U.S. v. Lee, 64 M.J. 213

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

1. prior to trial, the defense must submit a request for employment of an expert to the convening authority supported, in part, by a statement of reasons why the employment of the expert is necessary; if the request is denied by the convening authority, that request may be renewed at trial before the military judge

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. courts-martial must not only be just, they must be perceived as just; the requirement of Article 46, UCMJ, for equal access to witnesses and evidence secures that just result and enhances the perception of fairness in military justice; where the government has found it necessary to grant itself an expert and present expert forensic analysis often involving novel or complex scientific disciplines, fundamental fairness compels the military judge to be vigilant to ensure that an accused is not disadvantaged by a lack of resources and denied necessary expert assistance in the preparation or presentation of his defense

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge abused his discretion in refusing a defense request for expert assistance in a child pornography case where a government witness offered expert testimony that the images taken from the accused’s computer were real and not computer-generated based on a novel digital media analysis; the issue whether the images were real or virtual was the critical issue, and the defense counsel did not have the qualifications or expertise to challenge the image analysis presented by the government’s expert witness; on the facts of this case, the defense made an adequate showing of necessity where the requested expert assistance would provide the basis upon which defense counsel could cross-examine the government expert and possibly challenge the actual or real nature of the graphic images

Core Criminal Law Subjects: Witnesses: Experts

1. in trials by courts-martial, the accused is afforded equal access to witnesses and evidence, including a right to the assistance of necessary experts without regard to his ability to pay for those expert services
2. prior to trial, the defense must submit a request for employment of an expert to the convening authority supported, in part, by a statement of reasons why the employment of the expert is necessary; if the request is denied by the convening authority, that request may be renewed at trial before the military judge
3. an accused’s entitlement to expert assistance is not limited to actual expert testimony at trial; the entitlement to that expertise is available before trial to aid in the preparation of his defense upon a demonstration of necessity
4. to demonstrate necessity for expert assistance, the accused must show that a reasonable probability exists both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial
5. in this case, the military judge abused his discretion in refusing a defense request for expert assistance in a child pornography case where a government witness offered expert testimony that the images taken from the accused’s computer were real and not computer-generated based on a novel digital media analysis; the issue whether the images were real or virtual was the critical issue, and the defense counsel did not have the qualifications or expertise to challenge the image analysis presented by the government’s expert witness; on the facts of this case, the defense made an adequate showing of necessity where the requested expert assistance would provide the basis upon which defense counsel could cross-examine the government expert and possibly challenge the actual or real nature of the graphic images
6. aside from a common-sense conclusion that a government expert would be unlikely to cast a critical eye upon his own expertise, his analytical methods, or his professional conclusions, making a selected government expert available for interview prior to trial does not properly respond to a defense showing of necessity for expert assistance
7. Article 46, UCMJ, is a clear statement of congressional intent against government exploitation of its opportunity to obtain an expert vastly superior to the defense’s; as this case demonstrates, the playing field at trial is rendered even more uneven when the government benefits from scientific evidence and expert testimony while the defense is wholly denied a necessary expert to prepare for and respond to the government’s expert; here, denying the accused the expert assistance of a defense consultant was an abuse of discretion
8. courts-martial must not only be just, they must be perceived as just; the requirement of Article 46, UCMJ, for equal access to witnesses and evidence secures that just result and enhances the perception of fairness in military justice; where the government has found it necessary to grant itself an expert and present expert forensic analysis often involving novel or complex scientific disciplines, fundamental fairness compels the military judge to be vigilant to ensure that an accused is not disadvantaged by a lack of resources and denied necessary expert assistance in the preparation or presentation of his defense

Core Criminal Law Subjects: Witnesses: Production of

1. at a court-martial, the parties and the court shall have equal opportunity to obtain witnesses and other evidence
2. prior to trial, the defense must submit a request for employment of an expert to the convening authority supported, in part, by a statement of reasons why the employment of the expert is necessary; if the request is denied by the convening authority, that request may be renewed at trial before the military judge

Trial Stages: Appeals: Harmless / Prejudicial Error

1. before a military appellate court may reverse a case for an abuse of discretion, it must determine that the error materially prejudiced appellant’s substantial rights
2. in this case, the government met a critical element of its burden of proof by showing that the graphic computer images were real through scientific analysis and expert testimony; appellant, on the other hand, was denied his request for expert assistance, the asset necessary for him to challenge that government evidence and prepare a defense; denying appellant the resources necessary to prepare and present a defense was prejudicial error

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

1. an appellate court reviews a military judge’s ruling on a request for expert assistance for abuse of discretion
2. to test the adequacy of a showing of necessity for expert assistance, an appellate court applies a three-part test: the defense must show: (1) why the expert assistance is needed; (2) what the expert assistance would accomplish for the accused; and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop