Defense counsel in a court-martial frequently need help from experts, whether a forensic scientist to examine drug-testing data, a digital examiner to analyze electronic evidence, a psychologist to evaluate a client, or an investigator to develop facts. A common question is whether such requests are granted as a matter of course. The honest answer is that they are not automatic. Expert assistance is available to a military accused as a matter of due process, but only after the defense makes a specific showing of necessity. Requests are granted when that showing is made, and denied when it is not, so the outcome depends on the quality of the request rather than on any routine entitlement.
The legal foundation: Article 46 and equal opportunity
Article 46 of the UCMJ, codified at 10 U.S.C. 846, provides that trial counsel, defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence, in accordance with regulations the President prescribes. This principle of equal access undergirds the defense right to expert assistance. The accompanying procedural rule, Rule for Courts-Martial (RCM) 703, addresses the production of witnesses and evidence, including the employment of expert assistants and the production of expert witnesses.
The leading authority on expert assistance is United States v. Garries, 22 M.J. 288 (C.M.A. 1986). The court, citing Article 46 and RCM 703, held that a court-martial accused is entitled to expert assistance as a matter of due process after demonstrating necessity. Importantly, this right does not depend on the accused being indigent. Service members are entitled to investigative or other expert assistance when it is necessary for an adequate defense, regardless of their ability to pay.
The necessity standard
Because the right is conditioned on necessity, the defense must satisfy a defined showing to obtain government-funded expert help. Under the Garries framework, to show necessity the defense must demonstrate three things: the reason the assistance is needed, the goal the assistance is expected to accomplish, and why the defense is unable to gather the relevant evidence or develop the relevant matter without the expert’s help.
This is a substantive burden. A bare assertion that an expert would be useful will not suffice. The request must connect the requested assistance to a specific issue in the case, explain what the expert will do, and show that the defense genuinely cannot proceed adequately without it. When a request meets this standard, it should be granted because the assistance has been shown to be necessary to a fair trial. When the request is conclusory or fails to tie the expert to a real defense need, it can properly be denied.
Why requests are not routinely granted
The necessity requirement is the reason expert requests are not rubber-stamped. The system is designed to provide experts where they are needed for an adequate defense, not to fund every expert a defense might conceivably want. A request that does not explain why the existing record or available resources are insufficient gives the deciding authority little reason to grant it. Conversely, a request that carefully establishes the three Garries elements gives a strong basis for approval and a strong basis for appellate relief if it is wrongly denied.
This is why the outcome is best understood as request-dependent rather than routine. Well-prepared, specific, and necessity-focused requests have a real prospect of being granted. Vague or boilerplate requests do not.
The government’s option to provide adequate alternatives
Even when the defense shows necessity, the government has a way to satisfy its obligation other than funding the defense’s chosen expert. In the usual case, the government may meet its responsibility by providing the investigative, medical, and other expert services available within the military. In other words, the defense is entitled to competent expert assistance, but not necessarily to the specific individual the defense prefers, if the government supplies an adequate substitute.
This creates a recurring point of contention. The defense may argue that a government-provided expert is not adequate for the particular issue, lacks independence, or cannot perform the needed analysis. The defense may also argue that an expert who is part of the prosecution team cannot serve as a neutral defense consultant. These disputes are resolved by examining whether the alternative the government offers genuinely meets the defense’s demonstrated need. So a request can be granted in substance, with the government providing a qualified expert, even if the specific named expert the defense asked for is not approved.
How a request is made and decided
In practice, the defense usually submits the request to the convening authority, who can authorize the employment of an expert assistant. If the convening authority denies the request, the defense can renew the request before the military judge by motion. The military judge then evaluates whether the defense has shown necessity and whether any government-provided alternative is adequate. If the judge finds the assistance necessary and no adequate alternative has been provided, the judge can order relief, which may include abating the proceedings until the assistance is provided.
This two-step structure, with convening-authority review followed by judicial review, gives the defense a meaningful path to obtain assistance and gives the accused a basis for appeal if assistance was improperly withheld. On appeal, the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces review denials, often examining whether the defense met the necessity showing and whether any denial was harmful.
Practical guidance for building a successful request
Because the right turns on the strength of the showing, defense counsel improve their chances by addressing each Garries element explicitly. The request should identify the precise issue the expert will address, such as the reliability of a urinalysis result or the interpretation of digital metadata. It should state what the expert will do and what the defense expects to learn or establish. It should explain why counsel cannot adequately handle the matter alone, given its technical nature. Where the government offers a substitute, counsel should be prepared to explain concretely why that substitute is inadequate for the specific need, rather than objecting in general terms.
A service member who believes expert assistance is essential to the defense should raise this with counsel early, because developing a proper necessity showing takes time and may require preliminary information about the technical issues involved.
Conclusion
Expert assistance requests under Article 46 are not routinely granted in the sense of being automatic. The military accused has a due-process right to expert assistance regardless of indigency, but that right is triggered only by a specific showing of necessity under United States v. Garries: the reason for the assistance, its intended goal, and why the defense cannot proceed without it. When that showing is made and no adequate government-provided alternative exists, the request should be granted, and a wrongful denial is reviewable on appeal. The practical lesson is that the strength of the request, not any blanket entitlement, determines the result, so service members should work with experienced counsel to build a precise and well-supported request.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.