Right to expert witnesses in a court-martial

Expert witnesses can be a critical part of any court-martial. Service members have a right to confidential experts. See United States v. Turner, 28 M.J. 487, 489 (C.M.A. 1989); United States v. King, 32 M.J. 709 (A.C.M.R. 1991). Under R.C.M. 701 (f), their confidential assistance is subject to the attorney-client privilege and the work product privilege.

As a matter of military due process, service members are entitled to investigative or other expert assistance and testimony when necessary for an adequate defense, without regard to indigency. United State v. Garries, 22 M.J. 288 (C.M.A. 1986); United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986); United States v. Toledo, 15 M.J. 255 (C.M.A. 1983).

In United States. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994), the Court of Military Appeals established a three-prong test that the defense must meet in order to show the necessity for expert assistance. Firstly, why the expert assistance is needed. Secondly, what the expert assistance may accomplish for the accused. Thirdly, why the defense counsel is unable to gather and present the evidence that the expert assistance would be able to develop. Id.

The defense must submit a request for expert assistance to the convening authority before trial. If it is denied, the defense may have asked the military judge to order the government to provide assistance. US v. Lee, 64 M.J. 213 (C.A.A.F. 2007).