ACCA has an excellent unpublished opinion in United States v. McGinnis, No. ARMY 20071204 (A. Ct. Crim. App. Aug. 19, 2010). Here it is with liberal sprinklings of Dwight’s synopsis.
Appellant was convicted of battering his 8-month-old son. His GT score was 90 and he had a reputation for being a dim bulb, submissive, and compliant. His platoon sergeant testified that he wanted to please others and avoid angering people. Army CID agents interrogated SPC McGinnis for 5 1/2 hours. For three hours, he denied wrongdoing. He eventually made some inculpatory statements. After the interrogation ended, SPC McGinnis told his platoon sergeant that he told CID he hadn’t hurt his kids, but they wouldn’t take no for an answer.
SPC McGinnis’s defense counsel asked the CA to retain a specific false confession expert (Ofshe) for the defense. After the CA denied the request, the defense filed a motion to compel, which the military judge also denied. Wrong decides ACCA.
ACCA emphasized the distinction between an expert consultant and an expert witness and noted that requests for the two are resolved using different tests.
This is an important distinction often missed by both sides. Here, partly due to the defense motion, the military just conflated the test for expert assistance in preparing for trial and an expert witness who would testify. A request for expert assistance is not evaluated on any expert testimony that might be sought. The defense could quite well justify expert assistance in preparation but not be able to justify expert witness testimony.
This court applies a three-part test to determine whether expert assistance is necessary. United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994), cert. denied, 513 U.S. 965 (1994). The defense must show: (1) why expert assistance is needed; (2) what the expert assistance would accomplish for the accused; and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop. Id. A military judge’s ruling on a request for expert assistance will not be overturned absent an abuse of discretion. Gunkle, 55 M.J. at 32.
The Air Force Court of Criminal Appeals has urged practitioners “to distinguish between a request for an expert witness and a request for an expert consultant. An expert consultant is provided to the defense as a matter of [military and constitutional] due process, in order to prepare properly for trial and otherwise assist with the defense of a case.” United States v. Langston, 32 M.J. 894, 896 (A.F.C.M.R. 1991).
Slip op. at 6 – 7.
ACCA concluded that SPC McGinnis’s post-interrogation statement to his platoon sergeant constituted some evidence that his confession was false. ACCA thus found that one of the military judge’s findings–that there was no evidence that he made a false admission–was clearly erroneous. ACCA noted that the presence of such evidence distinguished this case from United States v. Bresnahan, 62 M.J. 137 (C.A.A.F. 2005)(Leo).
ACCA also held that the military judge jumped the gun in determining that the expert wasn’t necessary because the testimony he might give wouldn’t be admissible. ACCA sets out a number of other cases in which false confession experts have testified and noted that neither ACCA nor CAAF has held that such evidence is per se inadmissible. A determination of admissibility, ACCA emphasized, should be made under Daubert on a case-by-case basis.
As the military judge conceded, “false confessions” do occur. Expert testimony could assist the members in understanding why they occur without running afoul of any longstanding prohibition against “human lie detector” testimony, that is, without stating that the confession at issue is false.
Relying on Article 46 (and Chief Judge Effron’s dissent in Lloyd), ACCA reasoned:
Here, appellant “made a specific request for expert assistance necessary for his defense on a central issue in a closely contested case. The military judge erred in denying the defense the equal opportunity to obtain evidence and witnesses guaranteed by Article 46 of the Uniform Code of Military Justice.” Lloyd, 69 M.J. at 101 (Effron, J., dissenting).
ACCA found the error prejudicially harmful and set aside the findings and sentence.