (A.C.M.R. 1993).

(1) The government cannot secure for itself the top expert in the field and then provide the defense with a generalist.  To do so violates the letter and spirit of Article 46. “Article 46 is a clear statement of congressional intent against government exploitation of its opportunity to obtain an expert vastly superior to the defense’s.”  United States v. Warner, 62 M.J. 114 (C.A.A.F. 2005). 

(2) However, giving the defense a generalist but then having the government call a specialist in rebuttal is not per se unfair.  The disparity must cause some prejudice to the accused.  United States v. Anderson, 68 M.J. 378 (C.A.A.F. 2010). 

c) Adequate substitute:  If the government substitute and the defense expert have differing views, the government substitute is not “adequate.”  The burden is on the defense to show the views of the experts diverge.  United States v. Robinson, 43 M.J. 501 (A.F.C.C.A. 1995).