Forensic Experts

It has now been many years since the expanded complexity of court-martial cases. Now a military defense counsel needs to know a lot more about psychology, general forensic sciences, DNA, computer forensics, in addition to fingerprints and handwriting. In the civilian courts if you need an expert to help in your defense you pay for them. That is, unless you are indigent and therefore can't pay. Expert assistance is a constitutional due process right. In a Supreme Court case called Ake v. Oklahoma, 470 U.S. 68 (1986), the court said that the state has to pay for needed expert assistance for the indigent accused.

In the military it is different--there is a right to government funded assistance and testimony of an expert exists regardless of an accused's ability to pay. United States v. Garries, 22 M.J. 288 (C.M.A. 1986). Whenever the prosecution has forensic evidence or an expert on their side, your military defense lawyer must seek an expert with similar or equal qualifications. The law currently favors your military defense lawyer getting expert assistance when the government has experts, especially experts who will testify. 

Of course the government and the prosecution isn't going to make it easy for you, so getting the expert is not automatic. The military defense counsel has to show the necessity and relevance of the requested expert, and how that expert will help beyond the capacity of the lawyer's own knowledge and advocacy skills. As your military defense lawyer, with my years of experience using experts, I will be able to argue the Gonzalez test to the court. I will show the court the following:

1. Why we need the expert.
2. What the expert will do to help the defense, and
3. Why neither I nor any other skilled defense counsel is able to gather and present the evidence that the expert can and will.

This is what is required by United States v. Gonzalez, 39 M.J. 459 (C.A.A.F. 1994). Some other considerations include explaining how confronting the prosecution case will be more effective, how the expert's assistance will help challenge the prosecution's evidence, and how the expert can help prove the defense theory of innocence.

You do need a seasoned military defense lawyer to help you get expert assistance, use the assistance given, and present that information. I have used experts in hundreds of cases as a military defense counsel.

In 2014, about 60% of Army cases involved sexual offenses. In such a case the most common experts needed are a forensic psychologist, a toxicologist, and a computer examiner. Alcohol is a significant fact in most military sexual assault cases. Alcohol affects memory, it lessens a complaining witnesses inhibitions. As any normal person knows, people do things under the influence of alcohol they'd not normally do, like cheat on their husband, and if they are in a blackout they might not remember all the consensual activity they engaged in. Text messages, phone calls, cell phone photos, and emails are common as evidence, as are forensic computer examinations for child contraband images. Psychosexual examinations are used nationwide in civilian courts to address a convicted sex offenders potential for rehabilitation and risk of doing it again.

Many sexual assault cases being tried now have at least evidence from smart phones--pictures, texts, movies. The military defense counsel needs to be fully aware of the various phones, programs or applications, and digital forensic examinations. That said, we often need forensic examination tools to help. Smartphones are mini-computers with extraordinary amounts of personal information, increasing exponentially on the device. Invading a smartphone is more harmful, quantitatively and qualitatively, to privacy than invading a house or even early cell phones.

Computer forensic experts, for example, help us in many ways: what needs investigating, evaluating the military investigators techniques and reports, giving suggestions for discovery requests to get information, helping prepare for cross-examination of the government expert; and sometimes giving testimony to refute or explain the prosecution testimony. Just with desktop computers or laptops, not everything gets deleted from the computer when you press delete. You think it's gone but it hasn't. The software just assigns a new file name and the file can be recovered later with forensic software such as that produced by Cellebrite.

Please get in touch to talk at either 703-298-9562 or better yet, mailto:mljucmj@court-martial.com about your case and discuss how experts may help up as your military defense counsel best represent you.