Yoluntaw and lnvoluntary Expert Testimony In Courts-Martial

• Author: By Major Alan K. Hahn
• Pages: 02

I. INTRODUCTION: THE EXPANSION OF EXPERT TESTIMONY

Expert testimony occupies an important place in military criminal law. Expert testimony has been allowed In such traditional areas asblood grouping,' time af death,* and voice identification3 and also in more unusual area? such as security classification of information4 and blackmarket value of stolen goods.' While expert testimony has been disallowed in such areas as the use of body language to determine truthfulness,' or truthfulness of homosexuals,8 developments in the social and physical sciences have led to a re. lentless expansion of subjects appropriate for expert testimony. In recent yean, bite-mark identification evidences has been allowed, while expert testimony concerning battered child syndrome,1° rape

trauma syndrome." and the unreliahiliry of eyewitness Identification eiidence" has )er to he permitted

In addition to general developments in the social and physical sciences. recent specific developments in urinalysis and in rape cases will funher expand the use of experts in military courts. In 1981, the Department of Defense generally eased regulatory restrictions on the use of urinalysis testsi9 This move was largely precipitated by the decinon of the Court of Military Appeals in i'nrted States 1 A m - strong,14 which apparently remm ed the self-incnmmation obstacles of the Fifth Amendment of the U S and Article 31 of the Uniform Code of M~hiary

JusticeL6 and paved the way for the ad-missmn into evidence of unnalys~results. Other remaining obstacles to the admission of urinalysis test results were dislodged by the court m Mun-ay L. Ha10knan.l~

Issues remaining after .Wurray, such as passive inhalarlon,l8 existence of physiological or psychological effects from the presence of drug metabolites in the urine,lgand sufflciency of the tests to prove guilt beyond a reasonable doubtzo are scientific and their resolution will require expert testimony.

the court aiiowed two psychologists and a psychiatrist to testify that the rape victim could unknowingly place herself in a sexually compromising situation. that she would be

In Cnited States L.

"Lnired Stare, % Hammand 17 I1 J 318 219 n 1 IC kf A 19641 (allowed iñnncl-

19831 (psschologcal fe~limony on memor) and perception not generall, accepted m

"Depuli Secretark of Defense Zfemorandum, Alcohol and Drug Abuw Dec 26

'9 Y J 373 (C \I 4 ,98011981 (popularly knorn ab the Carlucri memorandum )

'$I 5 Canst amend V

"Uniform Code of Mllfai) Justice art 31, 10 S C 9 331 (197b) [hereinafter cited as K C \I J j

'IS \f J 74 (C >I A 19331 Ihe court found campuliory ur8nal~rls to be a rearon ahle Fourth Amendment ~elzurenot pmhhted under the Fifth Amendment 01 Arti-

~ l e

fectr must he actual 01 potential

lyld Bf 33 (Fletcher. .I , concurring in the result1 "'15 >I J 354 (C >I A 1883170

31 self incrimination orlvlleiies. not mohlblted bi the MIIIIPI( Rules of E\idence

likely to consent to intercourse upon a demonstration of force by a male, and that she was unlikely to falsely claim rape.22 With the dooropened by Moore to expert testimony on a rape victim's personality traits and with testimony on rape trauma syndrome on the merits waiting in the wings,23 expert testimony may well see increased use in this area.

If the test of Frye u. United States,94 which requires that scientific evidence be generally accepted in its relevant scientific community, continues to apply in military law, it may slow down the expanded use of experts. Even If the Frye test survives, however, counsel still must litigate its apphcation to a given theory or technique. Further,

objections based upon F q e are wairable25 and Frye may be mapplicable under the relaxed rules of evidence at sentencing 2 1

Despite the frequent use of experts in military tnais, the refinement of miiitary law on experts has been spotty Dereloped to some extent are such areas as qualifications of experts,27 subpcts of ex-pert testimony,z8 standards for admlssibiiity,28 aelghr of expert instructions an expen testimong ,11 use of hypotheticais. and the basis of an expert's opinlon.j2 Far less developed 15

an area of increasing importance-how to procure the voluntary and involuntary testimony of experts

The purpose of this article 1s to renew existmg military law on securing the toluntarg and m\-oluntary semces of service member. government employee. and nb-iiian experts. The Manual for Courts-Martial33 and case law provide insufficient guidance on procuring the range of expen testimony and investigative senxes that are

necessary for modern cnminal trials and to insure a fair trial far the accused. This article wiii propose a Manual provision following federal law and standards to meet these needs

11. SECURING VOLUNTARY EXPERT TESTIMONY

1. SERVICE MEMBER- AND GOVERNMENT EMPLOYEE-EXPERTS

   Securing the voluntary testimony of the service member-expert normally presents few problems. Whether drawn into the cme in the normal course of duty (forensic chemists) or specifically drawn in by the court-martial process (psychiatrists in sanity b~ards),~' attendance of the military expert can be secured by notice to the member or his or her commanderg6 and by compliance with applicable service reg~lations.~'

   If matenality and necessity3' are shown in a timely manner,sn the military expert should be produced regardless of the situs of the court-martial or the duty station of the expert.38

   As with service member-experts, government employee-experts normally present few problems. Because most scientific analysis is

   done in military faciiitle~,'~government employees are frequent

   witnesses. The current Manual for Courts-Martial specifically addresses government employees." and compliance with the normal requirements of matenality, necesslty, timeliness, and wlth regulations will secure attendan~e.'~

   Expert fees are not requ~red.'~

   Two are= of potential controversy exist ~n military law: frst, what showing is required to obtiun the presence of a service member or government employee expert; and, second, what is the remedy if the appropriate commander or other authority should refuse to make the expert available?"

   Because Rule for Courts-Martial 703(d) and Its predecessor. paragraph 116 of the 1969 Manual only govern the contractual employment of civilian experts,'$ the provisions of R.C.M. 703(b)(l) and paragraph 115 must govern the procurement of expert service member and government testim~ny.~~

   The standard of materiality far production of witnesses is currently m flux. Paragraph 115 re^

   quired that matenai and necessary witnesses be produced. In merpreting paragraph 116, the Court of Military Appeals ma> have created a stnct definition of matenality. In United States c. Bennett," the court stated that the true test of materiality IS "es-

   . .

   or goiernment emplape could nonefheleJI be compelled to feifir) See W r a noier 154-76 and accampanving text

   'Tee infro notes 64 72 and accompanjing text"See Cnifed Stares Y Vieror 10 M J 608 (C 11 A 1080) "12 I

   J 463 (C \I A 19821

   sentiality" "If a witness E essenrial for the prosecution's case, he will be present or the case will fail. The defense has a similar

   This language was a significant departure from existing law that apparently required a witness to be produced merely if the witness would help the defense or hurt the government.'* While a trial level standard as to how much a witness must hurt the government or help the defense was never clearly articulated, the appellate standard was whether there was a reasonable likelihood that the evi-dence would have affected the judgment of the trier of fact.50 The "essentiality" standard not only appears more rigorous than the rea-sonable likelihood standard, but arguably 1s also to be applied at the trial level to determine whether the process (travel order or subpoena) should issue.sL It may be, however, that Bennett's "easentmlity" was only meant as a test for prejudice to be applied to a nit^ ness for whom process should have issued, but who was unavailable, for example, because of nonamenabilit) to process.sz

   In any event. despite the confusion engendered by Bennett,5s the new Manual in R.C.M. 703(b)(l) omits the word "material" and states that the standard for aitness production is "relevant and necessary." The non-binding Discussion to the rule explams that to be necessary, the testimony should merely contribute "in some positive wa)" on a matter in mue. Whether this becomes the standard LSultimately a matter for judicial determination.

   The courts have developed a separate materiality standard far ex-pert witnesses who produce laboratory or other admissible reports j4

   eS5' presence I S ewe"

   In Lhited States t Vietor.55 the Court of Military Appeals heid that the admission of a laboratory report does not give the accused an automatic right to production of the person who performed the test. While the three judges differed in their views of what ihowmg of matenality must be made,s6 the decision 1s being interpreted as requiring only "some plausible shawmg" of materiality before the per-son who performed the test must be produced ST

   If the required showing for production 1s met. substiIutes or alternatives to live testimony are deemed inadequate.jB and the appropriate aufhority does not allow the sewice member or government employee expert to testify, the mihtary judge should abate the proceedings until the expert is produced or an adequate substitute expert is provided This IS not only the remedy deveioped in case law under paragraph 115 for material wmmSes.sg but also is explicitly stated in the new Manual as the remedl for failure to produce an unavailable witnesseo or to employ a civiiian expert.61

2. CIVILIAN EXPERTS

   Voluntary or non-compelled civilian expert sewices may be obtained either through a general contract by the government with a firma2 or, more commonly, by an individual contract with an expert an a case-by-case basis. Individual contracts in the new Manual are...