Use of Expert Testimony

Legal information on the use of expert testimony:

  1. militarydefenselawyers345Expert testimony is required at court-martial. Expert testimony is required to prove wrongful use of drugs; results of test alone (paper case) are inadequate. United States v. Green, 55 M.J. 76 (C.A.A.F. 2001); United States v. Campbell, 50 M.J. 154 (C.A.A.F. 1999), supplemented on reconsideration, 52 M.J. 386 (C.A.A.F.2000); United States v. Murphy, 23 M.J. 310 (C.M.A. 1987).
    1. Expert testimony must establish not only that the drug or metabolite was in the accused’s body but that the drug or metabolite is not naturally produced by the body or any other substance but the drug in question.
      United States v. Harper, 22 M.J. 157 (C.M.A. 1986). In addition, for the permission inference of wrongfulness, the government may have to
      satisfy the three prongs of United States v. Campbell, 50 M.J. 154
      (C.A.A.F. 1999), supplemented on reconsideration, 52 M.J. 386
      (C.A.A.F. 2000) (at least in cases where novel testing procedures or
      methods were used).
    2. Judicial notice is generally an inadequate substitute for expert testimony.
      United States v. Hunt, 33 M.J. 345 (C.M.A. 1991). But cf. United States
      v. Green, 55 M.J. 76, 81 (C.A.A.F. 2001); United States v. Phillips, 53
      M.J. 758, 763 (A.F. Ct. Crim. App. 2000) (Chief Judge Young,
      concurring, argues that military judges should be able to take judicial
      notice of certain adjudicative facts in urinalysis cases).
    3. Stipulations may be an adequate substitute for expert testimony.
    1. United States v. Ballew, 38 M.J. 560 (A.F.C.M.R. 1993). A
      stipulation of expected testimony that expert would testify that
      accused ingested cocaine was not a confessional stipulation. No
      providence inquiry was required before the stipulation could be
      received.
    2. United States v. Hill, 39 M.J. 712 (N.M.C.M.R. 1993). Evidence
      was insufficient to support conviction of use of marijuana where
      stipulations of fact, documentary evidence, and testimony failed
      to link positive urine sample to accused.

      1. Expert evidence other than that used to meet the three-prong standard
        needs to meet evidentiary requirements of reliability and relevance.
        United States v. Campbell, 50 M.J. 154 (C.A.A.F. 1999), supplemented
        on reconsideration, 52 M.J. 386 (C.A.A.F. 2000), citing Daubert v.
        Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993); Kumho
        Tire C., Ltd. v. Carmichael, 526 U.S. 137, 153–55 (1999). Although the
        three-prong standard announced in Campbell was watered-down in
        United States v. Green, 55 M.J. 76 (C.A.A.F. 2001), it may still be
        required in cases where novel testing methods or procedures were used.
    3. Experts at counsel table. United States v. Gordon, 27 M.J. 331 (C.M.A. 1989).
      Government urinalysis expert may remain in courtroom to assist in explaining
      testimony while another government expert testifies about lab testing procedures.
    4. “Non-expert” expert. United States v. Smith, 34 M.J. 200 (C.M.A. 1992).
      Allowing undercover agent to testify that he had never tested positive for drugs
      although he was often exposed to them was permissible to rebut accused’s
      defense of passive inhalation.
    5. Use and Choice of Experts. United States v. Short, 50 M.J. 370 (C.A.A.F. 1999).
      Defense counsel asked for an expert who was not employed by the DOD drug lab
      to assess chain of custody and procedures and to assist with scientific evidence.
      The defense also raised a passive inhalation defense. Military judge denied
      defense request to provide assistance. Defense failed to show that the case was
      not “the usual case.” Accused is not entitled to independent, non-government
      expert unless there is a showing that the accused’s case is not “the usual case.”
      Available government expert from lab was sufficient to provide expert testimony
      on passive inhalation/innocent ingestion.

Experts at counsel table.

“Non-expert” expert.