Here are the Cox Commission II recommendation and explanation that were relevant to one of the granted issues in Anderson:

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.

Under established precedent, if the convening authority or the military judge determines that the defense counsel is entitled to expert assistance for consultation and case preparation, thedefense is not entitled to consult with a specific expert.7   [7 United States v. Garries, 22 M.J. 288, 290-91 (C.M.A. 1986); United States v. Ndanyi, 45 M.J. 315, 319 (C.A.A.F. 1996).]  If the government can provide an adequate substitute who has the requisite expert credentials and qualifications, the defendant must either accept the substitute or waive the right to government-funded expert assistance.  Witnesses at the hearing informed the Commission of a practice sometimes engaged in by government counsel whereby the government provides the defense with substitute expert assistance for trial preparation and if that government-substituted expert testifies for the defense at trial, the government attacks the expert’s qualifications. We are troubled by a practice that allows the government to attack the credentials of the very expert that the government had previously offered to the defense as an adequate substitute for a defense-requested expert. The Commission recommends a change in the Rules for Court-Martial to prevent the government from attacking the credentials of an expert witness whom the government had previously made available to the defense as an adequate substitute for a defense-requested expert. This would not, of course, preclude the government from challenging the defense expert witness’s methodology or other aspects of the witness’s testimony.

4 Responses to “Cox Commission II and the issue that Anderson didn’t decide”

  1. Anonymous says:

    If I were a trial counsel, I’d feel a wee bit shady attacking the fundamental qualifications of the expert I gave to the defense.

  2. John O'Connor says:

    I assumed the case was going to be about the commission’s main theme — creating an article for abuse of pets.

  3. Phil Cave says:

    You might. But this has happened in more cases than Anderson and none of the prosecutors in such cases felt the slightest bit of queeziness. I’ve had that experience and I know a number of active duty and civilian colleagues who had the experience.
    Very telling about the perception of military justice.
    Pity the Court appears to have moved away from the “perception doctrine.”

  4. Balkan Ghost says:

    Why shouldn’t opposing counsel be able to go after each other’s experts? If I am the gov’t counsel, even if defense has the best expert in the business, I’d still hope that I could stoutly cross-examine that defense expert, and even attack their qualification to give certain opinions. That’s advocacy.

    This issue is a non-issue. If the gov’t attack is so fundamental as “you’re not really an expert, are you?,” then gov’t is shooting themselves in the foot, since defense then has legitimate grounds in a 39(a) session to pause the trial until the gov’t produces a real expert.