U.S. v. Gunkle, 55 M.J. 26

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

1. an accused is entitled to expert assistance provided by the government if he can demonstrate necessity; to demonstrate necessity, an accused must demonstrate something more than a mere possibility of assistance from a requested expert – an accused must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that the denial of expert assistance would result in a fundamentally unfair trial
2. there is a three-part test for determining the necessity for expert assistance provided by the government: (1) why is the expert needed; (2) what would the expert accomplish for the defense; and (3) why is the defense counsel unable to gather and present the evidence that the expert assistance would be able to develop
3. any error in military judge’s denial of a defense request for pretrial expert assistance was rendered moot because appellant received the expert assistance he sought, albeit at his own expense

Trial Stages: Initial Review: Post-trial Recommendation

1. in a post-trial recommendation, the SJA must provide the convening authority with concise information as to the findings and sentence adjudged by the court-martial, but the SJA is required only to state the nature of the crimes without specifying exactly what acts the appellant was found guilty of or what language was excepted or substituted
2. although the post-trial recommendation failed to reflect that certain factual allegations had been the subject of granted motions for findings of not guilty, the post-trial recommendation nonetheless described the offenses with sufficient accuracy to assist the convening authority to decide what action to take on the sentence; the burden was upon the appellant to provide any additional information deemed favorable to the defense

Trial Stages: Appeals: Harmless / Prejudicial Error

1. Court of Criminal Appeals’ determination that an error was harmless is reviewed de novo; the test for nonconstitutional evidentiary error is whether the error had a substantial influence on the findings
2. prejudice from an erroneous evidentiary ruling is evaluated by applying a four-part test: (1) weighing the strength of the prosecution case; (2) weighing the strength of the defense case; (3) weighing the materiality of the evidence at issue; and (4) weighing the quality of the evidence at issue
3. error in permitting testimony of two forensic interviewers and an interview transcript of interview with child victim was harmless in light of: (1) unequivocal and specific testimony of two child victims; (2) the repetitive nature of the encounters which seriously undermined appellant’s claim that the encounters were inadvertent and unwanted; (3) the fact that although material, the evidence was cumulative of the in-court testimony of the victims; and (4) the fact that the case was tried by a military judge alone who had ample opportunity to assess the credibility of the victims

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

1. Court of Criminal Appeals’ determination that an error was harmless is reviewed de novo; the test for nonconstitutional evidentiary error is whether the error had a substantial influence on the findings
2. a military judge’s ruling on a request for expert assistance is reviewed for abuse of discretion