Defending the "Indefensible":

A Primer to Defending Allegations of

Child Abuse

[Major Beth A. Townsend, USAF]{.smallcaps}[^1]

> Perhaps the most valuable result of all education is the ability to
> make yourself do the thing you have to do when it ought to be done,
> whether you like it or not; it is the first lesson that ought to be
> learned; and however early a man's training begins, it is probably the
> last lesson that he learns thoroughly.
>
> *-Thomas Huxley*

## I. INTRODUCTION

At some point in a tour as a defense counsel, many Air Force attorneys
will encounter a client accused of abusing a child, either physically or
sexually. These same defense counsel may field questions or remarks from
their peers, family and friends, questioning how they could defend such
clients. It goes without saying that any abuse of a child is deplorable
and that these cases evoke a great deal of strong emotional responses.
Defending a case involving allegations of child abuse not only
challenges a defense counsel as an advocate, but also tests the ability
of a defense counsel to defend a case in spite of personal feelings
regarding the case or the accused. While many counsel will encounter
these cases, it is not often that they will have sufficient experience
to overcome the steep learning curve involved in mounting a successful
defense. The purpose of this article is to provide the "nuts and bolts"
for the novice in defending allegations of child abuse. It is designed
to take the defense counsel from the initial meeting with the client
through the sentencing phase of trial. While not all encompassing, it
hopefully provides a basic framework with which to begin preparing a
defense of such allegations as well as strategies to consider when
reviewing the client's options and various approaches to trial. This
article takes the defense counsel through a case beginning with pretrial
matters such as initial advice for the client, discovery issues, expert
assistance, and the Article 32 hearing. The trial section includes
guidance regarding motion practice, voir dire, cross-examination of the
child, dealing with expert testimony and closing argument. The article
concludes with a brief review of sentencing strategies and tips on
preparing a client for a guilty plea inquiry.

# **II. PRETRIAL MATTERS**

###### 

###### A. First Contact

Once a client enters the defense counsel's office and informs him that
he[^2] is accused of abusing a child, one of the first things that the
defense counsel should do is determine what, if any, statements the
client has made to any third party regarding the allegations. At the
outset of representation, it is better to wait to ask the client for
information regarding the allegations. While the defense counsel is
required to ask the client what he knows about the allegations,[^3]
before those conversations takes place, the attorney can save time and
energy by determining the specific allegations and gathering all the
information the government has. A prudent defense counsel will wait
until later in the process to have these discussions with the accused.
This will assist the counsel in asking the relevant and necessary
questions.

## B. Pretrial Statements

Barring some extraordinary circumstances, the defense counsel should
advise the client to remain silent and to refrain from any conversations
with any third party about the allegations. This is especially important
if the client has not made any previous statements. At this time, the
defense counsel should inform the client of the various agencies that
will contact him simply as a result of the allegations that have been
made. These agencies include the Office of Special Investigation (OSI),
Family Advocacy, Mental Health, and various civilian agencies like child
protective services. He should inform the client that while he may be
required to attend various appointments with these agencies (other than
OSI), anything he says, can and will be used against him, often without
Article 31 rights advisement.[^4]

## C. Statements to Mental Health Providers

The client should be advised that statements made voluntarily to mental
health providers may be introduced against him.[^5] The Air Force has
provided limited confidentiality to members through the Limited
Privilege Suicide Prevention Program.[^6] However, this limited
privilege applies only after the commander has offered non-judicial
punishment or the preferral of charges[^7] and only if a mental health
provider[^8] determines the members to be a suicide risk. Once the risk
of suicide is no longer present, the privilege ceases to apply.[^9]
There appears to be a move in the appellate courts to recognize a
psychotherapist-patient privilege;[^10] however, until that happens, the
client is better served to remain silent. Unless the client has already
confessed to the OSI or child protective services, or has a strong
desire to plead guilty, it may be best for him to refuse to answer
questions with regard to the allegations when dealing with any outside
agency. The defense counsel should recognize the investigation and legal
process could be a long and stressful ordeal for the client. One of the
best sources to refer him to for assistance is the Air Force chaplaincy.
Chaplains are the only Air Force members, other than the defense
counsel, who can provide a recognized privilege[^11] as well as
invaluable support for the client. However, before sending the client to
see the chaplain, the defense counsel should establish the limits of the
privilege.[^12]

## D. Pretext Phone Calls

The defense counsel should also advise the client against discussing the
allegations with the accusers. One investigative tool used by the OSI is
a pretext phone call. Essentially the OSI will have the victim call the
client and attempt to obtain incriminating statements from the accused
in the course of a taped phone call. Statements obtained in such a
manner are generally admissible against the client[^13] and can be very
damaging, especially if he has not yet made any statements.

## E. Strategies When The Client Has Provided A Confession

If the client has made a confession, it will be helpful to ask him at
the first meeting exactly what the confession contained and the
circumstances surrounding the taking of the confession in order to
determine the voluntariness of the statement. Issues to be investigated
include whether the interrogation contained discussions regarding
civilian prosecution, as well as military action, either by the military
law enforcement agents[^14] or by social workers.[^15] It is important
to do the legwork and research ahead of time, as any challenge to the
voluntariness of the confession before the members must first be made on
motion to the military judge.[^16] The defense counsel may also face a
situation where the client has confessed but subsequently recants. While
the initial response to the recantation may be skepticism by the defense
counsel, there is a developing body of research that addresses
situations in which innocent people confess to crimes they didn't
commit.[^17] This research may be helpful in explaining either to the
judge or members why the confession is unreliable.[^18]

If the client has confessed and there is no issue regarding
voluntariness, the defense counsel should begin to evaluate all options
available to the client. These include resignation or administrative
discharge in lieu of court-martial, and pretrial agreement negotiations.
When it appears that the facts will not be disputed in the case, clients
should begin therapy, voluntarily, as soon as practicable. Every effort
must be made at the earliest date to determine the extent and content of
the defense's sentencing case.[^19] Any and all actions that the client
can take that can be introduced in extenuation and mitigation should be
identified, coordinated and undertaken. A client who can demonstrate
that he is truly remorseful, has spared the child from going through any
public questioning, and who has taken steps to learn to deal with his
problem, will only assist himself when it comes to sentencing. This may
also help to mend fences within the family and lead to legitimate
support from the family at the time of trial.

**F. Proof Analysis**

Once the charges are preferred, one of the first steps the defense
counsel should take is to prepare a detailed proof analysis. If prepared
in a format that is workable for the defense counsel, the proof analysis
will assist him in all phases of the trial. While preparing for the
Article 32 hearing, it may help focus the line of attack. A proof
analysis can also assist the defense counsel in identifying the proper
discovery to request, assessing the weaknesses in the government case,
finding any drafting errors he can exploit, or even providing a tool
that can later be used to format the closing argument. The value of a
thorough and complete proof analysis will become apparent as he uses it
to prepare throughout every facet of the case.

# **G. Discovery Issues**

Discovery issues in child abuse cases can be complex and proper
discovery can produce voluminous amounts of records. The defense counsel
should take advantage of the military's liberal discovery standard.[^20]
To facilitate collection of all appropriate discovery, the defense
counsel should use a well-conceived and thorough discovery request. A
canned discovery request may be insufficient. It may even result in
untimely requests and ultimately in not receiving discovery. The request
should, to the best of counsel's ability, articulate a basis for the
requested records.[^21] Records that should be requested routinely
include, but are not limited to:

1.  All records from child protective services, to include any other
    records concerning the particular child making the allegations, as
    well as other children living in the same household;[^22]

2.  All records from Family Advocacy concerning this child and family,
    as well as records concerning the client;

3.  All records from Mental Health concerning this child and family as
    well as the client;

4.  All records kept by any mental health provider, social workers,
    therapists, counselors, nurses, or doctors, who have seen the
    child;[^23]

> 5\. Medical records of the child and any other children in the family.

6\. School records;

7\. Videotape interviews, whether by OSI agents or civilian agencies;

8.  Notes made by interviewers or observers of an interview of the
    child;

9.  Notice of all previous statements made by the victim or any
    witness;[^24]

10. Notice of all previous statements made by the accused; and,

11. A copy of any photographs taken of the injuries.

One of the easiest ways for the defense counsel to determine the
appropriate records to request is to construct a timeline regarding the
chronology of the disclosure. The timeline will assist him in
determining whether he has requested the right discovery, or what
records exist and what agency has them. For instance, if a child reports
to a school official that she has been abused by her neighbor, the child
is probably then interviewed by her teacher, the school psychologist or
guidance counselor, the civilian law enforcement agent and the child
protective services worker assigned to the case. In such a case, the
defense counsel should request a copy of the records, notes and reports
generated by all of these witnesses. He should begin the timeline with
the initial disclosure, continuing through trial, annotating each agency
and person that had contact with the child and the statements made by
the child. This will also assist the defense counsel in ensuring he has
received all records that are created during this process up through the
time of trial.

When the defense counsel receives the various records, it is important
he review them thoroughly. For example, it is important to determine if
the child is on any medication that may affect his or her ability to
perceive and recall. For instance, the medical records may indicate that
the child has been diagnosed with Attention Deficit Disorder (ADD) or
Attention Deficit Hyperactivity Disorder (ADHD). Children who have been
diagnosed with those disorders may have then been prescribed Ritalin or
some other drug to deal with this problem. The defense counsel should
carefully review the pharmacology of any medication and the interactions
of any medications given to the child before, during or after the time
the child disclosed the alleged offenses.[^25] The medical records may
also indicate that the child has been seen for a medical condition that
is relevant to the allegations. For instance, if the child had been
diagnosed with a sexually transmitted disease such as chlamydia that
predates the allegations (assuming the accused did not have access to
the child during this time), the defense counsel now has evidence that
the child may have been abused by someone else.[^26] If the initial
examination of the victim produced evidence of physical findings such as
hymeneal tears, notches, or clefts, there is research that indicates the
presence of these findings in nonabused girls.[^27] A review of the
medical records may show these findings were annotated at a time that
predates the allegations. Conversely, the lack of physical evidence can
be inconsistent with the child's allegations and the type of injuries
one would expect, depending on the timing of the disclosure.[^28] Family
advocacy or mental health records may indicate a long-standing problem
with the child that would also explain the allegations or provide a
motive for the child to fabricate. The defense counsel should also check
the parents' medical records for any of the child's records that may
have been misfiled.

# **H. Expert Assistance**

It is difficult to imagine a child abuse case, whether it involves
physical or sexual abuse, where the defense would not be aided by the
assistance of an expert.[^29] An expert can provide assistance in a
number of ways. As stated in *United States v. Turner,* [^30]

> To assure that indigent defendants will not be at a disadvantage in
> trials where expert testimony is central to the outcome, the Supreme
> Court has ruled that a defendant must be furnished expert assistance
> in preparing his defense. . . . An expert may be of assistance to the
> defense in two ways. The first is as a witness to testify at trial. .
> . . An expert also may be of assistance to the defense as a consultant
> to advise the accused and his counsel as to the strength of the
> government case and suggest questions to be asked of prosecution
> witnesses, evidence to be offered by the defense, and arguments to be
> made. [^31]

In a case involving physical allegations, the defense counsel should
have a dedicated defense expert review the evidence. This expert can
assist the defense with cross-examination of the government's expert,
provide alternative explanations for the physical findings, and may
assist in ensuring the government expert's testimony is accurate. The
expert can also provide assistance in evaluating the evidence to
determine whether the parental-discipline defense is available. In cases
involving parental-discipline, the defense must show three things: the
appropriate person administered the discipline or force, for a proper
purpose, with a reasonable amount of force.[^32] Experts can provide
assistance in determining whether the facts of the case, and those
disclosed by the client, will satisfy the test and how best to present
the case. They may also be required to provide expert testimony on these
issues.

## I. Expert Consultant

A good rule of thumb for the defense counsel is to request that the
expert be appointed as a consultant so that he and the expert will have
the benefit of the attorney-client privilege.[^33] In *Turner*[^34], the
court articulated how the defense counsel can benefit from the privilege
given to expert consultants.

> In performing this function \[as a consultant\], the expert often will
> receive confidential communications from the accused and his counsel;
> and he may have occasion to learn about the tactics the defense plans
> to employ. If the expert consultant were free to disclose such
> information to the prosecutor prior to trial, the defense counsel
> would be placed at a great disadvantage; and, indeed, he might
> hesitate to consult with the expert. The result would be impairment of
> the accused's right to counsel, because his attorney would be
> inhibited in the performance of his duties and unable fully to utilize
> the assistance contemplated by *Ake*.[^35]

The defense counsel should be aware that in order to obtain the benefit
of the attorney-client privilege, the consultant must be either employed
by the accused to assist him or be appointed to provide such
assistance.[^36] According to Mil. R. Evid. 502, "representative" is
specifically defined as ". . . a person employed by or assigned to
assist a lawyer in providing professional legal services."[^37] In
*United States v. Toledo*,[^38] the defense counsel asked a clinical
psychologist to examine his client "off the record." The psychologist
was later called as a government witness to testify as to his opinion
regarding the accused's character for truthfulness. The defense objected
and asserted a privilege. The Court of Military Appeals held no
privilege existed because the defense had not used the proper procedure
for making the psychologist a representative of the lawyer.

> Had the defense procured medical assistance for the preparation of its
> defense at its own expense, we would have held that communications
> between appellant and that expert were within the attorney-client
> relationship, at least unless a mental-responsibility defense was
> presented. . . By the same token, a servicemember has no right simply
> to help himself to government experts and bring them into the
> attorney-client relationship, bypassing the proper appointing
> authorities.[^39]

## J. Making an Adequate Request for Assistance

As with the discovery request, the request for expert assistance must be
specific regarding the issues that require expert assistance. In *United
States v. Garries*,[^40] the Court of Military Appeals held that "When
an accused applies for the employment of an expert, he must demonstrate
the necessity for the services."[^41] The court further held that it
would be inappropriate for the military judge to hold an *ex parte*
hearing in order to protect disclosure of defense theories when
requesting expert assistance. "Use of an *ex parte* hearing to obtain
expert services would rarely be appropriate in the military context
because funding must be provided by the convening authority and such a
procedure would deprive the Government of the opportunity to consider
and arrange alternatives for the requested expert services."[^42] In
*United States v. Tornoswski*,[^43] the Air Force Court of Military
Review addressed the difficulty in articulating a need for expert
assistance. Citing *Moore v. Kemp*,[^44] the Court stated:

> We recognize that the defense counsel may be unfamiliar with the
> specific scientific theories implicated in a case and therefore cannot
> be expected to provide the court with detailed analysis of the
> assistance an appointed expert might provide. We do believe, however,
> that the defense counsel is obligated to inform himself about the
> specific scientific area in question and to provide the court with as
> much information as possible concerning the usefulness of the
> requested expert to defense's case.[^45]

In *United States v. Gonzalez*,[^46] the Court of Military Appeals
established a three-prong test the defense must meet in order to show
necessity for expert assistance. "There are three aspects of showing
necessity. First, why the expert assistance is needed. Second, what
would the expert assistance accomplish for the accused. Third, why is
the defense counsel unable to gather and present the evidence that the
expert assistant would be able to develop."[^47] Thus, to the best of
his ability, the defense counsel must establish in the request the
necessity of expert assistance. Additionally, the defense is not
entitled to a specific expert.[^48] However, this does not suggest that
it is permissible for the government to provide the defense with an
expert who is less qualified than the government expert[^49] or one who
is unqualified to provide competent assistance to the defense.[^50]

When the defense counsel requests any expert, it is always helpful if he
has done the legwork for the government to find a qualified expert to
recommend to the convening authority. The defense counsel should avoid
any potential conflict issues by recommending someone other than a
member assigned to the same medical group as the government expert. He
should discover the qualifications of the government expert witness and
use those as a minimum for the defense requested expert.[^51]

It is important to remain diligent in defense efforts to obtain expert
assistance. The defense counsel should receive a written response to the
request. A motion to compel the production of an expert should follow
any denial of the request.[^52] If the defense counsel believes the
proposed expert is not competent to provide adequate assistance, he
should begin to address the problem by thoroughly interviewing the
proposed expert. Often the trial counsel may not provide the proposed
expert adequate information regarding what the defense counsel requires
and expects from the expert. Once the defense counsel explains this to
the expert, the expert can then tell him whether he believes he has the
appropriate qualifications. Before filing a motion to compel, it may be
useful for the defense counsel to attempt to work with trial counsel to
find another qualified expert.

In the event the defense believes the proposed expert is inadequate and
if the government refuses to approve another expert, the defense must
then show that the expert is not qualified. In *United States v.
Ndanyi*,[^53] the Court of Military Appeals held that the defense did
not make an adequate showing that the experts the government offered to
provide were inadequate. "\[A\]bsent a showing by appellant at trial
that his case was unusual, i.e., the proffered scientific experts . . .
were unqualified, incompetent, partial, or unavailable, his motion for
government-funded expert assistance was properly denied."[^54]

The defense counsel should include in his request an appropriate number
of days of preparation time with his expert prior to trial. He should
also seek to have the consultant present throughout the trial, including
sentencing, if the government intends to put on expert testimony. The
pretrial preparation with the expert should include a records review
prior to the expert's arrival at trial, as well as several days to
assist in interviewing the relevant witnesses prior to trial. The
relevant witnesses include the government expert witness, the alleged
victim, and those witnesses who had initial contact with the child upon
disclosure. Generally, the expert does not need to be present for the
interview of all the witnesses, provided the defense counsel gives the
expert a good summary of the peripheral witnesses.

## K. Potential Issues Requiring Expert Assistance

Issues that arise in a case of sexual abuse allegations that may require
the assistance of a psychologist/psychiatrist, preferably one with
forensic experience,[^55] include:

a.  delayed reporting by the victim;

b.  evaluation of cognitive abilities, development of the child, memory
    capacity;[^56]

c.  analysis of statements by the child for age appropriate vocabulary
    and whether the child displays age appropriate behavior;[^57]

d.  effects of family problems including significance of a pending
    divorce and custody battle;

e.  whether the child is susceptible to suggestion or influence by
    authority figures; [^58]

f.  whether the statements have been tainted by contact with
    investigators, therapists, doctors, or prosecutors;[^59]

g.  forensic evaluation of the allegations of abuse;[^60]

h.  occurrence of fabrication of allegations by children;[^61]

i.  evaluation of any diagnosis for personality disorders, adjustment
    disorders, or psychological problems which might indicate an
    inability to accurately perceive, recall or report;

j.  effect of use of anatomically correct dolls by government expert or
    initial interviewer;[^62] and

k.  assistance in preparation of how to interview and prepare
    cross-examination of the child witness.

## L. Expert Contact with the Accused -- Setting The Boundaries

Once the defense counsel has an expert consultant, he must decide how
much contact the expert should have with the client. This may depend in
large part on how the defense counsel plans to use his expert. Factors
the defense counsel should consider include whether the expert
consultant will testify during the trial. If so, the defense counsel
should be aware of the limits of what the consultant must disclose. In
*United States v. Turner*,[^63] trial counsel interviewed the defense
expert prior to trial. The Court of Military Appeals held this was error
because the defense expert had not been declared as an expert witness
prior to trial. In footnote 3, the Court noted the safeguards the
defense would have even if they had declared him an expert witness at
some point in the trial.

> If the defense counsel also planned to use \[defense expert\] as a
> witness, trial counsel could properly have interviewed him as to the
> matters about which he could testify. However, in that event, the
> expert witness should have been advised carefully that he could not
> reveal any discussions with the accused or with the defense counsel,
> or impart information to trial counsel which was not already available
> to him. Moreover, the defense counsel could properly have insisted on
> being present during the interview of his own expert witness in order
> to assure that trial counsel did not stray into forbidden
> territory.[^64]

In *United States v. Mansfield*,[^65] the Court of Military Appeals
specifically held that

> \[W\]hen such experts are called as a witness on behalf of an accused
> and the witness has relied upon statements of the accused in
> formulating an opinion, the attorney-client privilege terminates with
> respect to those matters placed in issue by the expert's testimony.
> Further, any expert who offers a testimonial opinion is subject, at
> the request of the party-opponent "to disclose the underlying facts or
> data on cross-examination."[^66]

Thus, examination of the accused and presentation of evidence on the
issue is another factor to be considered. If the expert does examine the
accused, as articulated in the request for expert assistance, the
defense counsel should know the limits of what the expert must disclose
if he later testifies. An alternative to using the expert consultant to
examine the accused would simply be to request a sanity board.[^67] If
the defense counsel has done this, and/or intends to contest the
findings of the sanity board to put forward a lack of mental
responsibility defense, he must be aware of the exposure of the client's
statements when the expert testifies.

# **M. Article 32 Strategies**

The defense counsel should prepare extensively for the Article 32
hearing. The Article 32 hearing is often where the defense counsel lays
the groundwork for cross-examination at trial of the alleged victim.
This cannot be properly done unless the defense counsel has done his
homework first. The hearing will also give him a chance to evaluate how
well the child testifies. This will help him to determine his strategy
at trial and whether the defense counsel should litigate or pursue other
options either to avoid trial, or obtain a favorable pretrial agreement
for his client.

When preparing for the hearing, a good source of information may be the
primary caregiver. The defense counsel is looking for indications the
child has a problem distinguishing between fantasy and reality, has an
overactive imagination, tells lies as a way to get attention, is
melodramatic or histrionic, has ADD/ADHD, is physically active and
always has bruises, or is difficult to control. Presenting the testimony
at the Article 32 that calls into question the reliability of the
allegations may result in the government taking a second look at whether
the case should be referred to trial. It may also put the defense
counsel in a position to obtain an alternative disposition for the
client. While the "conventional wisdom" may be to play his cards close
to the vest, the astute defense counsel will not overlook any
opportunities to keep his client out of the courtroom. If the child has
serious problems, like lying or distinguishing between fantasy and
reality, or if other plausible explanations for injuries exist, bringing
these problems to the attention of the prosecution early on may
strengthen the defense position with regard to alternative disposition.

The Article 32 hearing also provides the defense counsel an opportunity
to interview the child in person. When interviewing the child, he should
avoid suggesting answers to the child or contributing to the taint of
the child's testimony by asking leading questions.[^68] He should use
the interview to gather as much background information as he can about
the child and her history with the client, before and after disclosure.
The defense counsel should inquire whether the child keeps a journal,
diary, or has written anything about the incidents, either before or
after the allegations. The child's writings may contain information that
is invaluable to the defense.[^69]

If the victim is going to testify, the defense counsel should request a
verbatim transcript. While there is always the concern that the victim
may be unavailable at trial, having a witness declared unavailable is a
high standard.[^70] A verbatim record is important for the defense
counsel because it will help him to develop the inconsistencies in the
child's testimony, as well as get the child committed to areas he hopes
to use as impeachment at trial. The Investigating Officer (IO) may not
recognize the value of areas the defense counsel is examining the
witness about and may not incorporate the information into a summary.
Because the IO is not obligated to prepare a summary[^71] there is
essentially no relief for a defense counsel when this occurs.[^72] Thus,
a verbatim transcript would best ensure that the lines of questioning
pursued by the defense counsel are preserved for trial.

If the IO determines that the child is unavailable for the hearing, the
defense counsel should make sure the IO has performed the correct
analysis. In *United States* *v. Marrie*, [^73] the Air Force Court of
Military Review held that R.C.M. 405(g)(1)(A)[^74] does not establish a
*per se* rule of unavailability if the witness is located more than 100
miles from the site of the hearing.[^75] The IO is required to perform a
balancing test that weighs the necessity of the witness's testimony
against the expense and trouble in producing the witness.[^76] In order
to preserve the right of personal attendance at an Article 32 hearing
the defense counsel must move to take the witness's testimony by
deposition. [^77] Often, the child is in the local area, but doesn't
want to testify. While the IO cannot compel the witness to attend the
hearing, the defense counsel should not agree to a finding of
unavailability unless the government has taken sufficient steps to
procure the testimony.[^78] If the child is legitimately unavailable, or
the client has already decided to enter a plea and attempt to negotiate
a pretrial agreement with the convening authority, the defense counsel
should consider waiving the Article 32 hearing. There is nothing for him
to gain by going through the motions of an Article 32. Waiving the
hearing may be good extenuation and mitigation at trial if the defense
can argue the client waived the hearing in an effort to ease the burden
of the ordeal on the child. If the child testifies at the hearing, the
defense counsel should object to the child adopting any prior statements
as part of the Article 32 testimony[^79] unless the statements are
inconsistent and consideration by the IO will favor the defense.

Matters that should be presented by the defense at the Article 32
hearing include any and all "atta-boy" papers that the client may have.
This is especially important in a "close" case. Generally, the client
should not testify at the Article 32 hearing. The risk of committing the
client to testimony that is sworn and available to the government,
months prior to trial, allows the government to work on discrediting the
client. It also provides the trial counsel with a rare opportunity to
actually prepare a cross-examination of the accused based on this prior
statement. If he wants to make a statement, the rules provide for an
unsworn statement[^80] and it may not be a bad idea to have the client
make a generalized statement denying any wrongdoing.

The responsibilities of the defense counsel do not end after the report
is served on the accused. He must file his objections in a timely
manner[^81] or the issues are considered waived.[^82] The defense
counsel should ensure that they have carefully read the report, reviewed
the summary of testimony, and filed any written objections in a timely
fashion.

### **III. TRIAL**

## A. Motions To Compel

Motion practice in a case involving child abuse allegations may be
complex and require the defense counsel to determine which motions he
intends to file well in advance of the trial. Assuming witness and
discovery requests are made in a timely manner,[^83] the defense counsel
should file a motion to compel as soon as he has notice from the
prosecution that the government will not turn over certain documents,
produce an expert or other witnesses.[^84]

In *United States v. Reece*,[^85] the Court of Military Appeals held
that the military judge abused his discretion by failing, at a minimum,
to review the requested records *in camera*. The Court based its ruling
on its finding that "Military law provides a much more direct and
generally broader means of discovery by an accused than is normally
available to him in civilian courts."[^86] The Court went on to further
hold that "The Military Rules of Evidence establish 'a low threshold of
relevance' . . . ."[^87]

In *United States v. Tangpuz*,[^88] the Court of Military Appeals
articulated several factors to be considered when determining whether to
produce a witness requested by the defense.

> The Court has never fashioned an inelastic rule to determine whether
> an accused is entitled to the personal attendance of a witness. It
> has, however, identified some relevant factors, such as: the issues
> involved in the case and the importance of the requested witness as to
> those issues; whether the witness is desired on the merits or the
> sentencing portion of the trial; whether the witness' testimony would
> be merely cumulative; and the availability of alternatives to the
> personal appearance of the witness, such as deposition,
> interrogatories or previous testimony. . . . If adverse to the
> accused, the ruling is subject to review and reversal if there has
> been an abuse of discretion.[^89]

The Court went on to state that all parties should recognize the need
for the accused to have equal access to witnesses and the use of
compulsory power. Citing *United States v. Manos,* [^90] the court
stated

> We are, however, concerned with impressing on all concerned the
> undoubted right of the accused to secure the attendance of witnesses
> in his own behalf; the need for seriously considering the request; and
> taking necessary measures to comply therewith if such can be done
> without manifest injury to the service. That is what we meant in
> *Sweeney,*[^91] in speaking of weighing the relative responsibility of
> the parties against the equities of the situation.[^92]

Failure to request witnesses or experts in a timely fashion may result
in loss of these witnesses.[^93] Filing the motion early may help to
resolve these issues prior to the trial and avoid undue delay. If not,
the defense counsel may face the prospect of a delay in the proceedings
because the documents in question may be difficult to obtain quickly,
witnesses become unavailable, and experts make other commitments.

## B. Motions for a New Article 32 Hearing

One motion for the defense counsel to consider is a motion for a new
Article 32 hearing.[^94] This will be important if the child witness was
not produced at the hearing and the basis for finding him/her
unavailable is insufficient.[^95] Another issue may be that the IO
improperly considered statements or alternatives to evidence over
defense objection.[^96] The defense counsel should, however, pay special
attention to the axiom, "be careful what you ask for, you just may get
it." He should carefully weigh the benefit of another hearing with
consideration as to how well his client is holding up in the process. If
an extended delay will result in further deterioration of the client,
the benefits may be outweighed by the risks.

## C. Motions in Limine -- Residual Hearsay Issues

In cases dealing with child abuse allegations, the prosecution may seek
to introduce hearsay statements of the victim. Motions in limine may
prevent the prosecution from doing this and allow the defense counsel to
try his case. One of the more common avenues that the prosecution
attempts to take in admitting out of court statements is M.R.E.
803(24).[^97] The standard for admissibility of statements under the
residual hearsay rules is the United States Supreme Court decision in
*Idaho v. Wright*.[^98] In *Wright*, The Supreme Court held that a
statement offered under the residual hearsay exception should only be
admitted "if it bears adequate 'indicia of reliability.'"[^99] This
requirement can only be met "by a showing of particularized guarantees
of trustworthiness."[^100] To determine whether these guarantees exist,
the court must look at "the totality of circumstances . . . \[t\]he only
relevant circumstances, however are 'those that surround the making of
the statement and that render the declarant particularly worthy of
belief.'"[^101]

In *United States v. Kelley*,[^102] the Court of Appeals for the Armed
Forces[^103] addressed the issue of admissibility of statements offered
under the residual hearsay exception. "The residual-hearsay rule sets
out three requirements for admissibility: (1) materiality, (2)
necessity, and (3) reliability."[^104] The Court went on to state that
the exception should be rarely used, but that in cases involving child
abuse allegations, the necessity prong is more liberally construed. The
Court explained that:

> Federal courts have recognized that "one such exceptional circumstance
> generally exists when a child abuse victim relates to an adult the
> details of the abusive events." The more liberal approach in child
> abuse cases extends to the "necessity" requirement. Even though
> residual hearsay may be "somewhat cumulative, it may be important in
> evaluating other evidence and arriving at the truth so that the 'more
> probative' requirement can not be interpreted with cast iron
> rigidity."[^105]

Under this standard, it appears that the best line of attack for the
defense counsel will be the reliability prong of the test. If the
statement is made to a law enforcement agent, the defense counsel can
attack the reliability of the statement based on this fact.[^106] In
*United States v. Hines*,[^107] the Court of Military Appeals addressed
the issue of reliability of statements of unavailable witnesses made to
law enforcement agents and whether the statements would satisfy the
Confrontation Clause.

> Our concern . . . is whether *ex parte* statements to law enforcement
> officers are obtained with such a degree of bipartisanship that an
> accused cannot reasonably contend that the purposes of
> cross-examination have not been served? . . . Since \[the agent's\]
> questioning is proffered as a replacement for cross-examination, was
> it equivalent to cross-examination? In other words, was \[the agent\]
> as zealous at uncovering the weaknesses in the prosecution's case . .
> . as defense counsel would have been? Was he intent on exploring all
> possibilities of reasonable doubt as to guilt, or was he, in effect,
> content with making out a *prima facie* case? On this record we think
> that the investigative process was not equivalent to the judicial
> process, and we would not ordinarily expect it to be. Hence we do not
> believe that \[the agent's\] examination of the declarants by itself
> comported with the substance of the constitutional protection.[^108]

## D. Motions in Limine -- Uncharged Misconduct

In light of M.R.E.s 413[^109] and 414,[^110] it may be difficult for the
defense counsel to limit uncharged misconduct of sexual assaults by his
client. As his first line of attack, the defense counsel should consider
challenging the constitutionality of these rules of evidence. If this
fails, he should ask the judge to perform an M.R.E. 403[^111] balancing
test. Of course, if the government intends to offer this evidence, make
sure they have complied with the notice requirements. If the military
judge allows the evidence to be introduced, the defense counsel should
seek a limiting instruction regarding how the members can use the
evidence.[^112]

In dealing with uncharged misconduct unrelated to sexual assaults, the
defense counsel should move to limit the government's use of the
evidence. In determining whether uncharged misconduct is admissible, the
courts have established a three-prong test. First, the quality of the
evidence must be assessed for its ability to prove the extrinsic
offenses; second, is the evidence relevant to prove something other than
a predisposition to commit crimes; third, regardless of the findings
relating to the first two prongs, a balancing test must be performed
under M.R.E. 403.[^113] In *United States v. Franklin*,[^114] the Court
of Military Appeals addressed the issue of whether uncharged misconduct
offered to prove intent was properly admitted. The Court recognized the
inherent difficulty in distinguishing "between the intent to do an act
and the predisposition to do it."[^115] In *United States v.
Gamble*,[^116] the Court of Military Appeals reversed a conviction of
rape because the military judge had erroneously admitted uncharged
misconduct. The issue in the case was consent of the victim. The
prosecution offered evidence of another assault as evidence of intent,
plan, preparation and absence of mistake. The Court, quoting from the
Military Rules of Evidence Manual,[^117] stated:

> It is common for the prosecution to use short-hand expressions like
> modus operandi, common plan or scheme, etc., to account for an offer
> of evidence of other acts. A trial judge must be certain to make the
> prosecution state exactly what issue it is trying to prove in order to
> see whether the evidence is probative, how probative it is, and
> whether it should be admitted in light of the other evidence in the
> case and the ever present danger of prejudice.[^118]

While the advent of the new rules of military evidence relating to
uncharged misconduct in these kinds of cases may make it more difficult
to keep the evidence from the members, the defense counsel should still
make every effort and use every avenue to prevent it.

## E. Dealing with Statements Offered under Medical Diagnosis Exception

Another avenue prosecutors will commonly use to have out of court
statements of the child admitted is the medical diagnosis exception to
M.R.E. 803.[^119] Statements offered under this exception must meet two
requirements. First the person making the statement must have "some
expectation of promoting his well-being and thus an incentive to be
truthful. Second, the statement must be made by a declarant for the
purpose of medical diagnosis and treatment."[^120] In *United States v.
Siroky,*[^121] the Court of Appeals for the Armed Forces affirmed the
Air Force Court of Criminal Appeals finding that a child's testimony did
not meet the test for admissibility. The Court found that there was
insufficient evidence in the record to indicate that the 2 1/2-year-old
child had an expectation of treatment when she visited the
psychotherapist.

The defense counsel should be alert to situations in which the
statements being offered were taken in conjunction with investigations
rather than treatment. In *United States v. Faciane*,[^122] the Court of
Military Appeals reversed a conviction of indecent acts because
statements by the alleged victim were improperly admitted under the
medical diagnosis exception. The Court found that there was insufficient
evidence to meet the second prong of the test when the child was
interviewed by a child protective services worker at the hospital.

> Although the child may have associated a hospital with treatment and
> may have known that she was in a hospital when she talked to Mrs.
> Thorton, there is no evidence indicating that the child knew that her
> conversation "with a lady" in playroom surroundings was in any way
> related to medical diagnosis or treatment. Mrs. Thorton testified that
> she did not present herself as a doctor or do anything medical. There
> is no evidence that Mrs. Thorton was dressed or otherwise identified
> as a medical professional. The interview took place in a room filled
> with toys. There is nothing suggesting that the child made the
> statements with the expectation that if she would be truthful, she
> would be helped.[^123]

The Court of Military Appeals set out five foundational requirements
that may provide additional grounds for the defense to attack
admissibility of these statement in *United States v. Quigley*.[^124] In
*Quigley,* the Court found that:

> \[T\]he foundational facts required by M.R.E. 803(4) are that a
> statement (1) was made; (2) near the pivotal time of the events; (3)
> to an individual who could render medical diagnosis or treatment; (4)
> by an individual who had an expectation of receiving treatment from
> the recipient of the statement; and (5) refers to the person's mental
> and emotional condition.[^125]

The defense counsel should also be familiar with who was present at the
interview and the circumstances surrounding the taking of the
statements. In *United States v. Armstrong*,[^126] the court reversed a
conviction for sodomy that was based on statements made to trial counsel
in the presence of a psychologist. The Court found that the statements
did not fit the exception because they were made to the trial counsel
for purposes of preparing for trial. The Court recognized that the
relationship between the witness and the psychologist who was present
during the interview was for an appropriate purpose and the therapeutic
value of all the statements made to the psychologist. "However, even
untrue statements contribute to the psychologist's understanding of his
or her patient's problems; thus the mere fact that a patient made a
statement to a psychologist does not necessarily make the statement
admissible under this rule."[^127] In *United States v. Henry*,[^128]
the Army Court of Criminal Appeals[^129] held that statements of the
alleged victim were not made for medical diagnosis "but rather the
statements were made for the purpose of facilitating the collection of
evidence relevant to the criminal investigation of her rape
allegation."[^130] In *Henry* the investigators had arranged for the
examination after they interviewed the witness. The witness testified
that she did not request the examination and her understanding of the
reason for the exam was to determine if she had been raped.[^131]

Cases involving child abuse can raise difficult evidentiary issues. The
defense counsel must be vigilant and aggressive to ensure the government
operates within, and the courts properly apply, the evidentiary rules.
Recently in *United States v. Knox*,[^132] the Navy-Marine Corps Court
of Criminal Appeals[^133] reversed a conviction of rape and forcible
sodomy with a child under age 16 in part because of the improper
admission of hearsay testimony. At the conclusion of the opinion the
Court cautioned trial practitioners about circumvention of the military
rules of evidence in the name of justice.

> Optimally, every person who criminally abuses a child, physically or
> sexually, would be caught, convicted, and punished appropriately for
> the offense. As a result, the certainty of detection, conviction, and
> punishment would act as a strong deterrent, protecting children from
> such abuse. But the rules of evidence have been developed
> painstakingly over centuries to ensure, to the extent it is humanly
> possible, the reliability of convictions. The rules of evidence cannot
> be overlooked, set aside, or circumvented in the zeal to prosecute any
> crime, no matter how heinous. In a court of law the ends never justify
> the means. It is our responsibility to overturn the results of
> well-meaning efforts to use manners of proof which do not meet the
> standards of admissibility established by the rules of evidence
> regardless of the nature of the offense. As recently stated by the
> U.S. Supreme Court: "Courts must be sensitive to the difficulties
> attendant upon the prosecution of alleged child abusers. In almost all
> cases a youth is the prosecution's only eye witness. But 'this Court
> cannot alter evidentiary rules merely because litigants might prefer
> different rules in a particular class of cases.'"[^134]

## F. Developing a Theme and Theory

Developing a theme and theory for the case is critical to defense
counsel in cases involving allegations of abuse. As may often be the
case in dealing with child abuse allegations, "The case . . .\[is\] . .
. in essence, the damning accusation of a sympathetic victim cloaked in
the presumptive innocence of tender years."[^135] Defense counsel need
to overcome this presumption by providing the members with a plausible
explanation, other than the accused's guilt, to explain the allegations
or convince the members the testimony is unreliable. In *United States
v. Woolheater*,[^136] the Court of Military Appeals discussed theme and
theory in defense cases and held that the military judge improperly
limited the defense from introducing evidence that would have indicated
someone else was responsible for the charged offense. The Court
explained how and why the defense develops a case theory and discussed
how the defense counsel, in *Woolheater*, attempted to establish the
evidence to support the case theory.

> In setting up a defense strategy for a case, counsel adopts a coherent
> theme and theory under which to present the case. The theme and theory
> usually take into consideration the strengths and weaknesses of the
> evidence that is both favorable and unfavorable to the accused. The
> defense theory of the case can be most helpful in explaining the
> weaknesses so as to be consistent with all or most of the evidence
> presented. In this case, the defense counsel was persistent in the
> defense theory that Shaner committed the arson. The defense also
> recognized that the most unfavorable and damaging evidence to
> appellant was his voluntary and detailed confession describing many of
> the particulars surrounding the cause of the fire. The defense
> attempted to negate or lessen the impact of appellant's confession by
> introducing psychiatric evidence of a plausible explanation for the
> confession. Dr. Parker presented evidence explaining appellant's
> reaction to stressful situations such as a series of NIS
> interrogations. . . . Attacking the reliability of the confession was
> the first prong of a two-pronged defense strategy. Even though the
> confession was detailed, voluntary, and properly before the finders of
> fact, the members were still free to determine the reliability of that
> confession. . . . The second prong was to present plausible evidence
> that another individual, Shaner, had the motive, knowledge, and
> opportunity to commit the crime.[^137]

As *Woolheater*[^138] shows, it is crucial that the defense theory and
theme are clear. Thus the defense counsel must start to explain the
theory of the case to the members at the earliest possible time.

When developing a theme and theory the defense counsel may want to
consider other possibilities besides the oft-used "the child is
lying."[^139] For instance, the defense counsel may be able to argue
that the allegations are a cry for attention because the parents were so
caught up in their own problems that they have ignored this child for
months. This may be more plausible if the parents are having serious
marital problems. Or, the defense counsel may show the jury that the
child has a history of problems distinguishing between dreams and
reality or is on some type of medication that produces bizarre dreams
which the child has confused with reality. From the beginning of the
trial, the defense counsel must show that he has a plausible theory,
that the evidence will support his theory, and that the theory raises
reasonable doubt regarding the allegations.

## G. Voir Dire/Challenging Members

While voir dire can be difficult to handle effectively, if done
correctly, it can be the "beginning of a beautiful friendship"[^140]
between the defense counsel and the jury. The purpose of voir dire is to
"obtain information for the intelligent exercise of challenges."[^141]
R.C.M. 912 establishes fourteen separate grounds for challenge against a
military member.[^142] "Military judges must follow the liberal-grant
mandate in ruling on challenges for cause."[^143] In *United States v.
Daulton*,[^144] a case involving indecent acts with a child, the Court
of Appeals for the Armed Forces reversed a conviction in part because
the military judge abused his discretion when he denied a challenge for
cause against a court member whose sister and mother had been sexually
abused. The Court did not rule that members are *per se* disqualified
because they, or someone close to them, has been a victim of a similar
crime, unless they have been victims of similar violent or traumatic
crimes.[^145] Instead, the Court's decision was based on implied bias.
"Implied bias exists when most people in the same position would be
prejudiced. Implied bias is not viewed through the eyes of the military
judge or the court members, but through the eyes of the public."[^146]
Interestingly, the Court held that the judge did not abuse his
discretion when he denied a challenge against a medical doctor with some
experience dealing with child abuse.[^147]

The defense counsel should listen carefully to the members' responses.
He should also pay attention to the body language and nonverbal cues
members may be giving. While the member may be answering the questions
in an acceptable manner, his body language may indicate a complete
dislike for the subject or the accused, which may evidence an
inelasticity for findings or sentencing. This must be explored
completely in individual voir dire, which should enable the defense
counsel to establish a sufficient basis for a challenge for cause.[^148]

Voir dire will requires the defense counsel to pay careful attention to
each question asked. One area to consider further questioning may be
whether any member knows someone who is a victim or accused of any type
of sexual misconduct or assault. Another area the defense counsel may
want to address in voir dire concerns members' attitudes regarding
whether children lie about these types of allegations. The attorney
should ask whether members will consider that children may often be
easily influenced and incorporate into the own memory information that
they get from the therapists, law enforcement agents, parents, or trial
counsel who question them about the incidents.[^149] Selecting a fair
and impartial panel is crucial, and a defense counsel must be vigilant
in his efforts to ensure he has ferreted out any members who should be
challenged.[^150]

## H. Opening Statement

In a case involving child abuse, opening statements are critical to the
defense. It is easy to imagine the trial counsel's opening statement as
it will most likely include a grisly description of the testimony that
the trial counsel hopes the child will provide. This type of opening
statement can be very effective, dramatic and the members may agree
early on that the accused is really a monster sitting at the table with
the defense counsel. It is therefore important that the defense counsel
diffuse the statement from the beginning. Whatever theory the defense
counsel has to explain why the allegations are untrue, he should lay it
out for the members and advise them what evidence to look for in support
of this theory. This does not mean that the defense counsel should make
promises that he can't keep. It is important to review the anticipated
evidence to ascertain what he realistically expects the members to hear
in order to properly frame the opening statement.

####  {#section-1 .unnumbered}

####  Cross-Examination of the Victim

As with all cross-examinations, the only way to do a truly effective job
is to prepare, prepare, prepare. Child witnesses present unique issues
to the defense counsel, both during the interview process and in
cross-examination.[^151] To prepare the cross-examination, the defense
counsel should know each and every statement that the child has made, to
whom and when, so that he can take full advantage of prior inconsistent
statements.[^152] Constructing a timeline may also be an effective
organizational tool when preparing cross-examination.[^153] Another
useful approach is to do a small chart containing all of the previous
statements made by child that the defense counsel can keep at the desk.
[^154] The defense counsel could break the statements into the different
allegations. As the child testifies on direct, he should then write down
the statements that are inconsistent with earlier statements. Pointing
out the inconsistencies may be more difficult with the child because
they can easily become confused and simply may not remember making
previous statements. The defense counsel should work with the military
judge and trial counsel to determine the best way to present
inconsistent statements to the members. If the inconsistent statements
are contained in a videotaped interview, this may be easier to do as the
statements can be played for the child in court.[^155] The important
thing is that the defense counsel shows the members the relevant
inconsistencies.

The defense counsel should determine the approach he intends to take in
cross-examination. For older children, such as teenagers, he may be able
to treat them as he would an adult witness. To the extent that he can,
the defense counsel should examine a preteen child as he would an adult
except that he simplifies his vocabulary. Trial counsel will most likely
present the child in a manner that emphasizes the youth and innocence of
the child.[^156] The defense counsel should therefore talk to the child
like an adult to the extent possible while keeping the examination as
emotionless as possible. If the defense counsel becomes visibly agitated
or angry, the child may feel threatened and shut down. Or the defense
counsel may upset the members and they may shut down. Either way, the
defense counsel loses. The defense counsel should be firm in the
questioning but not argumentative. The defense counsel will have hard
questions to ask but should do it in a manner that does not antagonize
the child, members or military judge.

Cross-examination of a child can be both challenging and intimidating to
the defense counsel. Children are unpredictable witnesses and there is a
danger that the defense counsel may actually bolster the child's
credibility during cross-examination. The defense counsel must be
disciplined and prepared. It does not have to be a long examination, nor
does it have to be an aggressive one. Like air power, the key to a good
cross-examination of a child is flexibility. The defense counsel should
remember to ask only the questions that he needs for the closing
argument. Once defense counsel obtains the information he needs, end the
examination. It is rare that the defense counsel will destroy the
credibility of a child through cross-examination. That will come from
the other evidence the defense counsel has that supports why the
allegations are unreliable.

## J. Confrontation Issues

In child abuse cases, the defense counsel may be presented with
situations where the government seeks to have the child testify behind a
barrier, by closed circuit television, or in some other manner that
prevents the child from actually "facing" the accused. The starting
point for the defense counsel is whether the government can establish
the necessary prerequisites.

> \[T\]he confrontation Clause \[is\] satisfied in cases involving child
> victims where: (1) there \[is\] a case-specific finding that testimony
> by the child in the presence of the defendant would cause the child to
> suffer serious emotional distress such that the child could not
> reasonably communicate; (2) the impact on the child \[is\] more than
> *de minimis*; (3) the child testifie\[s\] via one-way closed-circuit
> television, enabling the judge, jury, and the defendant to observe the
> child's demeanor during testimony; and (4) the child \[is\] subject to
> full cross-examination.[^157]

In the two recent cases of *United States v. Longstreath*[^158] and
*United States v. Daulton,*[^159] the Court of Appeals for the Armed
Forces declined to find that the Comprehensive Crime Control Act of
1990[^160] applied to trials by courts-martial. The Act authorizes
federal courts to order two-way closed-circuit television in cases
involving child-abuse. This suggests that the Court is unwilling to
establish a "bright line" rule regarding how this situation can be
handled during a court-martial. When this issue arises at trial, the
defense counsel should familiarize himself with the current state of the
law in order to handle the situation appropriately at trial, as well as
create a record for appeal.[^161]

#### Expert Witness Testimony

Equally challenging to the defense counsel in these kinds of cases is
handling cross-examination of the government expert witnesses, as well
as the decision regarding whether he will put on expert testimony. "Use
of expert testimony in these child sexual abuse cases is another 'legal
thicket' for the expert testimony is extremely complex and often
novel."[^162] The permissible scope of expert testimony in child sexual
abuse cases was defined in *United States v. Birdsall*.[^163] Citing a
case from the Eighth Circuit,[^164] the Court of Appeals for the Armed
Forces had this to say regarding the parameters of expert testimony.

> In the context of a child sexual abuse case, a qualified expert can
> inform the jury of characteristics in sexually abused children and
> describe the characteristics the alleged victim exhibits. A doctor who
> examines the victim may repeat the victim's statements identifying the
> abuser as a family member if the victim was properly motivated to
> ensure the statements' trustworthiness. A doctor can also summarize
> the medical evidence and express an opinion that the evidence is
> consistent or inconsistent with the victim's allegations of sexual
> abuse. Because jurors are equally capable of considering the evidence
> and passing on the ultimate issue of sexual abuse, however, a doctor's
> opinion that sexual abuse has in fact occurred is ordinarily neither
> useful to the jury or admissible.[^165]

The Court reversed Birdsall's conviction because a doctor and a
psychologist testified for the government that in their opinion the
children had been sexually abused.

> Normally expert testimony that a victim's conduct or statements are
> consistent with sexual abuse or consistent with the complaints of
> sexually abused children is admissible and can corroborate an alleged
> victim in a significant way. Nevertheless, to say as a matter of
> expert opinion that sexual abuse occurred and a particular person did
> it crosses the line of proper medical testimony and imparts an
> undeserved scientific stamp of approval on the credibility of the
> victims in this case. Here the inadmissible testimony came from two
> doctors, magnifying its impact on the members in an extremely close
> case.[^166]

Additionally, profile evidence is inadmissible. The leading case in this
area is *United States v. Banks.*[^167] The Court of Military Appeals
held that it was reversible error to allow expert testimony that the
accused's family fit the profile of a family experiencing the dynamics
of sexual abuse within the family.[^168] As these cases illustrate, the
defense counsel must be well aware of the parameters of expert testimony
in order to prevent experts from providing impermissible evidence.[^169]

Cross-examination of an expert witness can be daunting, but with some
background work and assistance of the consultant, it can be extremely
productive to a defense counsel. One source of information the defense
counsel should attempt to obtain is copies of previous testimony by the
government expert. This information previews the expert's testimony and
helps the defense counsel to prepare a solid cross-examination.
Additionally, it may assist the defense counsel to find areas the expert
can testify about that are helpful to the defense. The defense counsel
then can minimize anything damaging said by the expert on direct, while
obtaining information helpful to the defense (without having to call his
own expert).

The decision whether the defense expert will testify may depend in large
part on the strength of the government's case. The decision should be
based on discussions with the expert regarding what the expert can
testify about that is helpful to the defense case. Such discussions
should include the issues the expert will have to concede that could
harm the defense. Defense counsel should also be sensitive to the limits
of the expert testimony it seeks to introduce. However, the appellate
courts have noted that "\[J\]udges should 'view liberally the question
of whether the expert's testimony may assist the trier of fact.' And,
'if anything, in marginal cases, due process might make the road a tad
wider on the defense's side than on the Government's.'"[^170] In *United
States v. Dollente*,[^171] the Court of Appeals for the Armed Forces
held the military judge erred when he refused to allow the defense to
present expert testimony that the alleged victim suffered from Post
Traumatic Stress Disorder that could have been caused by other things
present in the victim's life other than a sexual assault. This evidence
directly contradicted the government's expert opinion that there was no
other explanation for the victim's mental state but the trauma of a
sexual assault. [^172]

#### L. Closing Argument {#l.-closing-argument .unnumbered}

Closing argument is an opportunity for the defense counsel to weave
together all the evidence in the case that supports the defense theory
of why his client is not guilty of the offense. While heaven may belong
to the meek, courtrooms belong to the bold. The defense counsel should
make no apologies for defending his client zealously. Nor should he be
afraid to make the hard call, i.e., arguing the child is lying or is
unable to accurately perceive and recall. The defense counsel cannot
overemphasize the government's burden of proof despite the evidence that
cuts against the reliability of the allegations. These may include
evidence of motivation of the child or spouse to fabricate, external
influences which may have affected the child's memory, prior
inconsistent statements, basic improbabilities of the story, and the
client's good record.

The defense counsel may want to consider consulting the expert
concerning the content of the closing argument. The expert may have more
objectivity with regard to the strengths and weaknesses of the defense
theory. The expert may be able to find any faults in the logic or
presentation. The expert may also be helpful in assisting the defense
counsel in framing his argument relating to the expert testimony.

#### M. Guilty Pleas {#m.-guilty-pleas .unnumbered}

Getting the client through a *Care*[^173] inquiry in cases involving
child abuse can be difficult. It requires a great deal of preparation
and practice with the client.[^174] In cases involving child sexual
abuse, the most difficult part of the inquiry may be convincing the
client to admit that his conduct was "with the intent to arouse, appeal
to, or gratify the lust, passions, or sexual desires of the accused, the
victim, or both."[^175] Obviously, the defense counsel cannot advise the
client to plead guilty if he is in fact not guilty. And if the client
cannot bring himself to admit this particular element, then he still
cannot plead guilty. However, once the defense counsel explains the
elements to the client, the defense counsel can help the client provide
the relevant information that satisfies the requirements of a guilty
plea inquiry.

####  {#section-2 .unnumbered}

#### N. Sentencing {#n.-sentencing .unnumbered}

Sentencing is one of the most important, and difficult, portions of any
defense case. In a litigated case, sentencing is even more difficult
because the defense counsel does not have the arguments he would have
had in a guilty plea. However, it is important even in litigated cases
to provide perspective to the members. The defense counsel can
potentially argue the good military record of the client, the impact of
a severe sentence on the family and the member's ability to support
them, the devastating effect of a punitive discharge, or the need to
help the family recover from the accused's misconduct.

Evidence presented in sentencing by the prosecutor may include victim
impact testimony or expert testimony. The defense counsel must be alert
to any overreaching by the witnesses in these areas because failure to
object waives the issue (absent plain error).[^176] He must also be
alert to improper argument by the government. For instance, he should
object to any inappropriate government argument regarding the accused's
lack of remorse, especially if the case is litigated. The basis for the
objection is that the accused may chose to assert his rights and not
testify.[^177]

Even in the most egregious cases of long-term abuse or multiple victims,
there are points for the defense counsel to argue in sentencing. If
supported by the facts, the defense counsel can argue the value of the
guilty plea, the therapeutic needs of the client, any efforts the client
has undertaken before trial to deal with the problem, the client's
background, the need to provide the client with a motive to get better,
the impact on the family if the sentence is unduly severe, or the
family's desire to reunite. While all may seem lost at this point in the
trial, the defense counsel must redouble his efforts to obtain the best
possible punishment outcome for his client.

####  CONCLUSION

"In many respects, child abuse litigation is a new frontier with a
plethora of cases in all jurisdictions addressing provocative
issues."[^178] Defending a case involving any kind of child abuse, may
be personally and professionally one of the most challenging that the
defense counsel will face. The defense counsel must remain detached from
his own feelings about the case. It is important for him to remember
that he is often the only person in the client's world who is offering
any kind of support or encouragement for the future. Regardless of the
defense counsel's personal views, the client should never feel that the
defense counsel also considers him unworthy of human existence because
of the allegations, or his confession to such allegations. An accused
has every right to expect and demand that his defense counsel will
provide the same kind of zealous representation for his case he would
provide in any other case. Harper Lee, in her novel, *To Kill A
Mockingbird,*[^179] touched on the need for meaningful representation
even in controversial cases. Although Ms. Lee was talking about racism,
her thoughts about defending an unpopular client in an unpopular case
are equally applicable to the issues the defense counsel will face in
cases involving child abuse.

> "Do all lawyers defend n-Negroes, Atticus?"
>
> "Of course they do, Scout."
>
> "Then why did Cecil say you defend niggers? He made it sound like you
> were runnin' a still."
>
> Atticus sighed. "I'm simply defending a Negro -- his name's Tom
> Robinson. He lives in that settlement beyond the town dump. He's a
> member of Calpurnia's church, and Cal knows his family well. She says
> they're clean living folks. Scout, you aren't old enough to understand
> some things yet, but there's been some high talk around town to the
> effect that I shouldn't do much about defending this man." . . .
>
> "If you shouldn't be defendin' him, then why are you doin' it?"
>
> "For a number of reasons," said Atticus. "The main one is, if I didn't
> I couldn't hold up my head in town, I couldn't represent this county
> in the legislature, I couldn't even tell you or Jem not to do
> something again."
>
> "You mean if you didn't defend that man, Jem and me wouldn't have to
> mind you any more?"
>
> "That's about right."
>
> "Why?"
>
> "Because I could never ask you to mind me again. Scout, simply by the
> nature of the work, every lawyer gets at least one case in his
> lifetime that affects him personally. This one's mine, I guess."[^180]

[^1]: ^\*^ *Major Townsend (B.S., University of Nebraska-Kearney; J.D.
    University of Nebraska-Lincoln) is the Chief of Military Justice,
    United States Air Force Academy, Colorado. She is a member of the
    Nebraska state bar association.*

[^2]: The author uses the male vernacular because it has been the
    author's experience that the majority of the accuseds are men.
    However, the principles are the same for women who are also so
    accused.

[^3]: Standard 4-3.2(a) and (b), Air Force Standards for Criminal
    Justice, The Judge Advocate General (TJAG) Policy No. 26 (6 January
    1995). The standard states:

    > \(a\) As soon as practicable the defense counsel should seek to
    > determine all relevant facts known to the accused. In so doing,
    > counsel should probe for all legally relevant information without
    > seeking to influence the direction of the client's responses.
    >
    > \(b\) It is unprofessional conduct for the defense counsel to
    > instruct the client or to intimate to the client any way that the
    > client should not be candid In revealing facts so as to afford the
    > defense counsel free rein to take action which would be precluded
    > by counsel's knowing of such facts.

[^4]: In United States v. Dudley, 42 M.J. 528, 531 (N.M.Ct.Crim.App.
    1995) statements by the accused to a psychiatrist were held to be
    admissible without an Article 31 rights advisement despite the
    psychiatrist's knowledge that the accused was under investigation.

    > We believe that although the case at bar involves a closer
    > question . . . due to \[doctor\] superior military status, the
    > location of the interview aboard ship, \[the doctor's\] close
    > friendship with \[NCIS agent\], and the fact that the appellant
    > did not seek out the doctor for treatment. Nevertheless, we find
    > that the inquiry did not merge with the law enforcement
    > investigation because it was conducted solely for diagnostic and
    > psychiatric care purposes. \[The doctor\] was not acting as the
    > alter ego of the NCIS. . . . Moreover, \[his\] testimony
    > concerning the need for progression in mental health patients to
    > overcome the denial stage convinces us that his question "Well,
    > did you do it?" was motivated for non-law enforcement reasons and
    > to help the appellant psychiatrically through what must have been
    > a difficult period.

    *Id.* at 531. *See also* United States v. Rios, 45 M.J. 558
    (A.F.Ct.Crim.App. 1997) (holding statement made to civilian child
    protective services worker was admissible because civilian was not
    subject to UCMJ, not required to give Article 31 rights advisement
    and not working in connection with military); United States v.
    Bowerman, 39 M.J. 219, 221 (C.M.A. 1994) (stating military physician
    who suspected abuse not required to give Article 31 rights when
    questioning accused regarding injuries) ("Even if \[doctor\] thought
    that child abuse was a "distinct possibility," her questioning of
    appellant "to ascertain the facts for protective measures and
    curative purposes" did not violate Article 31." (cites omitted));
    United States v. Pittman, 36 M.J. 404 (C.M.A. 1993) (explaining
    statement by accused to supervisor who was escorting accused home
    were admissible and were not the product of an interrogation or a
    request for a statement within the meaning of Article 31).

[^5]: *See* United States v. Raymond, 38 M.J. 136 (C.M.A. 1993) (holding
    statements made by the accused who voluntarily sought the services
    of a psychiatrist were admissible, psychiatrist not required to give
    Article 31 rights advisement because not acting as an investigator
    and had no intent of turning over statements).

[^6]: Air Force Instruction \[hereinafter AFI\] 44-109, Mental Health
    and Military Law (1 Mar 97).

[^7]: *Id.*, para 3.2.

[^8]: *Id.*, para 3.4.

[^9]: *Id.*, para 3.4.

[^10]: *See* United States v. Demmings, 46 M.J. 877 (Army Ct.Crim.App.
    1997) (citing Jaffee v. Redmond, 58 U.S. 1, 116 S. Ct. 1923, 135 L.
    Ed. 2d 337 (1996)), (stating psychotherapist-patient privilege could
    apply to courts-martial, however defense waived the issue by failing
    to object to applicable statements at trial).

[^11]: [Manual for Courts-Martial,]{.smallcaps} United States (1995 ed.)
    \[hereinafter MCM\] Military Rules of Evidence \[hereinafter Mil. R.
    Evid.\] 503.

[^12]: *See* United States v. Napolean, 44 M.J. 537, 543
    (A.F.Ct.Crim.App. 1996), *aff'd*., 46 M.J. 279 (1997). Here the
    court held the privilege did not exist between the accused and a lay
    minister. "Its foundation contains three elements: (1) the
    communication must be made either as a formal act of religion or as
    a matter of conscience; (2) it must be made to a clergyman in his
    capacity as a spiritual advisor; and (3) the communication must be
    intended to be confidential." *See also* United States v. Coleman,
    26 M.J. 407 (C.M.A. 1988) (holding accused's statements to
    father-in-law who was also a minister that he had taken liberties
    with his daughter were not privileged because they were not made for
    purposes of his religion, but rather to obtain emotional support
    from his father-in-law).

[^13]: *See* United States v. Rios, 45 M.J. 558, 564 (A.F.Ct.Crim.App.
    1997). The court found that accused's statements during a pretext
    phone call were admissible and minors can consent to taped phone
    conversations. "Investigators monitoring a telephone conversation
    involving a suspect, with the consent of one of the parties, where
    the party acts as an agent for the AFOSI, is a 'routine and
    permissible undercover technique.'" quoting U.S. v. Parillo, 31 M.J.
    886 (C.M.A. 1992). Additionally, with the growth of electronic mail
    use, clients should be advised not to discuss matters with anyone by
    e-mail, in electronic chat rooms, etc. This is particularly true if
    a client uses a government, business, or city/state library computer
    since use of such systems usually include "prior consent" by the
    user for monitoring and interception by law enforcement officials.
    *See* Jarrod J. White, *E-Mail @ Work.Com: Employer Monitoring of
    Employee E-Mail,* 48 [Ala. L. Rev]{.smallcaps}. 1079, 1083-1084
    (1997).

[^14]: *See* United States v. Bubonics, 45 M.J. 93 (1996) (stating
    threat of civilian prosecution combined with good cop/bad cop
    interrogation technique overcame free will of sailor with two years
    active duty service and no experience with military justice system).

[^15]: *See* United States v. Murray, 45 M.J. 554 (N.M.Ct.Crim.App.
    1996) (holding statement does not become involuntary because
    interrogator discussed possible loss of unborn child or jailing of
    spouse as possible adverse consequences facing accused for
    allegations of child abuse); The court held in United States v.
    Moreno, 36 M.J. 107 (C.M.A. 1992) (Sullivan, Chief Judge,
    dissenting) that statements of accused were not involuntary when
    state social worker discussed options and possible adverse
    consequences if accused did not cooperate with state authorities.

    > Admittedly, appellant was faced with a choice. On the one hand, he
    > was offered the opportunity of enlisting the aid and support of
    > the Texas Department of Human Services \[DHS\] in trying to keep
    > his family together, in helping himself to overcome his personal
    > problem, and in siding with him in the event of a criminal
    > prosecution. On the other hand, as he well knew, by cooperating
    > with DHS he risked the possibility that his statements would be
    > discovered by prosecutorial forces and used against him at a
    > trial. If he did not cooperate with DHS, however, the risk of
    > losing his children was presumably increased and the risk of
    > criminal prosecution remained-without the benefit of significant
    > DHS influence. It is something of a dilemma to be sure, but it was
    > a dilemma of his own causing. When people abuse children in this
    > society, two distinct processes are triggered. One is the criminal
    > process, which focuses on the proper way to deal with the
    > perpetrator. The other is the child protective process, which
    > focuses on the best interests of the child-victim. In appellant's
    > case, both of these processes were well set in motion by the
    > information initially reported to the authorities. Each of these
    > processes is going to play itself out, one way or another, whether
    > appellant wanted it and whether he took affirmative steps to
    > affect the processes. In effect \[DHS\] merely apprised appellant
    > where he stood in the great flow of things and obviously in the
    > best of faith, she offered him a very plausible scenario that
    > might improve his personal and family prospects.

    *Id.* at 112. However, according to Chief Judge Sullivan:
    "Substantial constitutional error occurred in this case. (cites
    omitted) Appellant's incriminating admissions were made in response
    to direct questioning by \[DHS employee\]. This deliberate
    elicitation of incriminating statements occurred after his Sixth
    Amendment right to counsel had attached and without a proper waiver
    of that right." (cites omitted).

[^16]: Mil. R. Evid. 304(a) & (d)(2)(A). MCM, *supra* note 10. Mil.
    R.Evid. 304(d)(2)(A) provides

    > Motions to suppress or objections under this rule or M.R.E. 302 or
    > 305 to statements that have been disclosed shall be made by the
    > defense prior to submission of a plea. In the absence of such
    > motion or objection, the defense may not raise the issue at a
    > later time except as permitted by the military judge for good
    > cause shown. Failure to so move or object constitutes a waiver of
    > the objection.

[^17]: *See generally* Richard J. Ofshe and Richard A. Leo, *The Social
    Psychology of Police Interrogation: The Theory and Classification of
    True and False Confessions,* 16 [Studies in Law, Politics and
    Society]{.smallcaps}, 189 (1997).

[^18]: Presentation of this evidence will generally require the services
    of an expert witness with familiarity of the subject and research in
    this area.

[^19]: This includes deciding whether to waive the Article 32 hearing,
    submitting a resignation in lieu of court-martial, production of
    witnesses to testify on behalf of the accused, and establishing the
    potential of expert testimony regarding the client's progress in
    therapy.

[^20]: MCM, *supra* note 10, Part II, Rules for Courts-Martial
    \[hereinafter R.C.M.\] 701(e) states "Each party shall have adequate
    opportunity to prepare its case and equal opportunity to interview
    witnesses and inspect evidence. No party may unreasonably impede the
    access of another party to a witness or evidence." *See* United
    States v. Hart, 29 M.J. 407 (C.M.A. 1990)(explaining discovery
    available to accused in courts-martial is broader than the discovery
    provided most civilian defendants). For a good introduction to the
    discovery process, see LeEllen Coacher, *Discovery in
    Courts-Martial*, 39 A. F. L. Rev. 103 (1996).

[^21]: In *United States v. Reece*, 25 M.J. 93, 95 (C.M.A. 1987), the
    defense counsel described medical records and relevancy sufficiently
    despite not knowing the exact contents. "The Military Rules of
    Evidence establish 'a low threshold of relevance'. . . ." (citation
    omitted). *But see* United States v. Briggs, 46 M.J. 699, 702
    (A.F.Ct.Crim.App. 1996) (holding military judge did not err by
    denying defense motion to compel production of rape victim's medical
    records) ("A general description of the material sought or a
    conclusory argument as to their materiality is insufficient.").

[^22]: Records of previous allegations of abuse may provide fertile
    areas for defense to explore in defending the case by providing
    other sources of alleged abuse or injuries. For admissibility
    requirements of such evidence *see* United States v. Woolheater, 40
    M.J. 170, 173 (C.M.A. 1994). In *Woolheater* a conviction was
    reversed for failure to allow the defense to present evidence that
    another person had motive, knowledge and opportunity to commit the
    crime. "The right to present defense evidence tending to rebut an
    element of proof such as the identity of the perpetrator is a
    fundamental Constitutional right." In *United States v. Gray*, 40
    M.J. 70 (C.M.A. 1994), a conviction was reversed because the
    military judge improperly excluded evidence of possible sexual
    conduct involving the victim and another child.

    > A child-victim's sexual activity with someone other than an
    > accused may be relevant to show that the alleged victim had
    > knowledge beyond her tender years before the alleged encounter
    > with the accused. . . .By excluding the evidence, the military
    > judge deprived appellant of evidence which could have made his
    > otherwise incredible explanation believable.

    *Id.* at 80. *But see* United States v. Shaffer, 46 M.J. 94 (1997);
    United States v. Gober, 43 M.J. 52 (1995).

[^23]: Reece*,* 25 M.J. at 95 (C.M.A. 1987)

    > At trial, defense counsel established that, as there were no
    > eyewitnesses to the alleged offenses, the credibility of the two
    > girls would be a key issue in the case. He argued that Miss D's
    > history of alcohol and drug treatment was relevant to her ability
    > to perceive and remember events, especially as she had admitted
    > that she had consumed alcohol before each of the alleged
    > incidents. With respect to Miss B, he argued that her counseling
    > records would contain evidence of her behavioral problems. He made
    > as specific a showing of relevance as possible, given that he was
    > denied all access to the documents. Some forms of emotional or
    > mental defects have been held to 'have high probative value on the
    > issue of credibility . . . . \[A\] conservative list of such
    > defects would have to include . . . most or all of the neuroses, .
    > . . alcoholism, drug addiction, and psychopathic personality'"
    > (citations omitted).

[^24]: *See* United States v. Romeno, 46 M.J. 269 (1997) (case reversed
    for failure of the prosecutor to provide discovery of exculpatory
    statements made by main witness against accused).

[^25]: A good source for this type of information is The Physicians'
    Desk Reference. [Physicians' Desk Reference]{.smallcaps} (51^st^ ed.
    1997). Additionally, most health care providers have access to
    on-line services which catalogue published articles relating to the
    particular drugs being researched. These services are also usually
    available at larger military medical facilities and local libraries.

[^26]: *See* Jan Bays and David Chadwick, *Medical Diagnosis of the
    Sexually Abused* *Child*, 17 [Child Abuse & Neglect]{.smallcaps} 91,
    99 (1993). "Transmission of sexually transmitted diseases outside
    the perinatal area by nonsexual means is a rare occurrence."

[^27]: *See generally* John McCann, MD, et al., *Genital Findings in
    Prepubertal Girls Selected for Nonabuse: A Descriptive Study*,
    [Pediatrics]{.smallcaps}, Volume 86, No. 3, at 428 (3 September
    1990); *see also* Bays and Chadwick, *supra* note 25, at 92, 94-97.

[^28]: Bays and Chadwick, *supra* note 25, at 103-107.

[^29]: *See* United States v. Tornowski, 29 M.J. 578 (A.F.C.M.R. 1989)

    > There is little question that child sexual abuse cases often
    > present a fertile, indeed, a necessary, area for expert assistance
    > (cites omitted). Particularly when . . . the prosecution utilizes
    > the assistance of experts, the defense can make a valid and
    > plausible argument for expert assistance of its own to aid in
    > properly evaluating the factual issues and providing adequate
    > legal representation for an accused. . . . From our review of the
    > record, the defense team in this case articulated a number of
    > areas in which a child psychologist might have provided valuable
    > insights and guidance. For instance, certain information suggested
    > that the seven year old victim might have possessed an unusual
    > degree of sexual awareness for a child of tender years. Might this
    > have caused her to make sexual allegations against the appellant
    > that another child of the same age could not have fabricated?
    > *Id.* at 580.

[^30]: United States v. Turner, 28 M.J. 487 (C.M.A. 1989) (citations
    omitted).

[^31]: *Id*. at 488.

[^32]: *See* United States v. Brown, 26 M.J. 148, 150 (C.M.A. 1988);
    United States v. Robertson, 36 M.J. 190, 191 (C.M.A. 1992). Both
    cases adopted the test for the parental discipline defense given in
    the [Model Penal Code]{.smallcaps}, Section 3.08(1) (1985).

    > The use of force upon or toward the person of another is justified
    > if: (1) the actor is the parent or guardian or other person
    > similarly responsible for the general care and supervision of a
    > minor or a person acting at the request of such parent, guardian
    > or other responsible person and: (a) the force is used for the
    > purpose of safeguarding or promoting the welfare of the minor,
    > including the prevention or punishment of his misconduct; and (b)
    > the force used is not designed to cause or known to create a
    > substantial risk of causing death, serious bodily injury,
    > disfigurement, extreme pain or mental distress or gross
    > degradation. . . .

[^33]: *See* Mil. R. Evid. 502, *supra* note 10; United States v.
    Turner, 28 M.J. 487 (C.M.A. 1989); United States v. Gordon, 27 M.J.
    331, 332 (C.M.A. 1989); and United States v. Toledo, 25 M.J. 270,
    275 (C.M.A. 1987). *See also* Will A. Gunn, *Supplementing the
    Defense Team: A Primer on Requesting and Obtaining Expert
    Assistance*, 39 A. F. L. Rev. 143 (1996).

[^34]: United States v. Turner, 28 M.J. 487 (C.M.A. 1989).

[^35]: *Id.* at 488, 489. Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087,
    84 L. Ed. 2d 53 (1985).

[^36]: Mil. R. Evid. 502, *supra* note 10.

[^37]: Mil. R. Evid. 502(b)(3), *supra* note 10.

[^38]: United States v. Toledo, 25 M.J. 270 (C.M.A. 1987).

[^39]: *Id*. at 276.

[^40]: United States v. Garries, 22 M.J. 288 (C.M.A. 1986), *cert.
    denied*, 479 U.S. 985, 107 S. Ct. 575, 93 L. Ed. 2d 578 (1986).

[^41]: *Id.* at 291.

[^42]: *Id.* at 291. In *United States v. Kaspers*, 47 M.J. 176, 180
    (1997), the appellant asked for an *ex parte* hearing to protect
    attorney client privileged information which formed the basis of the
    expert request. The Court explained that:

    > Here, we examine our own rule, which requires disclosure by the
    > defense if it desires government funding. See R.C.M. 703(d). Using
    > our rule, the judge did not abuse his wide discretion in denying
    > the *ex parte* hearing because appellant did not establish
    > "unusual circumstances" \[cite omitted\]. . . . We realize that,
    > while our rule may burden the defense to make a choice between
    > justifying necessary expert assistance and disclosing valuable
    > trial strategy, the defense is not without a remedy. The military
    > judge has broad discretion to protect the rights of the military
    > accused.

[^43]: United States v. Tornowski, 29 M.J. 578 (A.F.C.M.R. 1989).

[^44]: Moore v. Kemp, 809 F.2d 702, 712 (11^th^ Cir.1987).

[^45]: United States v. Tornowski, 29 M.J. 578, 580 (A.F.C.M.R. 1989).

[^46]: United States v. Gonzalez, 39 M.J. 459 (C.M.A. 1994).

[^47]: *Id.* at 461, citing United States v. Allen, 31 M.J. 572, 623
    (N.M.C.M.R. 1990), *aff'd*, 33 M.J. 209 (C.M.A. 1991).

[^48]: United States v. Ingham, 42 M.J. 218, 226 (1995).
    "\[A\]ppellant's right, upon a minimal showing of need, is to expert
    assistance (cites omitted). He does not have a right to compel the
    Government to purchase for him any particular expert or any
    particular opinion." *See also* United States v. Garries, 22 M.J.
    288 (C.M.A. 1986), *cert. denied*, 479 U.S. 985, 107 S. Ct. 575, 93
    L. Ed. 2d 578 (1986); United States v. Tharpe, 38 M.J. 8, 14 (C.M.A.
    1993).

[^49]: United States v. Burnette, 29 M.J. 473, 475-76 (C.M.A. 1990)
    (holding the government is required to provide competent expert and
    simply providing access to government expert may not be sufficient)
    (citations omitted).

    > All that is required is that competent assistance be made
    > available. . . . In retrospect it is clear that \[the government
    > expert\] would not have been an adequate substitute for such
    > independent assistance. . . . \[The government expert\] was
    > presenting incriminating evidence against appellant on behalf of
    > the prosecution. If there remained a genuine question regarding
    > the test procedures and conclusions, it would hardly be fair to
    > expect the defense to extract its ammunition from one of the very
    > witnesses whose conclusions it was attacking.

[^50]: *See* United States v. Robinson, 43 M.J. 501, 505
    (A.F.Ct.Crim.App. 1995) (explaining it was not error to deny defense
    motion for civilian expert who had more experience in treatment of
    sex offenders than initial defense approved expert). ("\[A\]n
    accused is not entitled to have the government pay for the best
    expert witness available since the government may always provide an
    adequate substitute. R.C.M. 703(d). Of course, a government-selected
    expert is not an 'adequate substitute' when that expert and the
    defense requested one hold divergent scientific views."); United
    States v. Van Horn, 26 M.J. 434, 438 (C.M.A. 1988) (citations
    omitted) (reversing based on military judge's denial of defense
    requested expert and erroneous finding that government expert was an
    adequate substitute).

    > We have no doubt that \[the government expert\] was an expert in
    > his field. However, the fact remains that \[the defense expert\],
    > also an expert, had no connection with the challenged laboratory
    > and had examined its reports which were used by the prosecution.
    > More importantly, he had a contrary opinion concerning reliability
    > of the test procedures used, results reached, and conclusions
    > based thereon. In short, his testimony favored the defense and
    > could not reasonably be considered cumulative of \[the government
    > expert\] or replaceable by his testimony. . . . To deny the
    > defense a meaningful opportunity to present its evidence, which
    > challenged the Government's scientific proof, its reliability, and
    > its interpretation, denied appellant a fair trial.

[^51]: Often, the government will use the physician that initially
    examined the child. This physician may be one with limited
    experience in the child abuse arena. Finding a physician with more
    experience and better credentials will impress the members should
    the defense expert testify. It may also have the effect of educating
    the government expert regarding the current state of research in the
    relevant subject area which should keep the government expert from
    exceeding limits of his/her expert opinion.

[^52]: R.C.M. 906(b)(7), *supra* note 19.

[^53]: United States v. Ndanyi, 45 M.J. 315 (1996).

[^54]: *Id.* at 320. *See also* Van Horn, 26 M.J. at 468.

[^55]: A forensic psychologist/psychiatrist has experience dealing with
    legal issues as they relate to the field of psychology, may have
    previously testified as an expert witness, and should have
    experience in analyzing evidence in a criminal trial for issues
    related to his field of expertise. Employing an expert with forensic
    experience may reduce the amount of preparation time as well as
    increase the use of the expert given this specialized knowledge.

[^56]: In United States v. Sojfer, 47 M.J. 425, 427-28 (1998) (citations
    and footnotes omitted) the court discussed admissibility of evidence
    related to a witness' competency in terms of an ability to perceive
    a situation.

    > There are similarities between bias and capacity to observe,
    > remember and recollect. Both are grounds for impeachment, and both
    > may be proven by extrinsic evidence. However, before the proponent
    > may introduce evidence under either theory, he or she must lay a
    > foundation that establishes the legal and logical relevance of the
    > impeaching. How a witness "views" an event, in terms of her five
    > senses, depends on her background, including family life,
    > education and day-to-day experiences. Witnesses "behave according
    > to what \[they\] bring to the occasion, and what each of \[them\]
    > brings to the occasion is more or less unique. In that sense, each
    > witness has a bias. Additionally a witness's interpretation of an
    > event depends on whether her perception is impaired. For example,
    > the individual may be hearing-impaired or may not have been
    > wearing corrective lenses at the time of the crime. A past or
    > present mental condition also may impact on a person's ability to
    > perceive.

    This language could also be used to support a motion to compel
    discovery of certain mental health and medical records.

[^57]: For a discussion on a suggested approach for assessing the
    validity of statements regarding sexual abuse*, see* David R. Raskin
    and Phillip W. Esplin, *Statement Validity Assessment: Interview
    Procedures and Content Analysis of Children's Statements of Sexual
    Abuse,* 13 [Behavioral Assessment]{.smallcaps} 265 (1991). Concerned
    over increased questioning of the reliability of assessment
    procedures for examining abuse, the American Academy of Child and
    Adolescent Psychiatry (AACAP) issued recommended guidelines in 1988.
    *See* AACAP, *Guidelines for the Clinical [Evaluation of Child and
    Adolescent Sexual Abuse, ]{.smallcaps}*[25]{.smallcaps} J. Am. Acad.
    Child & Adolescent Psychiatry 655 (1988).

[^58]: *See generally*[, The Suggestability of Children's Recollections:
    Implications for Eyewitness Testimony]{.smallcaps} (John Doris ed.,
    American Psychological Association 1991).

[^59]: For a discussion regarding the possible effects of repeated or
    leading questions or multiple interviews, see John B. Meyers, et
    al., *Psychological Research on Children as Witnesses: Practical
    Implications for Forensic Interviews and Courtroom* *Testimony*, 27
    [Pacific L.J]{.smallcaps}. 1, 12, 25 (1996).

[^60]: *See generally*, William Bernet, M.D., *Practice Parameters for
    the Forensic Evaluation of Children and Adolescents Who May Have
    Been Physically or Sexually Abused*, 36:3 [J. Am.]{.smallcaps}
    [Acad. Child Adolesc. Psychiatry]{.smallcaps}, 423 (March 1997).

[^61]: *See generally*, [Dr. Steven Ceci & Dr. Maggie Bruck, Jeopardy in
    the Courtroom: A Scientific Analysis of children's Testimony 30-33
    (1995).]{.smallcaps}

[^62]: For a review of the pros and cons of the use of anatomically
    correct dolls in child interviews, see generally [Ceci and
    Bruck]{.smallcaps}, *supra* note 60, at 161*.*

[^63]: United States v. Turner, 28 M.J. 487 (C.M.A. 1989).

[^64]: *Id.* at 489 n.3.

[^65]: United States v. Mansfield, 38 M.J. 415 (C.M.A. 1993).

[^66]: *Id.* at 418.

[^67]: R.C.M. 706.

[^68]: Even the military courts have recognized the difficulty in
    interviewing child witnesses. In United States v. Dunlap, 39 M.J.
    835, 839 n.6 (A.C.M.R. 1994), the Army Court of Military Review set
    aside the conviction because of the improper admission of the
    child's hearsay statements which were the product of a suggestive
    puppet show dealing with child abuse. The court noted

    > This case points up a very important aspect of developing child
    > abuse cases-the need for a trained professional. If a school or
    > other organization is going to use a puppet show or other device
    > to surface cases of abuse, then it had better also have personnel
    > specifically trained in dealing with child abuse problems to do
    > the follow-up counseling.

[^69]: If the child indicates that they have such writings, it may be
    prudent for the defense counsel to call the trial counsel and ask
    that an adult, other than the parents, accompany the child to pick
    up the diary. This will avoid destruction of the writings by the
    child or a misguided parent or social worker.

[^70]: M.R.E. 804(a) *supra* note 10, and R.C.M. 703(b)(3) *supra* note
    19.

[^71]: R.C.M. 405(j)(2)(B), *supra* note 19. *See also* Discussion to
    R.C.M. 405(h)(1)(A) at Part II, page 38, which suggests that the IO
    prepare a summary of the testimony and have the witness swear to it
    again. However, the analysis acknowledges that the IO is not
    required to do this to complete the report.

[^72]: *But see* Discussion to R.C.M. 405(h)(1)(A) at Part II, page 38,
    *supra* note 19, which indicates that any notes or recordings of the
    testimony should be preserved until the end of the trial. These
    recordings should then be available to the defense and could be used
    to impeach the witness with the prior inconsistent statement.

[^73]: United States v. Marrie, 39 M.J. 993 (A.F.C.M.R. 1994), *aff'd*,
    43 M.J. 35 (1995).

[^74]: *See supra* note 19. The rule provides

    > Except as provided in subsection (g)(4)(A) of this rule, any
    > witness whose testimony would be relevant to the investigation and
    > not cumulative, shall be produced if reasonably available. This
    > includes witnesses requested by the accused, if the request is
    > timely. A witness is "reasonably available" when the witness is
    > located within 100 miles of the situs of the investigation and the
    > significance of the testimony and personal appearance of the
    > witness outweighs the difficulty, expense, delay, and effect on
    > military operations of obtaining the witness' appearance. A
    > witness who is unavailable under Mil. R. of Evid. 804 (a)(1-6) is
    > not "reasonably available."

[^75]: *Marrie*, *supra* note 72, at 997.

[^76]: R.C.M. 405(g)(1(A), *supra* note 19.

[^77]: United States v. Simoy, 46 M.J. 592, 608 (A.F.Ct.Crim.App. 1996).

[^78]: *See* Discussion to R.C.M. 405(g)(2)(B), *supra* note 19, at Part
    II, page 36.

[^79]: *See* United States v. Oritz, 33 M.J. 549 (A.C.M.R. 1991) and
    United States v. Rudolph, 35 M.J. 622 (A.C.M.R. 1992). This is
    especially important if there are legitimate concerns about the
    availability of the child at trial.

[^80]: R.C.M. 405(f)(12), *supra* note 19.

[^81]: R.C.M.405(j)(4), *supra* note 19.

[^82]: *See* United States v. Argo, 46 M.J. 454 (1997) (holding where
    defense did not raise issue of nondisclosure of impeachment evidence
    of a government witness in objections to the Article 32 report
    within 5 days, was waived for the issue at trial).

[^83]: R.C.M. 703(c)(2)(C), *supra* note 19.

[^84]: R.C.M. 905(b)(4), 906(b)(7), and 914, *supra* note 19.

[^85]: United States v. Reece, 25 M.J. 93 (C.M.A. 1987).

[^86]: *Id.* at 94, quoting United States v. Mougenel, 6 M.J. 589, 591
    (A.F.C.M.R. 1978), *pet denied*, 6 M.J. 194 (1979).

[^87]: *Id.* at 95 (citations omitted).

[^88]: United States v. Tangpuz, 5 M.J. 426 (C.M.A. 1978).

[^89]: *Id.* at 429.

[^90]: United States v. Manos, 17 U.S.C.M.A. 10, 15, 37 C.M.R. 274, 279
    (1967).

[^91]: United States v. Sweeney, 14 U.S.C.M.A. 599, 605, 34 C.M.R. 379,
    385 (1964) (holding accused prejudiced when the military judge
    denied motion to compel two character witnesses who would have
    testified on the merits).

[^92]: 5 M.J. at 430, citing United States v. Manos, 17 U.S.C.M.A. at
    15, 37 C.M.R. at 279.

[^93]: *See* United States v. Brown, 28 M.J. 644 (A.C.M.R. 1989).
    "Although timeliness is not *per* *se* grounds for denying a request
    for a witness, timeliness of a defense request for a witness may be
    considered." *Id.* at 647.

[^94]: R.C.M. 905(b)(1) and 906(b)(3), *supra* note 19.

[^95]: *See* United States v. Marrie, 39 M.J. 993 (A.F.C.M.R. 1994),
    *aff'd*, 43 M.J. 35 (1995).

[^96]: While the author's research found no cases directly on point, a
    due process argument could be made based on R.C.M. 405(g)(4)(A),
    *supra* note 19. *See also* United States v. Pazdernik, 22 M.J. 690
    (A.F.C.M.R. 1986) (stating purpose of the Article 32 hearing is to
    insure the accused receives a thorough and impartial investigation);
    United States v. Bramel, 29 M.J. 958 (A.C.M.R.) (stating primary
    purpose of Article 32 investigation is to obtain impartial
    recommendation of the charges); and United States v. Chestnut, 2
    M.J. 84, 85 n.4 (C.M.A. 1976). ("\[T\]his court once again must
    emphasize that an accused is entitled to the enforcement of his
    pretrial rights without regard to whether such enforcement will
    benefit him at trial.").

[^97]: M.R.E. 803, *supra* note 10, provides:

    > The following are not excluded by the hearsay rule, even though
    > the declarant is available as a witness: . . . (24) Other
    > exceptions. A statement not specifically covered by any of the
    > foregoing exceptions but having equivalent circumstantial
    > guarantees of trustworthiness, if the court determines that (A)
    > the statement is offered as evidence of a material fact; (B) the
    > statement is more probative on the point for which it is offered
    > than any other evidence which the proponent can procure through
    > reasonable efforts; and (C) the general purposes of these rules
    > and the interests of justice will best be served by admission of
    > the statement into evidence. However, a statement may not be
    > admitted under this exception unless the proponent of it makes
    > known to the adverse party sufficiently in advance of the trial or
    > hearing to provide the adverse party with a fair opportunity to
    > prepare to meet it, the intention to offer the statement and the
    > particulars of it, including the name and address of the
    > declarant.

[^98]: Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d.
    638 (1990).

[^99]: *Id.* 497 U.S. at 814-15, 110 S. Ct. at 3141.

[^100]: *Id*. 497 U.S. at 815, 110 S. Ct. at 3142.

[^101]: United States v. Clark, 35 M.J. 98, 106 (C.M.A. 1992) citing
    Idaho v. Wright, 497 U.S. at 819, 110 S. Ct. at 3142.

[^102]: United States v. Kelley, 45 M.J. 275 (1996).

[^103]: Formerly the Court of Military Appeals.

[^104]: 45 M.J. at 280.

[^105]: *Id*. (citations omitted).

[^106]: *See generally* United States v. Cordero, 22 M.J. 216 (C.M.A.
    1986); United States v. Murphy, 30 M.J. 1040 (A.C.M.R. 1990) (citing
    cases holding that statements made to law enforcement agents are
    inherently suspect); and United States v. Quarles, 25 M.J. 761
    (N.M.C.M.R. 1987) (explaining admission of hearsay statements error
    because they were unreliable).

[^107]: United States v. Hines, 23 M.J. 125 (C.M.A. 1986).

[^108]: *Id*. at 137 (cites omitted).

[^109]: Mil. R. Evid. 413, *supra* note 10, allows the prosecution, in
    the case of sexual assault, to present evidence of any other sexual
    assault committed by the accused for any relevant purpose. The
    prosecution must provide notice of its intent at least 15 days prior
    to trial date. (The Air Force has proposed an amendment to the
    current rules, changing the notice requirement to 5 days. It is
    expected this change will be approved and implemented in the near
    future.)

[^110]: Mil. R. Evid. 414, *supra* note 10, allows the prosecution, in a
    case of child sexual molestation, to present evidence of any other
    sexual assault on a child for any relevant purpose. The prosecution
    must provide notice of its intent at least 15 days prior to trial
    date. (The Air Force has proposed an amendment to the current rules,
    changing the notice requirement to 5 days. It is expected this
    change will be approved and implemented in the near future.) For a
    good overview of the new rules, see Stephen R. Henley, *Caveat
    Criminale: The Impact of the New Military Rules of Evidence in
    Sexual Offense and Child Molestation Cases*, [The Army
    Lawyer,]{.smallcaps} 82 (Mar 1996).

[^111]: The rule states "Although relevant, evidence may be excluded if
    its probative value is substantially outweighed by the danger of
    unfair prejudice, confusion of the issues, or misleading the
    members, or by considerations of undue delay, waste of time, or
    needless presentation of cumulative evidence." *See also* United
    States v. Hughes, \_\_ M.J. \_\_, ACM 32359 1998 CCA LEXIS 227
    (AFCCA 1998) (holding that in cases of evidence offered under Mil.
    R. Evid. 414, a judge must still find the evidence to be relevant
    under Mil. R. Evid. 401 and must perform the balancing test under
    Mil. R. Evid. 403.

[^112]: Mil. R. Evid. 105, *supra* note 10.

[^113]: *See generally* United States v. Loving, 41 M.J. 213 (1994);
    United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989); United States
    v. Mirandes-Gonzalez, 26 M.J. 411 (C.M.A. 1989); and United States
    v. White, 23 M.J. 84 (C.M.A. 1986).

[^114]: United States v. Franklin, 35 M.J. 311 (C.M.A. 1992).

[^115]: *Id.* at 316.

[^116]: United States v. Gamble, 27 M.J. 298 (C.M.A. 1988).

[^117]: [S. Saltzburg, et al., Military Rules of Evidence
    Manual,]{.smallcaps} at [361]{.smallcaps} (2d ed. 1986).

[^118]: 27 M.J. at 304.

[^119]: Mil. R. Evid. 803(4), *supra* note 10, provides

    > \(4\) *Statements for purposes of medical diagnosis or treatment*.
    > Statements made for purposes of medical diagnosis or treatment and
    > described medical history, or past or present symptoms, pain, or
    > sensation, or the inception or general character of the cause or
    > external source thereof insofar as reasonably pertinent to
    > diagnosis or treatment.

[^120]: United States v. Armstrong, 36 M.J. 311, 313 (C.M.A. 1993). *See
    also* United States v. Quigley, 35 M.J. 345, 346-47 (C.M.A. 1992).

[^121]: United States v. Siroky, 42 M.J. 707 (A.F.Ct.Crim.App. 1996),
    *aff'd*., 44 M.J. 394 (1996).

[^122]: United States v. Faciane, 40 M.J. 399 (C.M.A. 1994).

[^123]: *Id.* at 403. See also *United States v. Dunlap*, 39 M.J. 835
    (A.C.M.R. 1994) (holding it error to admit statements under M.R.E.
    803(4) as there was no evidence that witness recognized that person
    making statement to could provide treatment, or that witness
    expected to receive treatment).

[^124]: *Quigley*, 35 M.J. at 346-347.

[^125]: *Id*.

[^126]: United States v. Armstrong, 36 M.J. 311 (C.M.A. 1993).

[^127]: *Id.* at 314.

[^128]: United States v. Henry, 42 M.J. 593 (Army Ct.Crim.App. 1995).

[^129]: Formerly the Army Court of Military Review.

[^130]: 52 M.J. at 597-98.

[^131]: *Id*. at 596.

[^132]: United States v. Knox, 46 M.J. 688 (N.M.Ct.Crim.App. 1997).

[^133]: Formerly the Navy Marine Court of Military Review.

[^134]: *Id.* at 696, citing Tome v. United States, 513 U.S. 150,
    165-67, 115 S. Ct. 696, 705, 130 L. Ed. 2d 574 (1995).

[^135]: United States v. Buenaventura, 40 M.J. 519, 528 (A.C.M.R. 1994)
    (Hostler, concurring in part, dissenting in part).

[^136]: United States v. Woolheater, 40 M.J. 170 (C.M.A. 1994).

[^137]: *Id*. at 173-74.

[^138]: *Id*.

[^139]: In many instances the child may not so much be lying but rather
    is being pushed into a story by a parent with their own agenda. This
    type of false accusation case happens quite often in bitter divorce
    proceedings. *See* Thomas M. Horner & Melvin J. Guyer, *Prediction,
    Prevention, and Clinical Expertise in Child Custody Cases in Which
    Allegations of Child Sexual Abuse Have Been Made: I. Predictable
    Rates of Diagnostic Error in Relation to Various Clinical
    Decisionmaking Srategies,* 25 [Fam. L. Q.]{.smallcaps} 217, 219-220
    (1991).

[^140]: Humphrey Bogart, [Casablanca]{.smallcaps} (Metro-Goldwyn-Mayer
    1942).

[^141]: Discussion to R.C.M. 912(d), *supra* note 19.

[^142]: R.C.M. 912(f), *supra* note 19, provides

    *Challenges and removal for cause*.

    *Grounds*. A member shall be excused for cause whenever it appears
    that the member:

    Is not competent to serve as a member under Article 25(a), (b), or
    (c);

    \(B\) Has not been properly detailed as a member of the
    court-martial;

    \(C\) Is an accuser as to any offense charged;

    Will be a witness in the court-martial;

    Has acted as counsel for any party as to any offense charged;

    Has been an investigating officer as to any offense charged;

    Has acted in the same case as convening authority or as the legal
    officer or staff judge advocate to the convening authority;

    Will act in the same case as reviewing authority or as the legal
    officer or staff judge advocate to the reviewing authority;

    Has forwarded charges in the case with a personal recommendation as
    to disposition;

    Upon a rehearing or new or other trial of the case, was a member of
    the court-martial which heard the case before;

    Is junior to the accused in grade or rank, unless it is established
    that this could not be avoided;

    Is in arrest or confinement;

    Has informed or expressed a definite opinion as to the guilt or
    innocence of the accused as to the offense charged;

    Should not sit as a member in the interest of having the
    court-martial free from substantial doubt as to legality, fairness,
    and impartiality.

[^143]: *See generally* United States v. White, 36 M.J. 284, 287 (C.M.A.
    1993); United States v. Daulton, 45 M.J. 212, 217 (1996).

[^144]: 45 M.J. at 218.

[^145]: *Id.* at 217. *See also* United States v. Smart, 21 M.J. 15
    (C.M.A. 1985) (stating military judge abused his discretion when he
    failed to grant challenge against a victim of multiple armed
    robberies in a case of robbery).

[^146]: *See* 45 M.J. at 217.

[^147]: *Id.*.

[^148]: To preserve the issue on appeal, the defense counsel must
    clearly describe the body language that concerned him, as well as
    when the member exhibited the body language. For instance "While
    answering that she could consider all available forms of punishment,
    MSgt Doe crossed her arms in front of herself and visibly sat back
    in her chair. Additionally she was shaking her head no, while saying
    yes."

[^149]: *See* [Ceci and Bruck,]{.smallcaps} *supra* note
    60[,]{.smallcaps} at [107.]{.smallcaps}

[^150]: *See also* United States v. Mosqueda, 43 M.J. 491 (1996)
    (holding member should have been excused after he consulted a
    physician about child abuse after trial had begun); United States v.
    Kelley, 40 M.J. 515 (A.C.M.R. 1994) (stating member whose family
    member had been raped should have been excused because incident left
    him angry and resentful).

[^151]: *See generally* John B. Meyers, et al., *Psychological Research
    on Children as Witnesses: Practical Implications for Forensic
    Interviews and Courtroom* *Testimony*, 27 [Pacific L.J]{.smallcaps}.
    1, 12, 25 (1996).

[^152]: For a discussion on the use of prior inconsistent statements
    *see generally* Earl F. Martin, III, *Prior Inconsistent Statements
    and the Military Rules of Evidence*, 39 [A.F. Law Rev]{.smallcaps}.
    207 (1996).

[^153]: *See* [Larry S. Pozner & Roger J. Dodd, Cross-Examination:
    Science and Techniques, 137 (1993).]{.smallcaps} Pozner explains
    cross-examination preparation by using sequence of events charts.

[^154]: *Id.* at 155. Pozner discusses cross-examination preparation by
    using witness statement charts.

[^155]: Introduction of a videotape may also be beneficial to the
    defense if there is a question of suggestion. *See* United States v.
    Casteel, 45 M.J. 379 (1996) (allowing defense counsel to play
    videotape and cross-examined investigator about leading questions
    used in the interview).

[^156]: Recent studies have shown a child's age has the greatest impact
    on both credibility and conviction. Younger children, especially
    those around nine years old, are viewed by jurors as being more
    credible than older children, teenagers and adults. *See* Jessica
    Libergott Hamblen & Murray Levine, *The Legal Implications and
    Emotional Consequences of Sexually Abuse Children Testifying as
    Victim-Witnesses*[, 21 Law & Psychol. Rev. 139, 145-154]{.smallcaps}
    (1997).

[^157]: United States v. Longstreath, 45 M.J. 366, 372 (1996) citing
    Maryland v. Craig, 497 U.S. 836, 856-57, 110 S. Ct. 3157, 3169-70,
    111 L. Ed. 2d. 666 (1990).

[^158]: *Id.*at 366.

[^159]: United States v. Daulton, 45 M.J. 212 (1996).

[^160]: Comprehensive Crime Control Act of 1990 § 225, 18 U.S.C. § 3509
    (1990).

[^161]: *See* U.S. v. Daulton, 45 M.J. 212, 219 (1996) (holding
    Confrontation Clause was violated by requiring accused to leave the
    courtroom during the testimony and watch on closed-circuit
    television); United States v. Williams, 37 M.J. 289 (C.M.A. 1993)
    (allowing child to testify from a chair in the center of the
    courtroom where accused could see her profile); United States v.
    Thompson, 31 M.J. 168 (C.M.A. 1990) (stating Confrontation Clause
    not violated by allowing boys to testify with their backs to
    accused, facing military judge and counsel).

[^162]: United States v. Banks, 36 M.J. 150, 160 (C.M.A. 1992).

[^163]: United States v. Birdsall, 47 M.J. 404 (1998).

[^164]: United States v. Whitted, 11 F.3d 782, 785 (8^th^ Cir. 1993).

[^165]: *See* 47 M.J. at 409 (citations omitted).

[^166]: *Id*. at 410 (citations omitted).

[^167]: United States v. Banks, 36 M.J. 150 (C.M.A. 1992).

[^168]: *Id.* at 163.

[^169]: *See also* United States v. Dollente, 45 M.J. 234 (1996)
    (reversing for allowing expert to testify as a human lie detector);
    United States v. Cacy, 43 M.J. 214 (1995) (stating expert went too
    far when testified that she explained necessity of telling truth to
    child in order to determine if further treatment was necessary, then
    recommended further treatment, which were really euphemism for
    truthfulness of child); and United States v. King, 35 M.J. 337, 342
    (C.M.A. 1992) (finding it error to permit expert to testify that 5
    year old children lack the ability to fabricate allegations because
    of lack of sophistication) ("This type of testimony illustrates how
    dangerous it is for judges to receive uncritically just anything an
    expert wants to say. The evaluation of expert testimony does not end
    with a recitation of academic degrees. Everything the expert says
    has to be relevant, reliable, and helpful to the factfinder.").

[^170]: United States v. Garcia, 40 M.J. 533, 536 (A.F.C.M.R. 1994)
    (citations omitted), *aff'd,* 44 M.J. 27 (1996).

[^171]: United States v. Dollente, 45 M.J. 234 (1996).

[^172]: *Id*. at 238.

[^173]: United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).

[^174]: The defense counsel should consider such things as giving the
    accused a copy of the proof analysis to familiarize the client with
    the elements the military judge will talk with him about. The
    defense counsel may also ask the client to write out a statement
    explaining the offense. The client could use this as a basis for
    telling the judge in his own words why he is guilty of the charged
    offense.

[^175]: MCM, *supra* note 10, Uniform Code of Military Justice, Part IV
    paragraph 87, Article 134, Indecent Acts or Liberties With a Child.

[^176]: *See generally* United States v. Williams, 41 M.J. 134 (C.M.A.)
    (holding expert can testify as to future dangerousness as it relates
    to relevant rehabilitative potential); United States v. Prevatte, 40
    M.J. 396 (C.M.A. 1994) (explaining it is not plain error for
    government experts to recommend confinement as part of sentence).

[^177]: *But see* United States v. Toro, 37 M.J. 313, 318 (C.M.A. 1993)
    ("It is proper for the prosecutor to comment on appellant's refusal
    to admit guilt after the accused has either testified or has made an
    unsworn statement and had either expressed no remorse or his
    expressions of remorse can be arguably construed as shallow,
    artificial, or contrived." (citations omitted)).

[^178]: *See* United States v. Banks, 36 M.J. 150, 160 (C.M.A. 1992).

[^179]: [Harper Lee, To Kill a Mockingbird (]{.smallcaps}1960).

[^180]: *Id*. at 83-84.