U.S. v. Lloyd, 69 M.J. 95

Military Justice Personnel: Military Judge: Discretion

1. appellant, who was charged with assault with a dangerous weapon in connection with his involvement in a bar fight in which three victims were stabbed, failed to show that the assistance of a blood spatter expert was necessary; although the defense argued that a blood spatter expert was necessary to explore all possibilities as to how the blood came to be on the shirt that appellant was wearing at the time of the altercation, the defense’s stated desire to explore all possibilities did not satisfy the requisite showing of necessity; in addition, although the defense argued that it needed to understand and potentially present expert testimony on the manner in which blood spatters from a wound and that expert assistance on the physics of bloodstain patterns would allow it to either rule out or present a theory about the presence of the alleged victim’s blood on appellant’s clothing, the defense did not specify what theory it sought to present; absent a more precise explanation of the theory it hoped to pursue through the assistance of a blood spatter expert, the military judge did not abuse her discretion when she denied the defense motion for the assistance of a blood spatter expert
2. a military judge does not abuse her discretion by failing to adopt a theory that was not presented in a motion at the trial level but is later presented on appeal; this is consistent with the general rule that a legal theory not presented at trial may not be raised for the first time on appeal absent exigent circumstances

Core Criminal Law Subjects: Witnesses: Experts

1. an accused is entitled to an expert’s assistance provided by the government before trial to aid in the preparation of his defense upon a demonstration of necessity
2. the accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; in order to satisfy the first prong of this test, the defense must show (1) why the expert is necessary, (2) what the expert would accomplish for the accused, and (3) why defense counsel is unable to gather and present the evidence that the expert would be able to develop
3. in a request for expert assistance before trial, the defense has the burden to show that there is more than the mere possibility of assistance from a requested expert; the defense must show a reasonable probability that the expert would assist the defense and that denial of the expert would result in an unfair trial
4. appellant, who was charged with assault with a dangerous weapon in connection with his involvement in a bar fight in which three victims were stabbed, failed to show that the assistance of a blood spatter expert was necessary; although the defense argued that a blood spatter expert was necessary to explore all possibilities as to how the blood came to be on the shirt that appellant was wearing at the time of the altercation, the defense’s stated desire to explore all possibilities did not satisfy the requisite showing of necessity; in addition, although the defense argued that it needed to understand and potentially present expert testimony on the manner in which blood spatters from a wound and that expert assistance on the physics of bloodstain patterns would allow it to either rule out or present a theory about the presence of the alleged victim’s blood on appellant’s clothing, the defense did not specify what theory it sought to present; absent a more precise explanation of the theory it hoped to pursue through the assistance of a blood spatter expert, the military judge did not abuse her discretion when she denied the defense motion for the assistance of a blood spatter expert

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Appointment of experts

1. the accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; in order to satisfy the first prong of this test, the defense must show (1) why the expert is necessary, (2) what the expert would accomplish for the accused, and (3) why defense counsel is unable to gather and present the evidence that the expert would be able to develop
2. in a request for expert assistance before trial, the defense has the burden to show that there is more than the mere possibility of assistance from a requested expert; the defense must show a reasonable probability that the expert would assist the defense and that denial of the expert would result in an unfair trial

Trial Stages: Appeals: Generally

1. there is a general rule that a legal theory not presented at trial may not be raised for the first time on appeal absent exigent circumstances

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

1. a military judge’s ruling on a request for expert assistance is reviewed for an abuse of discretion; an abuse of discretion occurs when the trial court’s findings of fact are clearly erroneous or if the court’s decision is influenced by an erroneous view of the law; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous
2. in reviewing for abuse of discretion a military judge’s ruling on a defense motion for expert assistance in the form of a blood spatter expert, an appellate court reviews the record material before the military judge at the time of the motion; although on appeal, more compelling theories may be made to demonstrate that a blood spatter expert was necessary, the military judge did not abuse her discretion by failing to adopt a theory that was not presented in the motion at the trial level; this is consistent with the general rule that a legal theory not presented at trial may not be raised for the first time on appeal absent exigent circumstances