United States v. Freeman , 65 M.J. 451 ( 2008 )

UNITED STATES, Appellee
v.
John S. FREEMAN, Senior Airman
U.S. Air Force, Appellant
No. 06-0833
Crim. App. No. 35822
United States Court of Appeals for the Armed Forces
Argued November 5, 2007
Decided February 1, 2008
STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Vicki A. Belleau (argued); Lieutenant
Colonel Mark R. Strickland and Captain John S. Fredland (on
brief).
For Appellee: Captain Brendon K. Tukey (argued); Colonel Gerald
R. Bruce and Major Matthew S. Ward (on brief); Lieutenant
Colonel Robert V. Combs.
Military Judges: Patrick M. Rosenow and Kurt D. Schuman
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Freeman, No. 06-0833/AF
Judge STUCKY delivered the opinion of the Court.
We granted review to determine whether the military judge
committed prejudicial error by failing to suppress Appellant’s
confession, by denying the defense request for the appointment
of a forensically-qualified expert consultant at government
expense, and by admitting evidence of uncharged misconduct and
bad character in violation of Military Rule of Evidence (M.R.E.)
404(b). We conclude the military judge did not commit
prejudicial error and affirm the decision of the United States
Air Force Court of Criminal Appeals.
I. Facts
Appellant met KS at a New Year’s Eve party on December 31,
2001, and she moved in with Appellant the next day. One month
later, KS moved out.
On February 6, 2002, KS spent the evening with friends, one
female and three male, at her apartment. During the evening, KS
smoked marijuana and consumed fourteen to fifteen shots of
alcohol. She got sick at about 11:15 p.m., but rejoined the
group for five minutes before leaving the room to lie down. The
last thing KS remembered before passing out was looking at the
clock just after midnight.
The only other woman at the apartment, Ms. Dawn Montoya,
asked the men to leave, and locked two doors to the apartment;
after awakening KS, Ms. Montoya observed KS appear to lock the
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front door. Once in her car, Ms. Montoya waited five to ten
minutes, until the men drove away, before she left.
KS woke up in the shower with blood on her head, pain in
her left hand, and the tip of her finger almost severed. She
recalled that light from a flashlight was blinding her and a man
was telling her that she had twenty-four minutes to shower and
then she was “going to die.” At the time, she thought the
person speaking to her was Private First Class (PFC) Bob Garmon,
one of the friends she had been drinking with earlier that
night. KS fled to her neighbor’s house and was taken to the
hospital.
A physical examination at the hospital revealed KS had
suffered a two-inch cut on her forehead, two black eyes, a
broken nose, cuts on her head needing sutures, an amputated
fingertip, bruises on her back and chest, abrasions on her
forearms, other head injuries requiring staples, and significant
blood loss.
The next day, KS told the police and Ms. Montoya that three
Hispanic men had broken into her house and raped her. She
identified PFC Garmon as a possible suspect. KS never
identified Appellant as being at her home on the night of the
attack.
A general court-martial with members convicted Appellant of
making a false official statement and assault with a means or
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force likely to cause death or grievous bodily injury. Articles
107 and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 907, 928 (2000). The convening authority approved
Appellant’s sentence to a dishonorable discharge, confinement
for five years, forfeiture of all pay and allowances, and
reduction to the lowest enlisted grade. The United States Air
Force Court of Criminal Appeals affirmed the findings and
sentence. United States v. Freeman, ACM No. 35822, 2006 CCA
LEXIS 160, 2006 WL 1976504 (A.F. Ct. Crim. App. Jun. 13, 2006)
(unpublished).
II. Admission of Evidence
Appellant asserts that the military judge erred by
admitting both uncharged misconduct and his involuntary
confession into evidence. We review a military judge’s decision
to deny a motion to suppress evidence -- like other decisions to
admit or exclude evidence -- for an abuse of discretion. United
States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). “Abuse of
discretion” is a term of art applied to appellate review of the
discretionary judgments of a trial court. An abuse of
discretion occurs when the trial court’s findings of fact are
clearly erroneous or if the court’s decision is influenced by an
erroneous view of the law. See United States v. Rader, 65 M.J.
30, 32 (C.A.A.F. 2007). “Further, the abuse of discretion
standard of review recognizes that a judge has a range of
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choices and will not be reversed so long as the decision remains
within that range.” United States v. Gore, 60 M.J. 178, 187
(C.A.A.F. 2004) (citing United States v. Wallace, 964 F.2d 1214,
1217 n.3 (D.C. Cir. 1992)).
A. The Confession
(1) Law
A confession is involuntary, and thus inadmissible, if it
was obtained “in violation of the self-incrimination privilege
or due process clause of the Fifth Amendment to the Constitution
of the United States, Article 31, or through the use of
coercion, unlawful influence, or unlawful inducement.” M.R.E.
304(a), (c)(3); see Article 31(d), UCMJ, 10 U.S.C. § 831(d)
(2000). The prosecution bears the burden of establishing by a
preponderance of the evidence that the confession was voluntary.
United States v. Bubonics, 45 M.J. 93 (C.A.A.F. 1996) (citing
M.R.E. 304(e); United States v. D.F., 63 F.3d 671, 679 (7th Cir.
1995)). The voluntariness of a confession is a question of law
that we review de novo. Arizona v. Fulminante, 499 U.S. 279,
287 (1991); United States v. Bresnahan, 62 M.J. 137, 141
(C.A.A.F. 2005).
We examine “the totality of the surrounding circumstances”
to determine “whether the confession is the product of an
essentially free and unconstrained choice by its maker.”
Bubonics, 45 M.J. at 95.
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In determining whether a defendant’s will was over-
borne in a particular case, the Court has assessed the
totality of all the surrounding circumstances -- both
the characteristics of the accused and the details of
the interrogation. Some of the factors taken into
account have included the youth of the accused, e.g.,
Haley v. Ohio, 332 U.S. 596; his lack of education,
e.g., Payne v. Arkansas, 356 U.S. 560; or his low
intelligence, e.g., Fikes v. Alabama, 352 U.S. 191;
the lack of any advice to the accused of his
constitutional rights, e.g., Davis v. North Carolina,
384 U.S. 737; the length of detention, e.g., Chambers
v. Florida, supra; the repeated and prolonged nature
of the questioning, e.g., Ashcraft v. Tennessee, 322
U.S. 143; and the use of physical punishment such as
the deprivation of food or sleep, e.g., Reck v. Pate,
367 U.S. 433. In all these cases, the Court
determined the factual circumstances surrounding the
confession, assessed the psychological impact on the
accused, and evaluated the legal significance of how
the accused reacted. Culombe v. Connecticut, supra,
at 603.
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (concerning
voluntariness of consent to search) (footnote omitted); United
States v. Ellis, 57 M.J. 375, 379 (C.A.A.F. 2002) (plurality
opinion).
If we find the confession involuntary, we must set aside
the conviction unless we determine the error in admitting the
confession was harmless beyond a reasonable doubt. Fulminante,
499 U.S. at 285.
(2) Discussion
Appellant neither contests the military judge’s findings,
nor asserts that he was not advised of his Article 31,
UCMJ/M.R.E. 305 rights or that he did not knowingly and
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intelligently waive those rights. Instead, Appellant avers that
his confession was obtained by the interrogators’ “use of
coercion, unlawful influence, or unlawful inducement,” Article
31(d), UCMJ; M.R.E. 304(c)(3), and that the military judge
incorrectly applied the law to the facts of this case. He
claims his will was overborne by the following:
(1) The length of the interview;
(2) The interrogators’ intimidation of Appellant by
invading his personal space;
(3) The interrogators’ use of the following lies, threats,
and promises:
(a) That they would tell Appellant’s commander
whether or not he cooperated;
(b) That witness and fingerprint evidence
contradicted his denials;
(c) That the sooner they completed the interrogation,
the sooner everyone could go home and Appellant could
get on with his life;
(d) That they would turn Appellant over to civilian
authorities if he did not cooperate;
(e) That civilian punishment would be harsher,
especially since the victim was a civilian; and
(f) That he would be sent to jail for a long time if
he did not cooperate.
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To determine the voluntariness of Appellant’s confession,
we apply the two-part test from Schneckloth.
(a) The characteristics of the accused favor a finding of
voluntariness.
The military judge found that Appellant was a twenty-three-
year-old E-4 when he was first questioned by Special Agent (SA)
James Bogle of the Air Force Office of Special Investigations
(AFOSI) on March 8, 2002. Appellant was advised of his rights
to counsel and to remain silent, and waived those rights.
Appellant personally prepared a seven-page typed statement in
which he revealed the nature of his relationship with KS, but
denied any wrongdoing or knowledge of the attack. Appellant
also agreed to a polygraph examination. Between the first
interview and the March 21, 2002, polygraph examination,
Appellant had thirteen days to seek counsel or decline further
interviews. He did not do so. There was no evidence that he
was not of average intelligence, had not completed high school,
could not read and write, or was in any way mentally impaired.
Appellant claimed he had six hours of sleep before reporting for
the polygraph and denied any fatigue, hunger, thirst, or other
problems. He never complained about the process, never asked
for an attorney, never asked to stop the interview or leave, or
in any other way indicated that he felt coerced or pressured
into making a statement.
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(b) The details of the interrogation, while less definitive,
also favor a finding of voluntariness.
At 9:06 a.m. on March 21, 2002, when Appellant presented
himself at the AFOSI office for the polygraph examination, SA
Steven Larson advised Appellant of his rights. Appellant
acknowledged those rights, waived them, and agreed to answer
questions. SA Larson explained a form consenting to a polygraph
which contained an additional rights advisement. Appellant
waived his rights in writing and consented to the examination.
During the pre-polygraph interview, which took
approximately one hour, SA Larson advised Appellant of the
procedures for administering the polygraph and requested
personal, medical, and psychological information from Appellant.
Appellant was then given a twenty-minute break.
After the first test, which took thirty minutes (from 10:26
a.m. to 10:58 a.m.), SA Larson gave Appellant a one-hour break
so SA Larson could analyze the charts. Appellant, permitted to
leave the interview room, went outside and smoked. When SA
Larson returned, he informed Appellant that the results were
“indiscernible” and he would have to retest. Appellant agreed
to a second exam which was conducted between 11:52 a.m. and
12:16 p.m. After the second polygraph exam, Appellant was given
another break, until 12:45 p.m., while SA Larson reviewed the
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charts. SA Larson concluded that Appellant was deceptive with
regard to his denial of any knowledge of KS’s injuries.
When the interview resumed at 12:45 p.m., SA Larson
rearranged the furniture in the room so that Appellant was
directly in front of him. He told Appellant that the polygraph
exam results indicated he had been deceptive. Here, the
interview turned into more of an interrogation, but SA Larson
did not shout or curse at Appellant. After an hour, there was a
seven-minute break, during which time Appellant was given water.
After the break, SA Bogle took over the questioning. SA Bogle
began by asking if Appellant understood he was still under
rights advisement; Appellant responded affirmatively. At 3:03
p.m., they took another break. SA Larson left and SA Scott Mann
joined SA Bogle. The interview continued from 3:40 p.m. until
5:30 p.m. and then from 5:50 p.m. until 6:10 p.m. At that time,
SA Bogle left Appellant alone with a computer so he could type
out his statement. During the interrogation, SA Bogle raised
his voice slightly above a conversational level only once.
After he completed the statement, SA Bogle asked Appellant if he
wanted to include the oral statements he had already made about
the injuries shown in the photographs. Appellant included it in
his statement, which was completed at 7:30 p.m.
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During the interview, Appellant was offered food, water,
and other beverages. He accepted the offer of water but
declined any food or other beverages.
The military judge also found the following:
Over the course of the interview, SA Bogle
suggested to the accused that everyone makes mistakes
and the best thing to do is admit it and get it behind
you. He promised the accused that if he cooperated,
they could tell his commander about it and it might
help. On the other hand, he told the accused, if you
don’t tell the truth, the case will go downtown and
with a civilian victim you could get five years in
jail. When the accused denied being out that night,
SA Bogle lied to him and told him a witness saw him
out. He also told the accused that his fingerprints
were found at the scene.
There has been considerable controversy over the treatment
of threats and promises in assessing the voluntariness of a
confession. Before Fulminante was decided in 1991, a confession
“‘obtained by any direct or implied promises, however slight,’”
was not voluntary. Bram v. United States, 168 U.S. 532, 542-43
(1897) (quoting 3 H. Smith & A. Keep, Russell on Crimes and
Misdemeanors 478 (6th ed. 1896)). Thus, in Lynumn v. Illinois,
372 U.S. 528, 534 (1963), the Supreme Court held that a
confession was coerced when the defendant was told she could
lose her welfare payments and the custody of her children, but
if she cooperated the police would help her and recommend
leniency. The Court reiterated that a coerced confession
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required reversal of the conviction even when there was
sufficient other evidence to convict. Id. at 537.
Since Fulminante, however, promises are considered only a
factor in the equation; they are not of themselves determinative
of involuntariness. See, e.g., United States v. Gaskin, 190 F.
App’x 204, 206 (3d Cir. 2006); United States v. Jacobs, 431 F.3d
99, 109 (3d Cir. 2005). Similarly, lies, threats, or
inducements are not determinative either. See, e.g., United
States v. Mendoza, 85 F.3d 1347, 1350-51 (8th Cir. 1996)
(holding that an investigator’s threat of immediate arrest if he
did not cooperate did not overbear the accused’s will);
Ledbetter v. Edwards, 35 F.3d 1062, 1069-70 (6th Cir. 1994)
(holding that an investigator’s use of a series of psychological
ploys, including lying about evidence, staging a phony
identification, and showing charts and graphs allegedly linking
the accused to the crime did not result in an involuntary
confession); Welch v. Butler, 835 F.2d 92, 95 (5th Cir. 1988)
(holding statements resulting from investigator’s three-hour
prayer session did not make the accused’s confession
involuntary). After all, as the “Miranda rules were issued to
counter-balance the psychological ploys used by police officials
to obtain confessions,” the presence of those ploys could hardly
be considered to per se result in an involuntary confession.
United States v. Leiker, 37 M.J. 418, 420 (C.M.A. 1993).
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Appellant’s argument relies, to a great extent, on two
cases: United States v. Bubonics, 40 M.J. 734 (N.M.C.M.R.
1994), aff’d, 45 M.J. at 93, and United States v. Sennett, 42
M.J. 787 (N-M. Ct. Crim. App. 1995). In both cases, the lower
court held that the prosecution failed to establish the
voluntariness of the confession under a totality of the
circumstances. In Bubonics, investigators employed a good-
guy/bad-guy technique and threatened the accused with arrest by
local authorities unless he cooperated. 45 M.J. at 93. One of
the investigators “stormed into the room; vented his wrath;
‘yell[ed] at the accused that he didn’t have time for the
accused, and that he could sign a warrant to have him arrested
by the [local civilian police]’; and ‘slammed the door when he
left the door way . . . .’” Id. at 96. The Judge Advocate
General of the Navy certified the issue to this Court and, with
little explanation, we adopted the lower court’s opinion on this
issue. Id. In Sennett, the accused waived his rights and made
a brief oral statement to investigators. 42 M.J. at 790.
Investigators then confronted him with a “booking order” for a
local civilian jail and “told [him] that a written statement was
needed or he could ask for a lawyer and be taken to the county
jail.” Id. After the accused made the written statement, the
investigators delivered him to that civilian jail for
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incarceration without a warrant or a written agreement required
by Navy regulations. Id. at 789.
We do not find these cases controlling in the context of
this case. As the application of the totality of circumstances
standard rests with the particular facts of each case, a threat
to turn an accused over to civilian law enforcement is but one
factor to weigh. We do not examine each of the facts separately
but rather in conjunction with all the other facts in the case.
Ellis, 57 M.J. at 379 (citing United States v. Martinez, 38 M.J.
82, 87 (C.M.A. 1993)). Bubonics and Sennett offer little in the
form of controlling precedent on how to weigh the facts in this
particularly distinct situation.
Our decision in Ellis is instructive. In that case, the
accused had confessed to abusing his child. 57 M.J. at 378. We
held that his confession was voluntary despite the detective’s
warning that there was sufficient evidence to arrest both the
accused and his wife for child abuse, potentially resulting in
their other children being removed from their home and being
placed in foster care.
While the detectives’ advice to appellant
concerning removing the remaining children from the
home may have contributed to his confession, the mere
existence of a causal connection does not transform
appellant’s otherwise voluntary confession into an
involuntary one. . . .
Not only must we examine the circumstances
surrounding the taking of the statement regarding what
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was done or said, but we must also examine what was
not done or not said. There were no threats or
physical abuse. The questioning did not continue for
days; there was no incommunicado detention, and no
isolation for a prolonged period of time.
. . . .
Viewing all the facts taken together, we agree
with the Court of Criminal Appeals that they were not
“so inherently coercive as to overcome the appellant’s
will to resist.”
Id. at 379 (citations omitted).
In the instant case, the interrogation may have lasted
almost ten hours, but Appellant had several breaks in which he
left the interrogation room, went outside, and smoked. He was
provided water and declined offers for other food and drink.
Admittedly, the agents lied to Appellant: They claimed to have
witnesses who saw him out that night and that his fingerprints
had been found at the crime scene. They advised him they would
tell his commander whether he had cooperated and threatened to
turn the case over to civilian authorities, where he would face
stiffer punishment, if he did not cooperate. But he was neither
physically abused nor threatened with such abuse. Although he
made admissions to law enforcement agents before he prepared the
written statement, he prepared the statement himself, outside
the presence of any investigator. Under the totality of the
circumstances, Appellant’s confession was voluntary.
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B. Uncharged Misconduct
Over defense objection, the military judge admitted into
evidence three alleged incidents of Appellant’s prior misconduct
toward KS: (1) grabbing KS by her purse and swinging her
around; (2) following KS into a bathroom to finish an argument,
at which point she slapped him to get him out of the bathroom;
and (3) arguing and shoving each other over some french fries.
The Air Force Court of Criminal Appeals held that the military
judge erred in selecting the particular reason for admitting the
evidence and in providing a confusing instruction to the
members. Freeman, 2006 CCA LEXIS 160 at *9-*10, 2006 WL 1976504at *4. Nevertheless, the court concluded the error was
harmless. 2006 CCA LEXIS 160 at *9-*10, 2006 WL 1976504 at *4-
*5.
Assuming the military judge erred in admitting the
evidence, we agree with the Court of Criminal Appeals that the
error was harmless. The three acts are relatively minor and, in
the context of the entire record, and in particular Appellant’s
confession, we are convinced such error did not have a
substantial influence on the members’ verdict. United States v.
Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007) (citing Kotteakos v.
United States, 328 U.S. 750, 764-65 (1946)).
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III. Expert Consultant
A. Facts
Before trial, Appellant’s counsel asked the convening
authority to appoint, at government expense, a defense
confidential consultant in sociology, with a specialty in police
interrogation techniques. Appellant claimed he needed the
assistance of an expert to analyze the oral and written
statements purportedly made by Appellant, to assist in
interviewing the AFOSI agents, to help formulate cross-
examination questions, and to advise the defense on
interrogation techniques. He claimed this assistance was
necessary to help counsel determine whether Appellant’s “rights
were violated and whether such interrogation techniques
overwhelmed SrA Freeman’s free will.” He indicated that the
expert might be called to testify about interrogation
techniques, their purpose, and their potential coercive effect.
The convening authority disapproved the request.
At trial, the defense counsel renewed the request for an
expert consultant in police interrogations but modified the
reasons for the request.
While the defense intends to raise the issue of
whether or not the [sic] SrA Freeman’s “statement” was
voluntary in another motion, the defense does not seek
to focus the expert’s assistance on whether the
statement is voluntary. The focus of the request is
on interrogation techniques not SrA Freeman’s
personality or compliant nature. . . . Nowhere in the
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listed duties is the expert requested to do
“personality tests” on SrA Freeman to explore his
tendency toward being compliant or over [sic]
suggestible. Quite to the contrary, the request
details duties consistent with a focus on the
interrogation techniques used in this case. . . .
Furthermore, we are not at this time requesting that
this expert testify concerning his or her
findings . . . .
. . . .
. . . This expertise is necessary for the
defense team to determine the likelihood that SrA
Freeman confessed to a crime he did not commit. . . .
to reconstruct the interrogations, so the defense team
can formulate an understanding as to why SrA Freeman
made statements regarding a crime he did not commit.
The military judge denied the motion. He first explained
the “science” of false confessions as follows: “(1) the police
already have incriminating evidence; (2) he’ll be convicted no
matter what he does; and (3) cooperation and admission will lead
to leniency; he is much more likely to tell interrogators what
he thinks they want to hear.” The military judge concluded that
“none of the factors/practices identified [in an article] by Dr.
Ofshe [one of the proponents of the theory] are particularly
complex or counter-intuitive” and counsel “should require no
expert assistance or testimony to elicit the pertinent facts and
argue to the finder of fact why those facts make their client’s
admissions to the [AF]OSI unreliable . . . .”
On appeal before this Court, Appellant suggests he needed
the expert assistance to challenge the admissibility as well as
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the reliability of the confession. He focuses on the
possibility that the expert would testify on the motion or on
the merits.
B. Law
“[S]ervicemembers are entitled to investigative or other
expert assistance when necessary for an adequate defense.”
United States v. Garries, 22 M.J. 288, 290 (C.M.A. 1986); accord
Bresnahan, 62 M.J. at 143 (citing United States v. Gunkle, 55
M.J. 26, 31 (C.A.A.F. 2001)). The mere possibility of
assistance is not sufficient to prevail on the request.
Bresnahan, 62 M.J. at 143. Instead, the accused has the burden
of establishing that a reasonable probability exists that (1) an
expert would be of assistance to the defense and (2) that denial
of expert assistance would result in a fundamentally unfair
trial. Gunkle, 55 M.J. at 31-32 (citing United States v.
Robinson, 39 M.J. 83, 89 (C.M.A. 1994)). To establish the first
prong, the accused “must show (1) why the 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.” Bresnahan, 62 M.J. at 143. We review the
military judge’s decision for an abuse of discretion. Id.19
United States v. Freeman, No. 06-0833/AF
C. Discussion
Appellant failed to establish the third part of the first
prong of the test. We will examine the parts separately.
(1) Why the expert assistance was needed:
At trial, Appellant claimed that the expert assistance was
needed because “[d]efense counsel does not possess the requisite
knowledge or expertise in this area to ensure that the right
questions are asked and the correct themes developed to paint a
realistic picture of what happened during the interrogation and
the tactics used by the interrogators.”
(2) What the expert assistance would accomplish for the
accused:
At trial, the defense shifted the focus of the expert’s
utility away from voluntariness of the confession to what
happened during Appellant’s interrogation:
While the defense intends to raise the issue of
whether or not the [sic] SrA Freeman’s “statement” was
voluntary in another motion, the defense does not seek
to focus the expert’s assistance on whether the
statement is voluntary. The focus of the request is
on interrogation techniques not SrA Freeman’s
personality or compliant nature. . . .
. . . .
. . . This expertise is necessary for the
defense team to determine the likelihood that SrA
Freeman confessed to a crime he did not commit. . . .
to reconstruct the interrogations, so the defense team
can formulate an understanding as to why SrA Freeman
made statements regarding a crime he did not commit.
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The defense included in the motion a citation to an article by
Dr. Richard Ofshe, which discussed the psychology behind
interrogation techniques and how they could lead to false
confessions.
(3) Why the defense counsel were unable to gather and present
the evidence that the expert assistance would be able to
develop:
At trial, Appellant claimed as follows:
[T]he defense team does not possess the academic or
practical experience to perform the necessary analysis
the expert consultant would be able to perform.
Reading the literature on the subject and interviewing
the interrogators is not sufficient to ensure that SrA
Freeman is able to present a defense in this
area. . . . It is absolutely vital that an expert in
the field be appointed to assist the defense in
knowing which questions to ask and which areas to
address during their interviews and cross examination.
An expert who has vast experience in this area of
science brings elements and abilities to the defense
team that we can simply “not learn in books.”
This is not the first time this issue has been before this
Court. In Bresnahan, the accused confessed to shaking his
three-month-old baby in a manner that eventually caused death
after being told that, in order to save the baby’s life, the
doctors need to know exactly what he had done. 62 M.J. at 140.
At trial, he asked for expert assistance to determine if his
confession was unreliable because of the techniques employed by
the interviewing detective. Id. at 139. We accepted arguendo
that the expert “possessed knowledge and expertise in the area
of police coercion beyond that of the defense counsel and that
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defense counsel could benefit from his assistance.” Id. at 143.
Nevertheless, we held that the military judge did not abuse his
discretion in denying the defense request for expert assistance.
Id. The defense counsel never established why they themselves
were unable to gather and present any evidence that the expert
would have been able to develop. Id. at 143-44.
We accept arguendo the consultant’s expertise. Although it
is by no means clear that the expert would add anything that
could not be expected of experienced defense counsel, we also
accept arguendo that Appellant’s counsel could benefit from the
consultant’s assistance. Nevertheless, we conclude that the
military judge did not abuse his discretion in denying the
defense request for expert assistance because Appellant failed
to establish the necessity for that assistance. After all, what
defense counsel really wanted was knowledge of interrogations
that they could have obtained themselves. They failed to
establish why they were unable to gather the relevant
information and cross-examine the investigators on their
interrogation techniques and their use of those techniques in
eliciting a confession.
IV.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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