I understand that the Cox Commission II report should be available online around 1400 to 1500.  I’ll write more about it tonight.  But for the time being, here are the report’s seven specific recommendations:

1.  Expand appeal to the Courts of Criminal Appeals and Court of Appeals for the Armed Forces (CAAF) to make appellate review a matter of right in every contested court-martial.

2.  Enact the Equal Justice for Our Military Act of 2009, now pending in the House of Representatives, to permit direct appeal to the Supreme Court by convicted servicemembers, regardless of whether CAAF grants certiorari.

3.  Consider permitting accused servicemembers to waive their right to appellate review in pre-trial agreements.

4.  Improve access to defense counsel to expert assistance during case investigation and trial.

5.  Prohibit trial counsel from attacking the credentials of an expert witness if the government provided that specific expert to the defense as an adequate substitute for an expert consultant requested by the defense.

6.  Require military law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at law enforcement offices, detention centers, or other places where suspects are held for questioning, or, where videotaping is not practicable, to audiotape the entirety of such custodial interrogations.

7.  Repeal Uniform Code of Military Justice, 10 U.S.C. § 925 (Article 125, sodomy).

The report also identifies two additional areas of concern:  (1) jurisdiction over civilians; and (b) animal abuse and abandonment overseas.  The report notes areas for further consideration regarding the former and suggests adoption of a specific prohibition against the latter.

43 Responses to “Cox Commission II report”

  1. Anonymous says:

    I really like number 5. How can you proclaim someone adequate and then attack their “adequacy?”

  2. Phil Cave says:

    Happens all too often.

  3. Christopher Mathews says:

    I would not have thought there was such a thing as an expert with qualifications deemed to be beyond question in any field.

    Assuming that’s no longer to be the case, how far does this new doctrine extend? What do you do, for example, with an expert who, when requested for the purpose of testifying about sleep disorders and whether the accused suffers from sleepwalking, then opines that the accused committed the charged offense while sleepwalking and therefore could not have formed the requisite intent in a case where intent is an element? Can the trial counsel challenge his qualifications to render that opinion?

    Does the answer turn on whether we define the ultimate opinion as being within or beyond the scope of the original request?

    And yes, I have a specific case in mind where that happened.

  4. Mike says:

    That expert, or any expert, would/should not be able to testify to the ultimate question. New rule or old rule. The TC should not have to challenge, because the DC and MJ would (should) have already stepped in.

    This rule appears to seek to stop the government from saying “you went to Bob’s College of Knowledge and only graduated 2 years ago, why should this Court trust you as an expert?” when then defense wanted the tenured Yale professor that the government denied.

  5. Christopher Mathews says:

    The rule appears to incentivize asking for the most outrageously expensive expert one can find, with the expectation that the government will not be able to fund his appearance … in order to obtain an expert whose qualifications cannot be challenged by the government.

  6. Christopher Mathews says:

    (BTW, Mike, I think your rule would put a lot of forensic experts out of business).

  7. Anonymous says:

    You are confusing adequacy with accuracy. One can be an adequate expert and be wrong. This rule would keep the government from granting an expert in lieu of a requested one (either because the government itself conceded the need for such an expert or the Court did) who was “adequate” and then turning around and challenge the expert they gave the defense as being adequate.

    They will still be able to challenge the accuracy and basis of the expert’s opinions and testimony and should an expert stray out of the area for which they were requested/granted, the government would assumedly also be able to challenge that as well.

    This just stops the government from giving the defense an expert that isn’t adequate, saying that it is one for the purpose of the request, and then turning around and sandbagging the defense by pointing out how they aren’t even adequate to give AN opinion in the purported area as an expert.

    In your hypo, why would the TC have to attack his qualifications to make that opinion when the rules dont allow that opinion in the first place, and even if they did/do, their expert can highlight one would assume what a loopy opinion that was/is?

    It wouldn’t be about qualifications, it would be about accuracy.

  8. RY says:

    Agree with Anon- it’s not about whether the expert is qualified to give an opinion, but rather whether any expert could really give that particular opinion. I.e., is there an accepted test, methodology, literature, etc. which conclusively support such an opinion? TC could not challenge his credentials but is certainly free to call his opinion crazy and unfounded and explore the reasons for that. TC just can’t say the expert is crazy because he went to podunk university and rented a degree.

  9. Christopher Mathews says:

    Anon 1633: No, I don’t think I am.

    My so-called “hypothetical” (which, as I noted, is an actual case) was intended for illustrative purposes, to address the question I posed in my original post: what is the TC to do when an expert requested for one purpose strays off the reservation and opines on other matters?

    The military judge could, I suppose, rule that the prohibition against attacking the expert’s qualifications is lifted as to that particular subject — which will force the court to decide what opinions are sufficiently close to the subject matter of the request to be encompassed within the prohibition. Perhaps we could have expert testimony on that point, too.

    The net effect would, I think, be close to an estoppel operating against the government: there would be no circumstance under which the TC could cross the expert as to his training and experience, regardless of what the expert opined.

  10. Christopher Mathews says:

    Fundamentally, I dislike the notion that any witness can be treated as beyond challenge on a matter so directly related to the weight to be given their testimony.

    I understand the desire to keep the government from engaging in gamesmanship when producing experts, but I don’t see that allowing the defense to engage in its own gamesmanship produces a better result.

  11. Anonymous says:

    I take issue with the recommendation to repeal Article 125. Under the current 120 Foricible Sodomy seems to equate to aggravated sexual contact, with a max punishment of DD and 20 years. However under 125 the max punishment is DD and Life. As the current 120 stands it is impossible to rape a man, or for that matter analy rape a woman (I apologzie for the graphic nature of this response), but 125 provides a way to charge that crime in a way that will give a just sentence. After skimming over the Cox Commission’s recommendations they seem to focus on the consensual sodomy side of 125, but they fail to look at the forcible side of the article and vast disparity between 120 and 125. As it stand now if a person rapes a young girl they can be sentenced to life under 120 but if they rape a young boy they can only get 20 years.

  12. Southern Defense Counsel says:

    Judge Mathews,

    With respect to your hypothetical, would the government have had a similar basis to attack the requested expert? If so, I see no problem. If no, then I see gamesmanship. I think that if the government wants to make this an issue then the question has to be, if the defense had received what they had wanted, would the government have been able to make the same attack with the same success. Seems like an issue that could be resolved at a 39(a) session with varying degrees of ease.

  13. Anonymous says:

    Same anon and I am still not understanding your hypo I guess. If a expert requested for one purpose strays off the reservation then they are no longer testifying as an expert.

    So seems to me the prohibition no longer applies. I see nothing in the proposed rule that says defense counsel, your expert gets to say in his opinion aliens abducted your client, replaced him with a copy, who then committed the crime, only to then be replaced by your client again, post-probe, who is of course innocent and trial counsel, sorry you can’t call out said opinion as crazy.

    I mean it seems clear to me it’s about the qualifications for the expert as requested, not about the qualifications of the expert ad infinitum.

  14. Christopher Mathews says:

    SDC —

    Arguably it would — but there’s no way to test the contrafactual. The first expert might not have been subject to a plausible attack on his qualifications, but perhaps would not have offered the same opinion as the second, because he is more qualified.

    There’s a temptation to say that’s the government’s tough luck; and if we’re not particularly interested in achieving an accurate result, maybe that’s the right answer. But let’s take it one step further. Suppose the requested expert genuinely has expertise in the area in which the substitute eventually opines; but the opinion given by the second is arguably not within the scope of the request. Can the government now attack the substitute as not qualified, when they could not have plausibly leveled the same charge against the requested expert?

    The answer, it seems to me, should clearly be “yes,” even under the Cox proposal … but I see real problems for military judges in making that kind of call, particularly in some of the more arcane fields of scientific endeavor. When does an opinion stray sufficiently from the subject matter for which an expert was originally requested to lift the prohibition? I also see issues in distinguishing between various subdisciplines. A request for an “expert in surgery” might be honored with a highly-qualified general surgeon who the trial counsel might nonetheless believe to be way out of his league on pediatric surgery, neurosurgery, or microsurgery. Should the scope of the cross be limited by the precision with which the original request for an expert was propounded?

    Regardless of how it’s approached, I have a philosophical aversion to saying that what would otherwise be a permissible challenge to a witness’ credibility is off-limits depending on who calls him.

  15. Anonymous says:

    “Prohibit trial counsel from attacking the credentials of an expert witness if the government provided that specific expert to the defense as an adequate substitute for an expert consultant requested by the defense.”

    Seems to me your hypo ignores the word specific in front of expert. If the government gives a different expert, then it seems like it isn’t specific anymore, it’s a different expert.

    One would assume the accused has an appellate issue for not getting the expert they requested but that’s a different kettle. The current granted expert would be safe only vis-a-vis the area for which he was granted, not another.

  16. Christopher Mathews says:

    Anon 1907: I read this provision to mean that where the government offers Expert Doe as a substitute for the defense-requested Expert Roe, the TC is forbidden from attacking the qualifications of Expert Doe.

    Your assumption that the “current granted expert would be safe only vis-a-vis the area for which he was granted” gets back to the original question: how do we determine the scope of the “area for which he was granted?”

    And doesn’t making the scope of cross dependent on the wording of the expert request encourage gamesmanship in preparing that request?

  17. Anonymous says:

    how so? Why would a defense counsel engage in silliness when it could jeopardize getting an expert at all?
    One assumes the expert was requested because it was needed. One also assumes a substitute was given because someone, either the govt or the judge agreed a suitable substitute was needed.

    The only real issue remaining would be Gov’t giving a pale substitute without the training or experience.

    I think the concern you have just isn’t something that would be manifested more than once in a blue moon. And IF it happened once somehow, it surely wouldn’t happen again for that defense attorney because future requests would get a LOT more scrutiny.

  18. Christopher Mathews says:

    Anon 1926, if you place a form of cross-examination off-limits to either party, the other will naturally have an incentive to get as much of its case under that protection as possible.

    If we’re starting from the assumption that the TC is engaged in gamesmanship, I see no fault in assuming the DC will seek to do the same, if he can. I don’t think defense counsel are inherently any less likely to try to game the system in their clients’ favor than prosecutors are to do so against them.

  19. Anonymous says:

    they are when they have to go hat in hand for an expert when the government does not.

    Let’s whittle this down.

    1st, most of the time, nearly all of the time, the accused if he gets an expert, will get one generally in the area he requested. He is not going to ask for a forensic pathologist and get a regular old MD.

    2nd, in the rare occasions he gets something that doesn’t fit what he asked for, the judge is going to say, government, give him what he asked for.

    You are now left with the very rare situation where he asks for expert type a, is given expert type b, and is told you didnt provide enough evidence to justify expert type a, but either somehow you did for b, or hey you are getting b shut up and take it or not.

    I dont think by the way that you can qualify what is going on now by TC and questioning experts as “gamesmanship” It is blatantly allowed by the rules.

    So just so I understand your concern, you think:

    a. it will often be the case that DC get an expert that isnt even in the same area are the one they requested

    b. therefore they will have to try and get them to opine on an area that they are not authorized to opine on

    c. there will be no way to say simply say (from the judge not the TC), hey DC that isnt an area your expert has been declared an expert in, so the DC can call a proctologist and have her talk about brain surgery and there is nothing that can be done about it?

    I just dont see it. The rule proposed just does not seemed to be so broad that the TC can’t object and the judge cant sustain if the expert completely leaves the area for which they have been granted.

  20. Southern Defense Counsel says:

    Judge Mathews,

    I certainly understand your concerns. I would note, without being glib, that TC has a different obligation to the process than DC does. A TC is to see that “justice is done.” A DC is to advocate for his client within the grounds of the law. Thus, saying “Well, DC engages in gamesmanship” is not exactly the best response in my book.

    So, if we start by saying that TC and DC both engage in gamesmanship the real question is should TC do so, and should DC do so. The reality is, when DC asks for Expert Roe at $40,000, and the CA gives Doe at $20,000, and the TC then says “Doe is not qualified to speak as to this issue” or some variant thereof, at trial, which happens, there is a perception that the accused cannot receive a fair trial within the MJ system.

    The question is one of false equivalence. A courtroom is not a baseball field. Sometimes, you have to let the defense have more leeway to ensure a a fair and just system.

  21. Southern Defense Counsel says:

    I would also note, parenthetically, that if we are looking for more examples of false equivalence one need look no farther than the “exculpatory no” doctrine. It’s ok for investigators to lie to suspects, but not vice versa.

  22. Christopher Mathews says:

    SDC —

    Oddly enough, I had considered the dichotomy between TC and DC. My conclusion is that the TC is more likely to be constrained by his obligations to serve the cause of justice to avoid gamesmanship than the DC, who has no such obligation. This is not a universally-shared opinion, however, especially among defense counsel … and I didn’t include it in my analysis because I didn’t think it germane to my ultimate assessment of the rule.

    I disagree with the notion that “you have to let the defense have more leeway” in order to achieve justice. To the extent that the current system distorts the search for justice, I’m all for changing it — but I’m not in favor of simply distorting it to favor the other side.

  23. Christopher Mathews says:

    Anon 1958: I think you’ve misunderstood my concerns, starting with “a.” It’s not that the defense will get an expert “that isnt even in the same area are the one they requested,” but rather that it will be difficult, if the request is crafted broadly enough, to say whether the expert is opining in an area outside the protection of the rule.

    The protcologist v. brain surgeon example you posed is pretty clearly not the one I described above. But it did give me a chuckle, so thanks for that.

  24. Southern Defense Counsel says:

    Judge Mathews,

    I guess that the fundamental difference in our views then is my view that too often TC, SJAs and CAs do engage in gamesmanship. I believe that in this scenario “distorting” the rules to favor the defense would result in a more just result, because it would encourage TC to provide true “substitutes” for Defense experts, and not just the cut rate MD/PhD that happens to be around.

    As for defense requesting an overly broad expert, I believe that most TC would just say “denied as overbroad” (a common discovery response) and then make DC file a motion with the judge who will no doubt require DC to state exactly what this person they want will testify to.

  25. Anonymous says:

    I apologize for being dense but how would you draft it broadly enough to make it hard to say whether someone is opining in an area outside protection of the rule?

  26. Southern Defense Counsel says:

    I apologize for the term “overly broad expert” as it immediately brings to mind the nutty professor. I meant making an overly broad request for an expert.

  27. John O'Connor says:

    It seems to me that this is the sort of small potatoes, one-off issue that isn’t really in the sweet spot for a self-appointed commission that is better suited, if anything, to deal with bigger picture issues. I mean, why don’t they just go through the Military Justice Reporter and make a list of the decisions they disagree with?

    A better way to deal with this issue is through case law. A DC who is given an alternative expert should file a motion in limine to bar the government from questioning the qualifications of its expert for the topics on which it sought an expert. If the MJ denies the motion, take it up on appeal as a violation of due process.

  28. Christopher Mathews says:

    Anon 2151, see my post at 1901 above.

    JO’C, an alternate approach would be to request an instruction from the military judge to the effect that the government, when asked to provide an expert in the field of [insert expert request here] provided [insert name of alternate witness here], and that this factor must be considered and given weight when considering the expert’s qualifications.

  29. Anonymous says:

    Yeah, just don’t see it. The point you raise in 1901 again goes to something other than what the clear intent seems to me, and others, of the proposed rule. It is simply to prevent a general attack of the qualifications of an expert.

    The rather esoteric example you come up with just will not happen very often and I dont think it too hard for a judge to come up with a valid, and appropriate response. And as pointed out, at the end of the day, sometimes the defense just gets bennies the government doesn’t (and vice versa).

    As for finding the right result, this is usually one expert fighting another, so who knows what the “right result” is?

  30. Christopher Mathews says:

    Anon 0053, I really don’t feel comfortable with any of your analyses, which appear to me to break down into (1) it won’t happen much anyway, (2) it won’t be a problem for the judge anyway, and (3) even if it happens and it is a problem, too bad because — hey, it’s the defense that benefits, so it’s all good anyway.

    As I said above, if there’s really a problem with TCs (and, as someone else suggested, SJAs and CAs) gaming the system to disadvantage the accused, then by all means, find a way to level the playing field. I just don’t think tilting it to favor the other party is appropriate.

  31. MJW1 says:

    Agree with J O’C’s 1st para 100%. Like his alternate approach in 2nd para 87%.

  32. RY says:

    The policy underlying our criminal justice system: it is better 10 guilty men go free than 1 innocent man suffer. The system is supposed to ensure the accused is not at a disadvantage, not to prevent the government from losing its advantage. Consequently, the system is better served to be tilted towards an accused, who is far more likely to be disadvantaged than the government.

    As noted earlier in this thread, TC and DC simply have different obligations to the justice system. We are not all in search of truth. In fact, neither side is usually interested in “truth” but rather their version of it. Some of the great litigators in history have echoed this sentiment, noting that criminal justice is less about finding the truth than it is a system of resolving criminal allegations peacefully.

  33. Anonymous says:

    “I just don’t think tilting it to favor the other party is appropriate.”

    We tilt the playing field all of the time. 413 and 414? Defense relaxing the rules on sentencing (and even before that what the defense can get in under the rules is more extensive than the government)
    Hearsay, if the accused says something against him it isnt hearsay and comes in but say something in favor of himself and it is hearsay and thus barred.

    So the idea of disdain at any even slight tipping of the scales in favor of the defense seems inexplicable to me.

  34. John O'Connor says:

    Christopher Mathews:

    If I were an MJ (and there are many reasons I am not) and the Government crossed an expert it provided on his qualifications, I would probably call a 39(a) and tell the Government the line of questioning was objectionable and I would give a curative instruction. At a minimum, I would give the instruction you suggest above upon defense request.

  35. Christopher Mathews says:

    JO’C — I’m not sure I would shut down the government’s line of questioning, for the reasons stated above, but I would certainly give the instruction, and I would probably do so sua sponte.

    FWIW, I think such an instruction would shut down most of the perceived abuse the Cox II rule is apparently designed to address. The DC would have a field day: Now, in a few minutes, the judge is going to tell you that Dr. X was provided by the government when they were asked for an expert in Science Y. Think about that for a second. When they had to provide an expert in Science Y, the government stepped right up and said, “Well, sure, here’s Dr. X. We think he’s an expert.”

    Now that he’s given his opinion, though, they’re all in a panic, because the expert they provided — the expert they chose — is saying their case is full of holes. So now it’s time to attack the messenger. But as the judge is going to tell you — and common sense tells you — the fact that the government picked him, that tells you something about his qualifications right there.

    And the fact that the government is now desperately trying to attack its own choice as an expert, that tells you something about the weakness of their case.

  36. Anonymous says:

    Of course, the Court has also allowed government to substitute expert X for Y OR the accused has accepted without objection expert X for Y.

    So in the latter case that eloquent field day address would ring hollow (because the accused never objected to Dr. X), and in the former, the TC simply has to point out that this was all decided by the judge, who determined that Dr. X is what the defense had shown they needed, not Dr. Y.

    I don’t think it would shut down abuse (and I disagree with the term perceived) it would simply muddle things up. Did the accused get screwed the panel wonders, if so, why did the judge leave them with that expert?

    Seems to me better to simply remove the duplicitous challenge to basic qualifications from the start.

  37. Christopher Mathews says:

    I really don’t see why having the military judge rule that Dr. X was an expert would hurt the defense’s argument that Dr. X, was, in fact, an expert.

    Nor do I see why the defense would need to object to Dr. X in order to prove that Dr. X’s bona fides were up to par.

  38. Anonymous says:

    You made up this scenario, and you listed it as:

    A. Defense asks for Y
    B. Defense gets X
    C. Defense does not feel that X equals Y OR they needed the expertise of Y, not X
    D. Defense tries to use X to give the opinion they needed from Y even though X was what they wanted and not given to them

    Essential for that scenario to work would have to include either:

    1. Defense took X and didnt object to not getting Y, meaning to the Court they were saying X gives us what we need


    2. Defense objected to X, said they needed Y and the judge said to pound sand

    If the former, then coming in and complaining to the jury that hey we tried to get Y but we were only given X, will be followed by the government saying, hey they never told us X wouldn’t do it for them, they accepted him, flaws and all, we are just pointing out the flaws.

    If the latter, then the response would be, hey the judge went through this all and determined the defense only needed X, not Y. Either way it does not solve the problem as you claim.

    And that problem is not the very limited hypo you propose, but the more general reality of TCs attacking the BASIC competency of an expert that they’ve declared an “adequate substitute” to the expert requested.

  39. Anonymous says:

    Funnier still, I’ve seen trial counsel try to impeach a defense witness provided by the government with an “aren’t you being paid to testify for the accused” line of questioning, opening the door to a discussion of the fees approved by the convening authority himself.

  40. Christopher Mathews says:

    Anon, I get the sense that you’re reading something other than what I wrote.

    In the scenario I outline above, Dr. X gives the tesimony the defense wants, the government attacks Dr. X’s qualifications, and the defense points out that the government vouched for Dr. X’s expertise right up to the moment he said something they didn’t like … and then attacked him.

    The defense is not “complaining to the jury,” as you put it, about having Dr. X rather than Dr. Y.

  41. Anonymous says:

    Well, I guess you’ve switched arguments because your main concern above before seemed to be potential shenanigans by defense counsel. So if your scenario is the more common situation, what’s the harm in simply barring the government from attacking the basic qualifications of an adequate substitute they provided again?

    And what about clients who get defense counsel who aren’t so savvy or quick on their feet to make the argument you propose would cure this issue?

  42. Christopher Mathews says:

    Anon, as I outlined above, I don’t endorse a ban on challenging a witness’ qualifications. The comments that you characterize as “switched arguments” are my suggestions for addressing what some regard as government gamesmanship, short of imposing such a rule.

    As for your question about defense counsel who are too slow on the uptake — I think that problem’s beyond the scope of the Cox II recommendations, and certainly beyond my meager abilities to rectify.

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