U.S. v. Short, 50 M.J. 370

Military Justice Personnel: Defense Function: Experts, Investigators -- Appointment to Defense Team

1. under RCM 703(d), an accused is authorized expert assistance at Government expense when the Government cannot provide an adequate substitute and the defense makes a showing of necessity; the defense must show: (1) why expert assistance is needed, (2) what expert assistance would accomplish for the accused, and (3) why the defense counsel is unable to gather and present the evidence that the expert assistant would be able to develop
2. defense counsel’s showing of necessity for appointment of expert assistant in urinalysis case was inadequate where: (1) counsel did not show this was not “the usual case”; (2) counsel was inexperienced in urinalysis cases and could get assistance from more experienced counsel; (3) defense counsel declined to talk to an expert who was made available even though that expert was scheduled to testify at trial; and (4) defense counsel did not renew request for assistance after having a week to seek guidance form more experienced counsel and talk to proffered expert

Core Criminal Law Subjects: Witnesses: Ake Appointments

1. under RCM 703(d), an accused is authorized expert assistance at Government expense when the Government cannot provide an adequate substitute and the defense makes a showing of necessity; the defense must show: (1) why expert assistance is needed, (2) what expert assistance would accomplish for the accused, and (3) why the defense counsel is unable to gather and present the evidence that the expert assistant would be able to develop
2. defense counsel’s showing of necessity for appointment of expert assistant in urinalysis case was inadequate where: (1) counsel did not show this was not “the usual case”; (2) counsel was inexperienced in urinalysis cases and could get assistance from more experienced counsel; (3) defense counsel declined to talk to an expert who was made available even though that expert was scheduled to testify at trial; and (4) defense counsel did not renew request for assistance after having a week to seek guidance form more experienced counsel and talk to proffered expert
3. an accused has the right to investigative assistance at the expense of the government where he can meet a three-step test for determining necessity: (1) why the expert or investigator is needed; (2) what the investigative or expert assistance would accomplish for the accused; and, (3) why the defense counsel is unable to gather and present the evidence that the expert or investigative assistant would be able to develop
4. military judge did not abuse his discretion in denying further expert assistance where: (1) defense request went beyond request for necessary investigative assistance; (2) the defense request essentially argued that prior assistance was not helpful to the defense; and, (3) the request failed to provide concrete explanation of need for further assistance

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. military judge’s decision on a request for expert assistance is reviewed for abuse of discretion