Most service members facing serious charges have no idea that the government is required to fund expert witnesses for the defense team.
If an expert is necessary for you to mount an adequate defense, the government has to pay for one. Understanding how that works, and what happens when the government refuses to do the right and lawful thing, is one of the most important things you can learn about how serious courts-martial are defended.
What the Government Brings to the Fight
OSTC doesn’t go to trial without experts. In Article 120 cases they use forensic psychologists to address victim behavior, memory, and trauma response. In drug cases they use toxicologists. In CSAM cases they use digital forensics examiners, and in cases involving child victims, pediatricians and child psychologists. In assault and homicide cases they use pathologists. These experts testify at trial but their participation begins long before then. They advise the prosecution during the investigation, shape the theory of the case before charges are even preferred, and arrive at trial with credentials designed to make the panel feel like the science is settled and a verdict of Guilty is a formality.
A defense attorney who is not operating at that same level is not defending you. He’s a bystander watching his client get run over by a tank.
The Constitutional Foundation
The right to a defense expert in a military case runs through three sources. Ake v. Oklahoma, a 1985 Supreme Court decision, established that defendants have a constitutional right to expert assistance when it is necessary for an adequate defense. United States v. Garries, decided by the Court of Military Appeals in 1986, translated that principle into military practice and set the test that military judges still apply today. Article 46 of the UCMJ adds the fairness argument: the defense is entitled to equal opportunity to obtain witnesses, and an expert the government has secured for itself and the defense can’t match creates an imbalance the Constitution doesn’t permit.
The Garries test has three parts. The defense must show why the expert is needed, what the expert will do, and why defense counsel can’t perform those services without the expert’s help. The defense attorney needs to address and answer all three questions with specificity.
How the Request Works
A well-drafted expert request is a legal argument, and it has to be built from scratch for each case.
The first step is issue-spotting. That requires reading the file carefully, anticipating what the government’s theory and strategies will be and what science they will use, and knowing enough about the relevant field of expertise to recognize where the defense needs help. A lawyer who has never defended an alcohol-related Article 120 case might not know that the government’s forensic psychologist is going to testify about trauma bonding, confabulation, counterintuitive victim behavior, and memory consolidation. A lawyer who has been in the ring as often as we have knows exactly what is coming and knows which expert to call.
The second step is consultation. Before filing the request, experienced defense counsel will contact an expert in the relevant field for a preliminary consultation, often at no charge, to develop the argument of necessity. The expert helps counsel understand what the issues are, what testing or analysis would be required, what it will cost, and whether the request is supportable. That consultation also makes the request stronger, because counsel can represent to the convening authority or judge that a qualified expert (ideally one who is well known to everyone involved) has been briefed on the case and confirmed that additional expert assistance is necessary and will secure a fair defense in ways defense counsel can’t guarantee on their own.
The third step is intelligently making the request. The request has to satisfy all three Garries factors with specificity. It has to identify the expert, describe their qualifications, explain exactly what they will do in the case, set out the cost of pretrial work and, where appropriate, the cost of appearance at trial, and explain why defense counsel lack the specialized knowledge to perform those services without the expert’s assistance. On the cost question: counsel sometimes submits two requests, one for pretrial consultation and analysis, and a second for trial testimony once the pretrial work has confirmed that testimony is warranted. That approach protects the defense against a request that looks too expensive at the outset and gives the expert time to prove necessity before the bigger amount is made. The primary objective is to get the camel’s nose inside the tent.
When the Government Says No
The government will often deny the request by default, as policy. Some convening authorities will only spend money on defense experts if they’re forced to. The defense should expect this stunt and draft the request so that it’s designed not just to win approval the first time but to build the record for what comes next.
If the convening authority denies the request, defense counsel brings the issue to the military judge as a motion to compel. The motion has to demonstrate that the denial violates the accused’s rights under Ake, Garries, and Article 46, and that proceeding without the expert would deprive the accused of the ability to present an adequate defense. If the judge denies the motion, the denial becomes an appellate issue. CAAF has reversed convictions where defense experts were improperly denied. The denial of a properly supported expert request is not a harmless error when the expert would have addressed a central issue in the case.
The goal at this stage is to get the judge to (1) find that the expert’s assistance is essential to a fair trial, and to (2) order that if the government refuses to provide funding the trial will be terminated. The judge doesn’t have the authority to force the government to spend money, but the judge has power to abate the court-martial if the government won’t spend the money.
The Expert’s Role Once Appointed to the Defense Team
Most people assume an expert’s job is to take the stand and testify. That’s only one part a good expert does. In most instances, the defense’s expert never testified even if attending trial.
Once appointed, the expert reviews the file: the investigative reports, the government’s forensic analysis, the medical records, the service record, the mental health history, and anything else that touches on the issues they were appointed to address. They identify what testing is needed. They flag problems in the government’s methodology of forensic analysis. They tell counsel where the prosecution’s expert is vulnerable on cross-examination and what the literature says that the prosecution’s expert won’t volunteer.
In some cases, the expert will also advise on whether an RCM 706 mental health evaluation is appropriate. An RCM 706 board, known in the system as a sanity board, is a formal mental health review that examines the accused’s competency to stand trial and whether a mental disease or defect provides a defense. Most accused are found competent, and most don’t have a per se mental health defense. But the 706 review often produces something else: a detailed psychological and psychiatric history that can be a goldmine of mitigation at sentencing. That information is confidential. The prosecution doesn’t see it, and neither does the judge. Defense counsel review it and decide whether it helps. Sometimes the confidential report leads to a number of doors that are better left closed. Experienced counsel knows how to use the evaluation and when to leave it alone.
In most case types, the expert’s most valuable contribution is behind the scenes. They sit in the courtroom during the prosecution’s expert testimony, watching for misstatements, methodology problems, and overreach. They advise counsel in real time, passing notes and exchanging texts. They help prepare the cross-examination in the days before trial and refine it as the government’s direct examination unfolds. In a complex CSAM case with detailed digital forensics testimony, having an expert in the room who can catch a methodological error the government’s witness slides past the panel is worth more than anything that expert could say on direct.
The exception is alcohol-related Article 120 cases. There, the defense expert almost always testifies, because the issues are too important and too counterintuitive to leave to cross-examination alone. Memory encoding, blackout versus passout, confabulation, what a person in a blackout state actually looks like to an observer: panel members think they already understand these things, and they are usually wrong, especially in an age when they are trained to adopt a zero tolerance policy when it comes to mixing sex and booze. Testimony that corrects the panel’s assumptions and explains the science in plain language is often the difference between freedom and prison.
The prosecution’s forensic psychologist knows this and will fight the defense’s strategy at every stage. But the more sophisticated move for the defense is not a battle between competing experts. It is using the government’s own expert to undermine the government’s case.
A defense attorney who understands the science well enough to cross-examine the prosecution’s expert at the level of the literature can force concessions that are more powerful than anything the defense expert could say on direct examination. When the government’s own witness acknowledges that a person in a blackout state is indistinguishable from a sober person to an outside observer, and could have given the appearance of consent, that concession carries more weight with a panel than the defense expert saying the same thing. The government can’t accuse its own witness of bias. The defense expert’s job in those cases is to prepare counsel to extract what the government’s expert can’t credibly deny.
Wrong Expert, Wrong Case, Wrong Outcome
Experts aren’t interchangeable. A forensic psychologist who is outstanding in cases involving child sexual abuse might not be suited to testify in an alcohol-related Article 120 case. A digital forensics examiner who is excellent on cell phone extraction might not be the right person for a case involving cloud-based CSAM distribution. Matching the expert to the case type is a skill that takes years to develop and requires a broad enough network to have strategic options.
Over twenty-five years of court-martial work, we have built a sourcebook of experts across every discipline that comes up in military cases: forensic psychology, toxicology, digital forensics, pediatrics, pathology, neurology, and others. We know who is credible, who stands firm under cross-examination, who can explain complex science to a panel of non-scientists, and who is worth the funding battle. We know which experts will drop what they are doing to give us a preliminary consultation at no charge, and which ones can move their schedules when a case demands it. We build defense teams based on what each case needs, not on who is available or familiar.
That network is part of what you hire when you call us.
The Government’s Favorite Shortcut: “Your Lawyer Knows This Stuff and That’s Enough”
The government occasionally opposes a defense expert request by arguing that defense counsel is sufficiently experienced and knowledgeable to handle the issue without one. We have seen this argument made in person. A young Marine prosecutor made it, and a senior Marine judge adopted it, citing our own website to demonstrate that we possessed enough expertise in the relevant area to render an independent expert unnecessary.
The argument is wrong under the law for the reasons discussed above. But in that particular case, the legal error was not the whole story. Our client was an officer charged with a low nanogram cocaine case. A winnable case, so long as we were able to present competent testimony. Rather than proceed at a general court-martial where a dismissal would be available and automatic appellate review would attach, the command used a special court-martial, a forum almost never used for officers, specifically because the available punishment meant there was no automatic right to appeal. Deny the expert, keep the punishment below the appellate threshold, and the ruling never gets reviewed. The judge knew that. So did the trial counsel. The expert request was denied not because the legal standard supported denial but because the procedural posture made denial safe from scrutiny.
It is worth knowing that this happens. Our client was convicted, served thirty days, and faced a separation board afterward, where we managed to get him an Honorable discharge by demonstrating the bullshit the judge and trial counsel pulled at trial. When a judge has decided to bury a ruling below the appellate threshold and the forum has been chosen specifically to make that possible, there is no procedural remedy available in the moment. The right to an expert, like every other right in a courts-martial, depends on a system that is willing to enforce it. Sometimes it is not. The best protection against that outcome is getting into the case early enough to influence the forum choice before it is made, and having counsel with enough experience to see the landscape clearly before the command locks it in.
Experienced judges recognize the speciousness of this “counsel is good enough” argument immediately (notwithstanding our experience with the Marine judge). Judges know that counsel’s knowledge is not evidence. Counsel can’t take the stand. Counsel can’t submit a report. Counsel can’t be cross-examined on methodology or credentials. Whatever counsel knows about forensic psychology, toxicology, or digital forensics, none of it enters the record unless a qualified expert puts it there. The Garries framework exists because the government’s experts do enter the record, with credentials, opinions, and conclusions that the panel is asked to credit. Matching that requires a witness, not an attorney who has read the literature.
Frequently Asked Questions: Expert Witnesses in Military Courts-Martial
Does the government have to pay for my defense expert?
Yes, if the expert is necessary for an adequate defense. This is not a discretionary benefit. It is a constitutional requirement established in Ake v. Oklahoma and applied to military cases through United States v. Garries. The government can’t put its own experts on the stand, deny yours, and call that a fair trial. Article 46 of the UCMJ reinforces the point: the defense and prosecution are entitled to equal access to witnesses and evidence. If the government has a forensic psychologist advising its prosecution team and testifying at trial, and you need one to counter that testimony, the government has to fund it.
If the government gets an expert, it’s almost a certainty the defense will get one to match, but the defense should be pushing to get experts even when the government doesn’t; when the government has unlimited power to get experts for itself and doesn’t, that’s a sign the prosecution’s case is weaker than it appears on the charge sheet.
What is the standard for getting an expert approved?
The Garries test requires the defense to show three things: why the expert is needed, what the expert will do, and why defense counsel can’t perform those services without the expert’s help. The expert doesn’t have to be absolutely indispensable, but the defense has to show that without this assistance, presenting an adequate defense would be meaningfully compromised. A vague or generalized request will be denied. The request has to be specific about the issues, the methodology the expert will apply, and the gap between what counsel can do alone and what the expert provides.
What happens if (when) the government denies the request?
Denial by the convening authority is not the end. Defense counsel brings the issue to the military judge as a motion to compel. If the judge denies the motion, it becomes a preserved appellate issue. CAAF has reversed convictions where the denial of a defense expert request left the accused unable to mount an adequate defense against the government’s scientific evidence. A well-drafted request is designed not just to win approval the first time but to build the record that supports the appeal if it doesn’t.
Can the prosecution swap in a government-employed expert instead?
The government sometimes suggests that the accused can use a government-employed expert rather than an independent one. There is no per se prohibition on this, and we have used military experts over the years: Air Force physicians, Army nurses, DOD employees, and others. When you can find one who is qualified, genuinely unconflicted, and available at their commander’s discretion, it can be a useful arrangement. It removes one of the government’s automatic objections to funding an independent expert, since the argument that the defense already has access to adequate expertise is harder to make when the defense is the one proposing to use a government employee.
The problem is that those conditions are rarely all present simultaneously. Conflict is the threshold issue. A government-employed clinician whose career, promotion, and daily working relationships are embedded in the same institutional structure that is prosecuting your client is not automatically biased, but the potential for bias is real and has to be evaluated honestly. In United States v. Ruth, CAAF noted that limiting the accused to using one government expert to attack another is the functional equivalent of letting the fox guard the hen house. It makes the conflict analysis mandatory. An independent expert obtained by and reporting to defense counsel, with no institutional loyalty to the funding source, is the better arrangement when the government can be persuaded or forced to do it.
What does the expert actually do before trial?
Much more than prepare to testify. The expert reviews the investigative file, the government’s forensic analysis, the medical and mental health records, the service record, and anything else relevant to their area. They identify what additional testing or analysis is needed. They tell counsel where the prosecution’s expert is methodologically vulnerable and what the scientific literature says that the prosecution’s expert won’t volunteer on direct examination. They help develop cross-examination. They advise on case theory and strategy in ways that a lawyer without specialized scientific training simply can’t do alone. This pretrial work is often more valuable than anything the expert says on the stand.
Will my expert testify at trial?
Sometimes, but not always, and in most case types the expert’s most valuable work happens outside the courtroom. The exception is alcohol-related Article 120 cases. There, the defense expert almost always testifies because the issues around memory encoding, blackout, confabulation, and how an intoxicated person appears to an observer are too counterintuitive to leave to cross-examination alone. Panel members think they already understand how alcohol and memory work. They are usually wrong in ways that hurt the defense (see above: training says combining alcohol and sex creates strict liability for the accused) . Expert testimony that corrects those assumptions in simple language can be a decisive blow for the defense.
What is a Daubert hearing and when is it important?
A Daubert hearing, rare these days in military court, is a pretrial proceeding where the military judge evaluates whether proposed expert testimony is reliable enough to be admitted. The standard comes from the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, which the military adopted and applied in cases like United States v. Gipson years before the civilian federal courts caught up. The judge acts as a gatekeeper, evaluating whether the expert’s methodology is scientifically valid, whether it has been tested and subjected to peer review, whether there is a known error rate, and whether it fits the issues actually in dispute. For the defense, a Daubert hearing is both a threat and an opportunity. The prosecution will use it to try to keep your expert out. You can use it to challenge theirs.
Can the government’s expert be excluded?
Yes. The same standards that apply to defense experts apply to the government’s experts. In United States v. Campbell, CAAF reversed a drug conviction because the government’s expert failed to establish the error rate of the testing methodology and did not account for the possibility of unknowing ingestion or a false positive. In United States v. McElhaney, the court set aside a sentence because a government child psychiatrist testified about the accused’s future dangerousness without an adequate foundation for that opinion. The government’s experts are not automatically credible simply because the government called them. A defense attorney who understands the science and has an independent expert advising in real time can identify the weaknesses and exploit them.
Can an expert testify that my accuser is lying?
No, and the prosecution’s expert can’t testify that the accuser is being truthful. Military courts have consistently excluded expert testimony that amounts to a credibility opinion on another witness. In United States v. Petersen, the court reversed a conviction where a government expert said she greatly believed the victim’s testimony. In United States v. Partyka, a conviction was reversed because a government psychologist testified that the accused’s statement was not true. The rule cuts both ways. Defense experts can’t testify that the accuser fabricated the allegation. What they can do is testify about general scientific principles, such as the unreliability of certain memory processes or the characteristics of a particular psychological condition, that allow the panel to draw their own conclusions.
What about cases involving digital forensics and CSAM?
Digital forensics cases present some of the most technically demanding expert issues in courts-martial today. The government uses examiners trained in tools like Cellebrite and other forensic platforms to extract, analyze, and present data from phones, computers, cloud accounts, and messaging apps. In United States v. Shields, CAAF addressed a case where the government’s forensic examiner used software to sort data by file size rather than by date, which led to the discovery of material outside the original scope of the search authorization. The court found the methodology reasonable, but the case illustrates how specific and technical the methodological questions can get. A defense expert who understands these tools, their limitations, and the best practices in the field can challenge the government’s analysis at a level a lawyer alone can’t.
What is an RCM 706 board and when should I ask for one?
An RCM 706 board, called a sanity board in practice, is a formal mental health evaluation that examines whether the accused has a mental disease or defect that provides a defense, and whether the accused is competent to stand trial. Most accused are found competent and most don’t have a per se mental health defense. But a 706 review often produces something else: a detailed psychological and psychiatric history that can be extraordinarily valuable for mitigation at sentencing. That material is confidential. The prosecution doesn’t see it. Defense counsel reviews it and decides whether and how to use it. Sometimes it is a goldmine. Sometimes it opens a door better left closed. Experienced counsel knows which is which before deciding how to proceed.
What if the sanity board comes back inadequate?
You can challenge it and request a new one. A 706 board is only as useful as the quality of the evaluation behind it. If the examiners spent inadequate time with the accused, failed to review relevant records, or reached conclusions that conflict with other mental health evidence in the file, defense counsel can argue that the board was insufficient and seek a replacement. This is another area where having a forensic psychologist in your corner before the board convenes, and during the review of its findings, makes a material difference. An expert who can identify deficiencies in the government’s evaluation is in a much stronger position than counsel arguing the point alone.
Do different types of cases require different types of experts?
Different tools for different jobs. An expert in PTSD might not have much experience with child forensic interviewing. A toxicologist who is outstanding on urinalysis testing and interpretation of computer generated reports might not be the right person for a case involving a spiked drink. Matching the right expert to the specific issues in your case is a judgment call that requires a broad network and the experience to know the differences among experts within the same field. .
What does the expert do during trial if they are not testifying?
Some of the most valuable expert work at trial happens in the seats behind the defense table or in the war room. An expert sitting in the courtroom during the government’s expert testimony watches for missed steps, factual misstatements, and claims that go beyond what the science actually supports. They pass notes. They provideurgent observations during breaks. They help counsel adjust cross-examination on the fly when the government’s witness says something unexpected. In a long technical case, that real-time advisory function is worth as much as anything the expert could say on direct examination. They have seen as many of these cases as we have, and they notice things in the heat of trial that the attorneys, focused on the testimony, might miss.
How do I know if my lawyer has the expert network this requires?
Ask.
Ask which experts they have worked with in cases like yours, what fields they cover, whether they have contacts who will consult at no charge before being appointed, and whether those experts can be available on short notice. Ask whether they have ever had an expert request denied and had to litigate it as a motion. Ask whether they have ever used an expert in a sanity board review. The answers will tell you whether you are talking to someone who has actually done this work or someone who has read about it.
What if I can’t afford an expert on top of attorney’s fees?
If the expert is necessary for an adequate defense, the government funds it. That is the whole point of the Ake and Garries cases. The cost of a properly appointed and government-funded expert doesn’t come out of your pocket. What comes out of your pocket is the attorney who knows how to identify the issue, draft the request, fight for it when the government refuses, and use the expert effectively. That is part of what you are paying for when you hire counsel with genuine experience in courts-martial: their network of experts comes with them.
If You Are Facing a Court-Martial, the Government’s Experts Are Already Working Against You
OSTC builds its cases around expert testimony. The investigation, the charges, and the trial strategy are all shaped by scientists, psychologists, and other forensic specialists working for the prosecution before you’ve even gotten a charge sheet. The window to match that preparation closes as the case moves forward. Call us at 800-319-3134. We will tell you what experts your case requires, whether we can get them funded, and what the defense looks like if we do. The consultation is free and confidential.