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).
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Categories:
- Court of Criminal Appeals
- Court Martial Defense