THE USE OF EXPERT TESTIMONY AT TRIAL
Legal information on the use of expert testimony:
- Expert testimony is required at court-martial. Expert testimony is required to prove wrongful use of drugs; results of test alone (paper case) are inadequate. United States v. Green, 55 M.J. 76 (C.A.A.F. 2001); United States v. Campbell, 50 M.J. 154 (C.A.A.F. 1999), supplemented on reconsideration, 52 M.J. 386 (C.A.A.F.2000); United States v. Murphy, 23 M.J. 310 (C.M.A. 1987).
- Expert testimony must establish not only that the drug or metabolite was in the accused’s body but that the drug or metabolite is not naturally produced by the body or any other substance but the drug in question.
United States v. Harper, 22 M.J. 157 (C.M.A. 1986). In addition, for the permission inference of wrongfulness, the government may have to
satisfy the three prongs of United States v. Campbell, 50 M.J. 154
(C.A.A.F. 1999), supplemented on reconsideration, 52 M.J. 386
(C.A.A.F. 2000) (at least in cases where novel testing procedures or
methods were used). - Judicial notice is generally an inadequate substitute for expert testimony.
United States v. Hunt, 33 M.J. 345 (C.M.A. 1991). But cf. United States
v. Green, 55 M.J. 76, 81 (C.A.A.F. 2001); United States v. Phillips, 53
M.J. 758, 763 (A.F. Ct. Crim. App. 2000) (Chief Judge Young,
concurring, argues that military judges should be able to take judicial
notice of certain adjudicative facts in urinalysis cases). - Stipulations may be an adequate substitute for expert testimony.
- United States v. Ballew, 38 M.J. 560 (A.F.C.M.R. 1993). A
stipulation of expected testimony that expert would testify that
accused ingested cocaine was not a confessional stipulation. No
providence inquiry was required before the stipulation could be
received. - United States v. Hill, 39 M.J. 712 (N.M.C.M.R. 1993). Evidence
was insufficient to support conviction of use of marijuana where
stipulations of fact, documentary evidence, and testimony failed
to link positive urine sample to accused.- Expert evidence other than that used to meet the three-prong standard
needs to meet evidentiary requirements of reliability and relevance.
United States v. Campbell, 50 M.J. 154 (C.A.A.F. 1999), supplemented
on reconsideration, 52 M.J. 386 (C.A.A.F. 2000), citing Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993); Kumho
Tire C., Ltd. v. Carmichael, 526 U.S. 137, 153–55 (1999). Although the
three-prong standard announced in Campbell was watered-down in
United States v. Green, 55 M.J. 76 (C.A.A.F. 2001), it may still be
required in cases where novel testing methods or procedures were used.
- Expert evidence other than that used to meet the three-prong standard
- Experts at counsel table. United States v. Gordon, 27 M.J. 331 (C.M.A. 1989).
Government urinalysis expert may remain in courtroom to assist in explaining
testimony while another government expert testifies about lab testing procedures. - “Non-expert” expert. United States v. Smith, 34 M.J. 200 (C.M.A. 1992).
Allowing undercover agent to testify that he had never tested positive for drugs
although he was often exposed to them was permissible to rebut accused’s
defense of passive inhalation. - Use and Choice of Experts. United States v. Short, 50 M.J. 370 (C.A.A.F. 1999).
Defense counsel asked for an expert who was not employed by the DOD drug lab
to assess chain of custody and procedures and to assist with scientific evidence.
The defense also raised a passive inhalation defense. Military judge denied
defense request to provide assistance. Defense failed to show that the case was
not “the usual case.” Accused is not entitled to independent, non-government
expert unless there is a showing that the accused’s case is not “the usual case.”
Available government expert from lab was sufficient to provide expert testimony
on passive inhalation/innocent ingestion.
- Expert testimony must establish not only that the drug or metabolite was in the accused’s body but that the drug or metabolite is not naturally produced by the body or any other substance but the drug in question.