Yes, and the right to do so is stronger than many service members realize: it does not depend on being able to pay. When the government’s case rests on forensic or scientific proof, the defense can obtain its own expert at government expense, but only by making a specific showing through a specific channel. Knowing that showing and that channel is how the right is actually secured.
The foundation: equal opportunity
The starting point is R.C.M. 703, which gives the prosecution and the defense an equal opportunity to obtain witnesses and evidence, including compulsory process. It rests on Article 46 of the UCMJ and the Sixth Amendment. So the playing field is meant to be level, and forensic expertise is part of what that level field includes.
The showing: necessity, not ability to pay
The key principle is that a service member is entitled to expert assistance at government expense regardless of indigency, on a proper showing. What must be shown is concrete:
- The requested assistance is relevant and necessary to the defense, meaning it would contribute to the defense in a positive way and is not merely cumulative.
- The government cannot or will not provide an adequate substitute.
The purpose is squarely about forensic science: an accused is entitled to expert help to have a meaningful chance to challenge the government’s scientific proof, its reliability, and its interpretation. That is the heart of the entitlement, the ability to test the other side’s forensics.
The procedure: request the convening authority
The mechanics matter, because the request goes to a particular decision-maker. Before employing an expert at government expense, the party, with notice to the opposing side, submits a request to the convening authority to authorize the employment and set the compensation. The request must include a complete statement of why the expert is necessary and the estimated cost. If the convening authority denies a proper request, the matter can be taken to the military judge.
It is also worth distinguishing roles: an expert consultant assists the defense team in understanding and probing the science, while an expert witness testifies. The necessity showing can support obtaining either.
Picture a member who cannot afford an expert to challenge the government’s lab results: a showing that the expert is necessary can secure one at government expense, since the right does not depend on ability to pay.
The throughline is that forensic expert help is a real entitlement that turns on necessity rather than money. The defense shows the expert is relevant and necessary and that the government has no adequate substitute, routes the request properly to the convening authority, and thereby gains the means to test the science the prosecution relies on.
Frequently Asked Questions
Does a service member have to pay for a defense forensic expert?
No. Expert assistance is available at government expense regardless of ability to pay, provided the defense makes a proper showing of relevance and necessity.
What must be shown to get an expert?
That the assistance is relevant and necessary to the defense and that the government cannot or will not provide an adequate substitute.
Who decides the request?
The request is submitted to the convening authority, with notice to the opposing party; if it is denied, the issue can be raised with the military judge.
This article is general information about expert assistance in courts-martial. It is not legal advice and does not create an attorney-client relationship. Application is fact-specific and the law can change. Anyone facing a court-martial should consult qualified defense counsel.
Sources
- U.S. Court of Appeals for the Armed Forces, Daily Journal Digest: Experts, Investigators (Appointment to Defense Team)
- Joint Service Committee on Military Justice, Manual for Courts-Martial (Rules for Courts-Martial)
- Legal Information Institute, 10 U.S. Code § 846 (Art. 46, Opportunity to obtain witnesses and other evidence)