Under M.R.E. 702, an expert witness is someone who possesses particular knowledge, skill, experience, training or education and can offer scientific, technical, or other specialized knowledge testimony that will assist the trier of fact to understand the evidence or to determine a fact in issue. An expert witness is allowed to testify in the form of an opinion.
As with an expert assistant, an accused has the right to obtain an expert witness and produce her for trial at his own expense. If an accused intends to do so, all the notice and disclosure requirements outlined in R.C.M. 701(b) concerning witnesses must be observed.
If the defense or the government is seeking to have an expert witness produced and to have the convening authority cover the expense of the witnesses, counsel must: (a) Submit a request to the convening authority to authorize employment and fix compensation before employment; (i) Nothing in the Manual for Courts-Martial permits the government to ratify previous employment of a defense expert. (b) Provide notice to the other party.
The request must include a complete statement of reasons why the expert is necessary , and an estimate of costs. (a) This list of reasons should include a synopsis of testimony as required by R.C.M. 703(c)(2). United States v. Ndanyi , 45 M.J. 315 (C.A.A.F. 1996).
If the convening authority denies the request, the defense can raise the issue with the military judge. (a) The military judge will determine whether the testimony of the expert is relevant and necessary . United States v. Ndanyi , 45 M.J. 315, 319 (C.A.A.F. 1996). (b) If so, whether the government has provided an adequate substitute .
The defense may be entitled to an ex parte hearing to justify their request for a defense expert. This is not an absolute right and is only for unusual situations. United States v. Garries , 22 MJ 288, 291 (C.M.A. 1986); United States v. Kaspers , 47 MJ 176 (C.A.A.F. 1997).
If the military judge finds that a defense expert is needed, she may order the government to provide the expert. If the government fails to comply, the military judge may abate the proceedings. R.C.M. 703(d).
The production and employment of expert witnesses is governed by R.C.M. 703(d). Relevant and necessary. Courts may use the Houser factors, United States v. Houser , 36 M.J. 392 (C.M.A. 1993), when determining whether the expert’s testimony would be necessary and relevant. United States v. Rivers , 49 M.J. 434 (C.A.A.F. 1998).
The defense is not entitled to its named expert. If the government decides an expert is needed, or if the military judge orders the government to produce and expert, the government may provide a reasonable substitute. United States v. Burnette , 29 M.J. 473 (C.M.A 1990).
Except in unusual circumstances, the military judge does not have authority to appoint a specific expert. United States v. Thorpe , 38 M.J. 8 (C.M.A. 1993).
If the defense requests an expert and the government provides an expert that has a divergent view from the one held by the defense requested expert, then the substitute might not be adequate. United States v. Robinson , 43 M.J. 501 (A.F.C.C.A. 1995).
The defense is not entitled to an eminent expert in a particular field. The defense is only entitled to receive a qualified expert. United States v. Gray , 37 M.J. 730 (A.C.M.R. 1993).