U.S. v. Warner, 62 M.J. 114

Core Criminal Law Subjects: Witnesses: Production of

1. under Article 46, UCMJ, the defense’s opportunity to obtain witnesses is to be equal to the government’s

Trial Stages: Appeals: Harmless / Prejudicial Error

1. prejudice is presumed in this shaken baby case where: (1) the government denied the defense’s request for an expert and instead provided the defense with a substitute expert of its choice; (2) the government had obtained an expert in the same subject matter area for itself; (3) the defense challenged the relative qualifications of the substitute expert; (4) the military judge denied a defense motion seeking an order requiring the originally-requested expert to be detailed to the case; and (5) the substitute expert provided by the government was not adequate because her professional qualifications concerning shaken baby syndrome were not reasonably comparable to those of the government’s expert
2. a military judge’s erroneous denial of a defense motion for a more qualified expert consultant was prejudicial in a court-martial of an accused for an assault on his infant son where it left the defense without the adequate tools necessary to analyze and possibly challenge or rebut the opinion of the government’s expert that the injuries suffered by the accused’s son were due to the severe shaking of the child

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

1. there is no litmus test standard for determining whether a substitute for a defense-requested expert is adequate; rather, this is a fact-intensive determination that is committed to the military judge’s sound discretion
2. in construing Article 46, UCMJ (10 USC 846), an appellate court cannot simply defer to the rules contained within the MCM; as a congressional statute, Article 46 prevails over any limiting interpretation of an MCM provision; to the extent that Article 46 provides rights beyond those contained within the MCM rule on the production of witnesses and evidence (RCM 703), it is an appellate court’s judicial duty to enforce the statutorily-established rights

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. in construing Article 46, UCMJ (10 USC 846), an appellate court cannot simply defer to the rules contained within the MCM; as a congressional statute, Article 46 prevails over any limiting interpretation of an MCM provision; to the extent that Article 46 provides rights beyond those contained within the MCM rule on the production of witnesses and evidence (RCM 703), it is an appellate court’s judicial duty to enforce the statutorily-established rights