Bridge the Gap -- 01 March 2001 

SUBJECT:  Defense Expert and Investigative Assistance

1.  During my career, I have noticed that defense counsel often commit two "errors" in requesting expert witnesses or investigative assistance:  (1) requesting a ruling from the judge prior to requesting the same from the convening authority; and (2) not supporting the requests with sufficient facts to establish the legal necessity for the requested assistance.

2.  Rule for Court-Martial 703(d) sets forth the procedure for the employment of an expert witness.  It specifically indicates that the request goes to the convening authority for action and following a denial from the convening authority, the request can be renewed before the judge.  Although not directly addressed in the MCM, the request for investigative assistance is treated the same by case law.   The defense should first seek the investigative assistance from the convening authority, and raise it before the judge only after a denial by the convening authority.  This procedure can only help the defense as it gives the defense "two bites at the apple."  However, before seeking "outside" investigative or expert assistance, defense counsel must remember that "[i]n the usual case, the investigative, medical, and other expert services available in the military are sufficient to permit the defense to adequately prepare for trial."  (US v. Garries, 22 MJ 288 (CMA 1986).) 

3.  Case law gives three criteria that the defense must show for employment of an expert or the right to have investigative assistance:  (i)  why the assistance is needed; (ii) what would the assistance accomplish for the accused; and (iii) why the defense counsel is unable to gather and present the evidence that the requested assistance would be able to develop.  I have found that defense counsel usually address these questions summarily in their requests for the expert or investigative assistance instead of being specific in providing answers to the questions.  Defense counsel can strengthen their position by being more specific in their requests -- the request must be more than a "fishing expedition" to hopefully "hook" an expert or investigative assistance that "might" provide some benefit to the defense.  Yes, this means that counsel must do some research and investigation on its own before making the request! 

4.  Another point for defense counsel to consider:  If the detailed counsel truly feels that he or she needs more help in preparing for trial, then another avenue does exist for available help -- through TDS channels:  request that another counsel be detailed as an assistant defense counsel!
                                
 					                                      ... COL Gary J. Holland