Rule 702 – Expert Witnesses in a Military Court Martial
If scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to decide a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, can testify thereto through an opinion or otherwise, when (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of dependable principles and methods, and (3) the witness has utilized the principles and methods reliably to the facts of the case.
Trial judges decide preliminary questions about the relevance, propriety and necessity of expert testimony, the qualification of expert witnesses, and the admissibility of his or her testimony.
In United States v. Warner, 62 M.J. 114 (2005), the Court held that Article 46 is a clear statement of the congressional objective against government exploitation of the opportunity to secure an expert substantially superior to the defenses. If the government arms itself with a top expert, it must provide a reasonably comparable expert to the defense.
In United States v. Lee, 64 M.J. 213 (2006), commenting on Warner and Article 46, the Court held the playing field is even more uneven when the government benefits from scientific evidence and expert testimony and the defense is denied a necessary expert to prepare for and deal with the prosecutions expert.
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