Using an Expert Assistant in the Military
Overview of using an expert assistant in the military:
Demonstrating to a military court that the defense is entitled to a Government-funded forensics expert consultant can be difficult. According to United States v. Short, 50 M.J. 370 (1999), the Government must provide and pay for expert assistance to an accused, only if the defense demonstrates necessity. However, merely noting that the Government has employed expert assistance to help it prosecute its case or that the case is complex, for example, is not enough to show that the defense should be entitled to employ Government-funded expert assistance. United States v. Robinson, 39 M.J. 88, 89 (C.M.A. 1989).
Three-Part Gonzalez Test.
The defense must pass a three-part test to show that expert assistance is necessary. United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1991). The defense must show:
- Why expert assistance is needed,
- What expert assistance would accomplish for the accused, and
- Why the defense is unable to gather and present the evidence that the expert assistant would be able to provide.
Application of Gonzalez Test.
- Defense counsel should include the following details when requesting forensic expert assistance.
The name, occupation and title of the proposed forensic consultant, citing Military Rule of Evidence (M.R.E.) 502 and U.S. v. Toledo, 25 M.J. 270 (C.M.A. 1987)
State the specific articles of the UCMJ that the accused is charged with violating.
Specify the appropriate statute or case law that establishes the accused’s right to an expert assistant when necessary. U.S. v. Garries, 22 M.J. 288 (C.M.A. 1986); U.S. v. Robinson, 39 M.J. 88 (C.M.A. 1994), and Ake v. Oklahoma, 470 U.S. 226 (1971).
Following the three-part test of Gonzales, state the specific circumstances of creating the defense that requires expert assistance. For example, if in the preparation of its case the Government is developing a complex showing of DNA evidence, defense counsel may need an forensics DNA expert to assist in understanding the Government’s evidence and to assist in preparing an appropriate rebuttal to the Government’s conclusions.
Why is Expert Assistance Needed?
Indicate the aspects of the case with which the forensic expert will provide the defense assistance. For example, a forensic psychiatrist could help determine the accused’s competency to stand trial.
What would the Expert Assistance accomplish for the accused?
Indicate how the expert would help with those aspects of the case. For example, a psychiatrist could assist the defense in interpreting and evaluating the accused’s mental health records.
Why is the defense unable to gather this evidence on their own?
Mention the lack of experience of the defense counsel and its staff in the complex areas in which the forensic consultant has experience.
Request that the Court grant the request for expert assistance in accordance with the requirements of the regulation and case law, including
- Appointing the consultant as an expert,
- Designating the consultant as a part of the defense team,
- Ordering that matters related to work with the defense team remain confidential, and
- Ordering that the Government pay the consultant’s fees and expenses