U.S. v. McAllister, 55 M.J. 270

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

1. in support of a request for expert assistance, an accused must demonstrate the necessity for such assistance
2. an accused is not entitled to a specific expert of his own choosing, but is entitled only to competent assistance
3. a military judge's decision on a request for expert assistance is reviewed for abuse of discretion
4. with the rapid growth of forensic science techniques, it has become increasingly apparent that complex cases require more than general practitioners as experts
5. military judge abused her discretion in denying defense request to substitute one expert witness for a purportedly more qualified expert where: (1) prosecution's own expert testified that in the short time between the DNA testing of the evidence in this case and appellant's trial, tests for two additional genetic systems were implemented at her laboratory; (2) there were no DNA testing laboratories in Hawaii, the trial situs; (3) the expert initially hired by the defense lacked expertise in forensic testing and informed the defense that appellant needed an expert in forensic PCR testing; (4) the substitution of experts to the defense team would not have incurred any increased cost to the government; (5) the government did not assert that any resultant 6 to 8 week delay would prejudice the government's case, and there was no indication that the prosecution would have been prejudiced; (6) DNA evidence was the linchpin of the prosecution case, but may have been incomplete in that evidence was not subjected to two additional genetic systems tests that were developed after the government's evidence was first developed; (7) it was clear from the record that the defense needed expert assistance in the technical aspects of PCR testing, and not just generalized expertise in genetic medical diagnosis; (8) the military judge did not fully appreciate the complexities or importance of the DNA evidence and the rapidly advancing technology in DNA testing; (9) the defense request was timely; (10) there was no evidence of bad faith or witness shopping; and (11) the military judge focused on taking the defense counsel to task for requesting an initial expert who was either unable or unwilling to provide what the defense actually needed, rather than focusing on whether the initial expert was able or willing to provide the needed expert assistance

Trial Stages: Appeals: Courts of Criminal Appeals › Factual sufficiency

1. Courts of Criminal Appeals are charged with the duty of determining not only the legal sufficiency of the evidence but also its factual sufficiency; they must be convinced of an appellant's guilt beyond a reasonable doubt
2. if Court of Appeals for the Armed Forces is in doubt whether the Court of Criminal Appeals properly determined the factual sufficiency of the evidence, the remedy is to remand the case for a proper factual review of the findings of guilty; Court of Appeals for the Armed Forces will not overturn findings of fact by a Court of Criminal Appeals unless they are clearly erroneous or unsupported by the record

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

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