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 has ask 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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    For the better part of the last decade, Mr. Conway has become a nationally recognized resource on military justice. Daniel Conway is a former Marine staff sergeant and captain. He is a proud graduate of the University of Texas at San Antonio and University of New Hampshire School of Law. Mr. Conway is recently a former President of the New Hampshire Bar Association Military Law Section and a current member of the DC Bar. Mr. Conway has also written a book on Military Crimes and Defenses that is near publication with a major ...

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