Service members charged with an attempt under Article 80 of the Uniform Code of Military Justice sometimes wonder whether being charged with attempting a crime, rather than the completed crime, somehow diminishes their procedural rights, including the right to obtain expert assistance. The answer is that an accused charged with attempt is entitled to the same rights to expert witnesses as an accused charged with the completed offense. The right to expert assistance in the military justice system does not depend on whether the charge is an attempt or a full offense. It depends on whether the expert is necessary for an adequate defense.
The Source of the Right to Experts
In courts-martial, the right to expert assistance comes from several overlapping sources. Rule for Courts-Martial 703 provides the accused the right to the assistance of necessary experts. Article 46 of the UCMJ guarantees the defense an equal opportunity to obtain witnesses and other evidence. And as a matter of constitutional due process, an accused is entitled to expert assistance when it is necessary to present a defense, a principle the Supreme Court recognized in Ake v. Oklahoma, 470 U.S. 68 (1985). The military justice system applies these protections to service members without regard to indigency, meaning a service member does not have to be poor to obtain government-funded expert help when it is necessary.
None of these sources distinguishes between attempt charges and completed-offense charges. The right attaches to the accused and to the need for the expertise, not to the label on the charge sheet.
The Necessity Standard Is the Real Test
The controlling question is necessity. Military appellate courts apply a three-part test, drawn from cases such as United States v. Gonzalez, 39 M.J. 459 (C.M.A. 1994), to determine whether the defense has shown that expert assistance is necessary. The defense must explain why the expert is needed, what the expert assistance would accomplish for the accused, and why defense counsel cannot gather and present the relevant evidence without the expert. When the defense satisfies this showing, the accused is entitled to the assistance at government expense.
This standard is identical whether the charge is an attempt or a completed offense. A member charged with attempt makes the same showing in the same way. If a forensic, scientific, digital, medical, or other field of expertise is genuinely necessary to investigate the facts or to present a defense to an attempt allegation, the right applies with full force.
Why Attempt Cases Often Have an Equal or Greater Need for Experts
In practical terms, attempt cases can present an even stronger case for expert assistance, because the central issues in an attempt prosecution are frequently technical and contested. Article 80 requires the government to prove specific intent and an overt act that amounts to more than mere preparation. Both elements often turn on evidence that experts are well suited to address.
Consider a few examples. Where the attempt allegation rests on digital evidence, such as messages, files, login records, or device data, a digital forensics expert may be necessary to interpret what the data actually shows and whether it reflects a substantial step rather than idle planning. Where the accused’s mental state is in question, a mental health expert may be necessary to address capacity, intent, or the effect of a condition on the formation of specific intent. Where the prosecution relies on the analysis of substances, materials, or physical evidence to show what the accused was trying to do, a forensic expert may be necessary to test or challenge that analysis.
Because the line between mere preparation and a punishable substantial step is fact-specific, expert testimony can be pivotal to showing that the accused’s conduct did not cross that line, or that the intent the government infers from technical evidence is not actually supported. The necessity showing in such cases is often robust precisely because the disputed elements are technical.
Equal Opportunity Under Article 46
Article 46 reinforces the point by guaranteeing the defense an equal opportunity to obtain witnesses and evidence. If the prosecution intends to rely on an expert to prove intent or the nature of the overt act in an attempt case, the defense’s interest in obtaining its own expert to examine, rebut, or contextualize that evidence is strong. The system is designed so that the government cannot enjoy a one-sided advantage in technical proof simply because the charge is framed as an attempt.
How the Process Works
To obtain a government-funded expert, the defense typically submits a request to the convening authority identifying the expert or the needed expertise and explaining the necessity under the three-part test. If the request is denied, the defense can move the military judge for relief. An erroneous denial of necessary expert assistance can implicate the right to present a defense, the right to compulsory process, due process, and the equal-opportunity guarantee of Article 46, and it can be a basis for appellate relief. These remedies are available regardless of whether the underlying charge is an attempt or a completed offense.
Practical Guidance
A member charged with attempt should not assume that the inchoate nature of the charge limits access to experts. The better approach is to identify early what technical or specialized questions the case presents, particularly around intent and the substantial-step requirement, and to build a specific, well-documented necessity showing. The clearer the explanation of why the expert is needed and what counsel cannot do alone, the stronger the request.
Conclusion
Members charged with attempt are entitled to the same rights to expert witnesses as members charged with full offenses. The right to expert assistance in courts-martial flows from Rule for Courts-Martial 703, Article 46, and constitutional due process, and it turns on whether the expert is necessary for an adequate defense, not on whether the charge is an attempt or a completed crime. Given that attempt prosecutions often hinge on technical proof of intent and of a substantial step, the need for expert assistance in these cases is frequently as great as, or greater than, in completed-offense cases.
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.