UNITED STATES, Appellee 

v. 

John S. FREEMAN, Senior Airman 

U.S. Air Force, Appellant 

No. 06-0833 

Crim. App. No. 35822 

United States Court of Appeals for the Armed Forces

Argued November 5, 2007 

Decided February 1, 2008 

STUCKY, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and BAKER, ERDMANN, and RYAN, JJ., joined. 

Counsel

For Appellant: Captain Vicki A. Belleau (argued); Lieutenant 

Colonel Mark R. Strickland and Captain John S. Fredland (on 

brief). 

For Appellee: Captain Brendon K. Tukey (argued); Colonel Gerald 

R. Bruce and Major Matthew S. Ward (on brief); Lieutenant 

Colonel Robert V. Combs. 

Military Judges: Patrick M. Rosenow and Kurt D. Schuman 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Freeman, No. 06-0833/AF 

2

 Judge STUCKY delivered the opinion of the Court. 

 We granted review to determine whether the military judge 

committed prejudicial error by failing to suppress Appellant’s 

confession, by denying the defense request for the appointment 

of a forensically-qualified expert consultant at government 

expense, and by admitting evidence of uncharged misconduct and 

bad character in violation of Military Rule of Evidence (M.R.E.) 

404(b). We conclude the military judge did not commit 

prejudicial error and affirm the decision of the United States 

Air Force Court of Criminal Appeals. 

I. Facts 

 Appellant met KS at a New Year’s Eve party on December 31, 

2001, and she moved in with Appellant the next day. One month 

later, KS moved out. 

 On February 6, 2002, KS spent the evening with friends, one 

female and three male, at her apartment. During the evening, KS 

smoked marijuana and consumed fourteen to fifteen shots of 

alcohol. She got sick at about 11:15 p.m., but rejoined the 

group for five minutes before leaving the room to lie down. The 

last thing KS remembered before passing out was looking at the 

clock just after midnight. 

 The only other woman at the apartment, Ms. Dawn Montoya, 

asked the men to leave, and locked two doors to the apartment; 

after awakening KS, Ms. Montoya observed KS appear to lock the 
United States v. Freeman, No. 06-0833/AF 

3

front door. Once in her car, Ms. Montoya waited five to ten 

minutes, until the men drove away, before she left. 

 KS woke up in the shower with blood on her head, pain in 

her left hand, and the tip of her finger almost severed. She 

recalled that light from a flashlight was blinding her and a man 

was telling her that she had twenty-four minutes to shower and 

then she was “going to die.” At the time, she thought the 

person speaking to her was Private First Class (PFC) Bob Garmon, 

one of the friends she had been drinking with earlier that 

night. KS fled to her neighbor’s house and was taken to the 

hospital. 

 A physical examination at the hospital revealed KS had 

suffered a two-inch cut on her forehead, two black eyes, a 

broken nose, cuts on her head needing sutures, an amputated 

fingertip, bruises on her back and chest, abrasions on her 

forearms, other head injuries requiring staples, and significant 

blood loss. 

 The next day, KS told the police and Ms. Montoya that three 

Hispanic men had broken into her house and raped her. She 

identified PFC Garmon as a possible suspect. KS never 

identified Appellant as being at her home on the night of the 

attack. 

 A general court-martial with members convicted Appellant of 

making a false official statement and assault with a means or 
United States v. Freeman, No. 06-0833/AF 

4

force likely to cause death or grievous bodily injury. Articles 

107 and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§§ 907, 928 (2000). The convening authority approved 

Appellant’s sentence to a dishonorable discharge, confinement 

for five years, forfeiture of all pay and allowances, and 

reduction to the lowest enlisted grade. The United States Air 

Force Court of Criminal Appeals affirmed the findings and 

sentence. United States v. Freeman, ACM No. 35822, 2006 CCA 

LEXIS 160, 2006 WL 1976504 (A.F. Ct. Crim. App. Jun. 13, 2006) 

(unpublished). 

II. Admission of Evidence 

 Appellant asserts that the military judge erred by 

admitting both uncharged misconduct and his involuntary 

confession into evidence. We review a military judge’s decision 

to deny a motion to suppress evidence -- like other decisions to 

admit or exclude evidence -- for an abuse of discretion. United 

States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). “Abuse of 

discretion” is a term of art applied to appellate review of the 

discretionary judgments of a trial court. An abuse of 

discretion occurs when the trial court’s findings of fact are 

clearly erroneous or if the court’s decision is influenced by an 

erroneous view of the law. See United States v. Rader, 65 M.J. 

30, 32 (C.A.A.F. 2007). “Further, the abuse of discretion 

standard of review recognizes that a judge has a range of 
United States v. Freeman, No. 06-0833/AF 

5

choices and will not be reversed so long as the decision remains 

within that range.” United States v. Gore, 60 M.J. 178, 187 

(C.A.A.F. 2004) (citing United States v. Wallace, 964 F.2d 1214, 

1217 n.3 (D.C. Cir. 1992)). 

A. The Confession 

(1) Law 

 A confession is involuntary, and thus inadmissible, if it 

was obtained “in violation of the self-incrimination privilege 

or due process clause of the Fifth Amendment to the Constitution 

of the United States, Article 31, or through the use of 

coercion, unlawful influence, or unlawful inducement.” M.R.E. 

304(a), (c)(3); see Article 31(d), UCMJ, 10 U.S.C. § 831(d) 

(2000). The prosecution bears the burden of establishing by a 

preponderance of the evidence that the confession was voluntary. 

United States v. Bubonics, 45 M.J. 93 (C.A.A.F. 1996) (citing 

M.R.E. 304(e); United States v. D.F., 63 F.3d 671, 679 (7th Cir. 

1995)). The voluntariness of a confession is a question of law 

that we review de novo. Arizona v. Fulminante, 499 U.S. 279, 

287 (1991); United States v. Bresnahan, 62 M.J. 137, 141 

(C.A.A.F. 2005). 

 We examine “the totality of the surrounding circumstances” 

to determine “whether the confession is the product of an 

essentially free and unconstrained choice by its maker.” 

Bubonics, 45 M.J. at 95. 
United States v. Freeman, No. 06-0833/AF 

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In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the 

totality of all the surrounding circumstances -- both 

the characteristics of the accused and the details of 

the interrogation. Some of the factors taken into 

account have included the youth of the accused, e.g., 

Haley v. Ohio, 332 U.S. 596; his lack of education, 

e.g., Payne v. Arkansas, 356 U.S. 560; or his low 

intelligence, e.g., Fikes v. Alabama, 352 U.S. 191; 

the lack of any advice to the accused of his 

constitutional rights, e.g., Davis v. North Carolina, 

384 U.S. 737; the length of detention, e.g., Chambers 

v. Florida, supra; the repeated and prolonged nature 

of the questioning, e.g., Ashcraft v. Tennessee, 322 

U.S. 143; and the use of physical punishment such as 

the deprivation of food or sleep, e.g., Reck v. Pate, 

367 U.S. 433. In all these cases, the Court 

determined the factual circumstances surrounding the 

confession, assessed the psychological impact on the 

accused, and evaluated the legal significance of how 

the accused reacted. Culombe v. Connecticut, supra, 

at 603. 

Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (concerning 

voluntariness of consent to search) (footnote omitted); United 

States v. Ellis, 57 M.J. 375, 379 (C.A.A.F. 2002) (plurality 

opinion). 

 If we find the confession involuntary, we must set aside 

the conviction unless we determine the error in admitting the 

confession was harmless beyond a reasonable doubt. Fulminante, 

499 U.S. at 285. 

(2) Discussion 

 Appellant neither contests the military judge’s findings, 

nor asserts that he was not advised of his Article 31, 

UCMJ/M.R.E. 305 rights or that he did not knowingly and 
United States v. Freeman, No. 06-0833/AF 

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intelligently waive those rights. Instead, Appellant avers that 

his confession was obtained by the interrogators’ “use of 

coercion, unlawful influence, or unlawful inducement,” Article 

31(d), UCMJ; M.R.E. 304(c)(3), and that the military judge 

incorrectly applied the law to the facts of this case. He 

claims his will was overborne by the following: 

(1) The length of the interview; 

(2) The interrogators’ intimidation of Appellant by 

invading his personal space; 

(3) The interrogators’ use of the following lies, threats, 

and promises: 

(a) That they would tell Appellant’s commander 

whether or not he cooperated; 

(b) That witness and fingerprint evidence 

contradicted his denials; 

(c) That the sooner they completed the interrogation, 

the sooner everyone could go home and Appellant could 

get on with his life; 

(d) That they would turn Appellant over to civilian 

authorities if he did not cooperate; 

(e) That civilian punishment would be harsher, 

especially since the victim was a civilian; and 

(f) That he would be sent to jail for a long time if 

he did not cooperate. 
United States v. Freeman, No. 06-0833/AF 

8

 To determine the voluntariness of Appellant’s confession, 

we apply the two-part test from Schneckloth. 

(a) The characteristics of the accused favor a finding of

voluntariness. 

 The military judge found that Appellant was a twenty-threeyear-old E-4 when he was first questioned by Special Agent (SA) 

James Bogle of the Air Force Office of Special Investigations 

(AFOSI) on March 8, 2002. Appellant was advised of his rights 

to counsel and to remain silent, and waived those rights. 

Appellant personally prepared a seven-page typed statement in 

which he revealed the nature of his relationship with KS, but 

denied any wrongdoing or knowledge of the attack. Appellant 

also agreed to a polygraph examination. Between the first 

interview and the March 21, 2002, polygraph examination, 

Appellant had thirteen days to seek counsel or decline further 

interviews. He did not do so. There was no evidence that he 

was not of average intelligence, had not completed high school, 

could not read and write, or was in any way mentally impaired. 

Appellant claimed he had six hours of sleep before reporting for 

the polygraph and denied any fatigue, hunger, thirst, or other 

problems. He never complained about the process, never asked 

for an attorney, never asked to stop the interview or leave, or 

in any other way indicated that he felt coerced or pressured 

into making a statement. 
United States v. Freeman, No. 06-0833/AF 

9

(b) The details of the interrogation, while less definitive, 

also favor a finding of voluntariness. 

 At 9:06 a.m. on March 21, 2002, when Appellant presented 

himself at the AFOSI office for the polygraph examination, SA 

Steven Larson advised Appellant of his rights. Appellant 

acknowledged those rights, waived them, and agreed to answer 

questions. SA Larson explained a form consenting to a polygraph 

which contained an additional rights advisement. Appellant 

waived his rights in writing and consented to the examination. 

 During the pre-polygraph interview, which took 

approximately one hour, SA Larson advised Appellant of the 

procedures for administering the polygraph and requested 

personal, medical, and psychological information from Appellant. 

Appellant was then given a twenty-minute break. 

 After the first test, which took thirty minutes (from 10:26 

a.m. to 10:58 a.m.), SA Larson gave Appellant a one-hour break 

so SA Larson could analyze the charts. Appellant, permitted to 

leave the interview room, went outside and smoked. When SA 

Larson returned, he informed Appellant that the results were 

“indiscernible” and he would have to retest. Appellant agreed 

to a second exam which was conducted between 11:52 a.m. and 

12:16 p.m. After the second polygraph exam, Appellant was given 

another break, until 12:45 p.m., while SA Larson reviewed the 
United States v. Freeman, No. 06-0833/AF 

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charts. SA Larson concluded that Appellant was deceptive with 

regard to his denial of any knowledge of KS’s injuries. 

 When the interview resumed at 12:45 p.m., SA Larson 

rearranged the furniture in the room so that Appellant was 

directly in front of him. He told Appellant that the polygraph 

exam results indicated he had been deceptive. Here, the 

interview turned into more of an interrogation, but SA Larson 

did not shout or curse at Appellant. After an hour, there was a 

seven-minute break, during which time Appellant was given water. 

After the break, SA Bogle took over the questioning. SA Bogle 

began by asking if Appellant understood he was still under 

rights advisement; Appellant responded affirmatively. At 3:03 

p.m., they took another break. SA Larson left and SA Scott Mann 

joined SA Bogle. The interview continued from 3:40 p.m. until 

5:30 p.m. and then from 5:50 p.m. until 6:10 p.m. At that time, 

SA Bogle left Appellant alone with a computer so he could type 

out his statement. During the interrogation, SA Bogle raised 

his voice slightly above a conversational level only once. 

After he completed the statement, SA Bogle asked Appellant if he 

wanted to include the oral statements he had already made about 

the injuries shown in the photographs. Appellant included it in 

his statement, which was completed at 7:30 p.m. 
United States v. Freeman, No. 06-0833/AF 

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 During the interview, Appellant was offered food, water, 

and other beverages. He accepted the offer of water but 

declined any food or other beverages. 

 The military judge also found the following: 

 Over the course of the interview, SA Bogle 

suggested to the accused that everyone makes mistakes 

and the best thing to do is admit it and get it behind 

you. He promised the accused that if he cooperated, 

they could tell his commander about it and it might 

help. On the other hand, he told the accused, if you 

don’t tell the truth, the case will go downtown and 

with a civilian victim you could get five years in 

jail. When the accused denied being out that night, 

SA Bogle lied to him and told him a witness saw him 

out. He also told the accused that his fingerprints 

were found at the scene. 

 There has been considerable controversy over the treatment 

of threats and promises in assessing the voluntariness of a 

confession. Before Fulminante was decided in 1991, a confession 

“‘obtained by any direct or implied promises, however slight,’” 

was not voluntary. Bram v. United States, 168 U.S. 532, 542-43 

(1897) (quoting 3 H. Smith & A. Keep, Russell on Crimes and 

Misdemeanors 478 (6th ed. 1896)). Thus, in Lynumn v. Illinois, 

372 U.S. 528, 534 (1963), the Supreme Court held that a 

confession was coerced when the defendant was told she could 

lose her welfare payments and the custody of her children, but 

if she cooperated the police would help her and recommend 

leniency. The Court reiterated that a coerced confession 
United States v. Freeman, No. 06-0833/AF 

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required reversal of the conviction even when there was 

sufficient other evidence to convict. Id. at 537. 

 Since Fulminante, however, promises are considered only a 

factor in the equation; they are not of themselves determinative 

of involuntariness. See, e.g., United States v. Gaskin, 190 F. 

App’x 204, 206 (3d Cir. 2006); United States v. Jacobs, 431 F.3d 

99, 109 (3d Cir. 2005). Similarly, lies, threats, or 

inducements are not determinative either. See, e.g., United 

States v. Mendoza, 85 F.3d 1347, 1350-51 (8th Cir. 1996) 

(holding that an investigator’s threat of immediate arrest if he 

did not cooperate did not overbear the accused’s will); 

Ledbetter v. Edwards, 35 F.3d 1062, 1069-70 (6th Cir. 1994) 

(holding that an investigator’s use of a series of psychological 

ploys, including lying about evidence, staging a phony 

identification, and showing charts and graphs allegedly linking 

the accused to the crime did not result in an involuntary 

confession); Welch v. Butler, 835 F.2d 92, 95 (5th Cir. 1988) 

(holding statements resulting from investigator’s three-hour 

prayer session did not make the accused’s confession 

involuntary). After all, as the “Miranda rules were issued to 

counter-balance the psychological ploys used by police officials 

to obtain confessions,” the presence of those ploys could hardly 

be considered to per se result in an involuntary confession. 

United States v. Leiker, 37 M.J. 418, 420 (C.M.A. 1993). 
United States v. Freeman, No. 06-0833/AF 

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 Appellant’s argument relies, to a great extent, on two 

cases: United States v. Bubonics, 40 M.J. 734 (N.M.C.M.R. 

1994), aff’d, 45 M.J. at 93, and United States v. Sennett, 42 

M.J. 787 (N-M. Ct. Crim. App. 1995). In both cases, the lower 

court held that the prosecution failed to establish the 

voluntariness of the confession under a totality of the 

circumstances. In Bubonics, investigators employed a goodguy/bad-guy technique and threatened the accused with arrest by 

local authorities unless he cooperated. 45 M.J. at 93. One of 

the investigators “stormed into the room; vented his wrath; 

‘yell[ed] at the accused that he didn’t have time for the 

accused, and that he could sign a warrant to have him arrested 

by the [local civilian police]’; and ‘slammed the door when he 

left the door way . . . .’” Id. at 96. The Judge Advocate 

General of the Navy certified the issue to this Court and, with 

little explanation, we adopted the lower court’s opinion on this 

issue. Id. In Sennett, the accused waived his rights and made 

a brief oral statement to investigators. 42 M.J. at 790. 

Investigators then confronted him with a “booking order” for a 

local civilian jail and “told [him] that a written statement was 

needed or he could ask for a lawyer and be taken to the county 

jail.” Id. After the accused made the written statement, the 

investigators delivered him to that civilian jail for 
United States v. Freeman, No. 06-0833/AF 

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incarceration without a warrant or a written agreement required 

by Navy regulations. Id. at 789. 

 We do not find these cases controlling in the context of 

this case. As the application of the totality of circumstances 

standard rests with the particular facts of each case, a threat 

to turn an accused over to civilian law enforcement is but one 

factor to weigh. We do not examine each of the facts separately 

but rather in conjunction with all the other facts in the case. 

Ellis, 57 M.J. at 379 (citing United States v. Martinez, 38 M.J. 

82, 87 (C.M.A. 1993)). Bubonics and Sennett offer little in the 

form of controlling precedent on how to weigh the facts in this 

particularly distinct situation. 

 Our decision in Ellis is instructive. In that case, the 

accused had confessed to abusing his child. 57 M.J. at 378. We 

held that his confession was voluntary despite the detective’s 

warning that there was sufficient evidence to arrest both the 

accused and his wife for child abuse, potentially resulting in 

their other children being removed from their home and being 

placed in foster care. 

 While the detectives’ advice to appellant 

concerning removing the remaining children from the 

home may have contributed to his confession, the mere 

existence of a causal connection does not transform 

appellant’s otherwise voluntary confession into an 

involuntary one. . . . 

 

 Not only must we examine the circumstances 

surrounding the taking of the statement regarding what 
United States v. Freeman, No. 06-0833/AF 

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was done or said, but we must also examine what was 

not done or not said. There were no threats or 

physical abuse. The questioning did not continue for 

days; there was no incommunicado detention, and no 

isolation for a prolonged period of time. 

 . . . . 

 Viewing all the facts taken together, we agree 

with the Court of Criminal Appeals that they were not 

“so inherently coercive as to overcome the appellant’s 

will to resist.” 

Id. at 379 (citations omitted). 

 In the instant case, the interrogation may have lasted 

almost ten hours, but Appellant had several breaks in which he 

left the interrogation room, went outside, and smoked. He was 

provided water and declined offers for other food and drink. 

Admittedly, the agents lied to Appellant: They claimed to have 

witnesses who saw him out that night and that his fingerprints 

had been found at the crime scene. They advised him they would 

tell his commander whether he had cooperated and threatened to 

turn the case over to civilian authorities, where he would face 

stiffer punishment, if he did not cooperate. But he was neither 

physically abused nor threatened with such abuse. Although he 

made admissions to law enforcement agents before he prepared the 

written statement, he prepared the statement himself, outside 

the presence of any investigator. Under the totality of the 

circumstances, Appellant’s confession was voluntary. 
United States v. Freeman, No. 06-0833/AF 

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B. Uncharged Misconduct 

 Over defense objection, the military judge admitted into 

evidence three alleged incidents of Appellant’s prior misconduct 

toward KS: (1) grabbing KS by her purse and swinging her 

around; (2) following KS into a bathroom to finish an argument, 

at which point she slapped him to get him out of the bathroom; 

and (3) arguing and shoving each other over some french fries. 

The Air Force Court of Criminal Appeals held that the military 

judge erred in selecting the particular reason for admitting the 

evidence and in providing a confusing instruction to the 

members. Freeman, 2006 CCA LEXIS 160 at *9-*10, 2006 WL 1976504 

at *4. Nevertheless, the court concluded the error was 

harmless. 2006 CCA LEXIS 160 at *9-*10, 2006 WL 1976504 at *4-

*5. 

 Assuming the military judge erred in admitting the 

evidence, we agree with the Court of Criminal Appeals that the 

error was harmless. The three acts are relatively minor and, in 

the context of the entire record, and in particular Appellant’s 

confession, we are convinced such error did not have a 

substantial influence on the members’ verdict. United States v. 

Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007) (citing Kotteakos v. 

United States, 328 U.S. 750, 764-65 (1946)). 
United States v. Freeman, No. 06-0833/AF 

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III. Expert Consultant 

A. Facts 

 Before trial, Appellant’s counsel asked the convening 

authority to appoint, at government expense, a defense 

confidential consultant in sociology, with a specialty in police 

interrogation techniques. Appellant claimed he needed the 

assistance of an expert to analyze the oral and written 

statements purportedly made by Appellant, to assist in 

interviewing the AFOSI agents, to help formulate crossexamination questions, and to advise the defense on 

interrogation techniques. He claimed this assistance was 

necessary to help counsel determine whether Appellant’s “rights 

were violated and whether such interrogation techniques 

overwhelmed SrA Freeman’s free will.” He indicated that the 

expert might be called to testify about interrogation 

techniques, their purpose, and their potential coercive effect. 

The convening authority disapproved the request. 

 At trial, the defense counsel renewed the request for an 

expert consultant in police interrogations but modified the 

reasons for the request. 

While the defense intends to raise the issue of 

whether or not the [sic] SrA Freeman’s “statement” was 

voluntary in another motion, the defense does not seek 

to focus the expert’s assistance on whether the 

statement is voluntary. The focus of the request is 

on interrogation techniques not SrA Freeman’s 

personality or compliant nature. . . . Nowhere in the 
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listed duties is the expert requested to do 

“personality tests” on SrA Freeman to explore his 

tendency toward being compliant or over [sic] 

suggestible. Quite to the contrary, the request 

details duties consistent with a focus on the 

interrogation techniques used in this case. . . . 

Furthermore, we are not at this time requesting that 

this expert testify concerning his or her 

findings . . . . 

 . . . . 

 . . . This expertise is necessary for the 

defense team to determine the likelihood that SrA 

Freeman confessed to a crime he did not commit. . . . 

to reconstruct the interrogations, so the defense team 

can formulate an understanding as to why SrA Freeman 

made statements regarding a crime he did not commit. 

 The military judge denied the motion. He first explained 

the “science” of false confessions as follows: “(1) the police 

already have incriminating evidence; (2) he’ll be convicted no 

matter what he does; and (3) cooperation and admission will lead 

to leniency; he is much more likely to tell interrogators what 

he thinks they want to hear.” The military judge concluded that 

“none of the factors/practices identified [in an article] by Dr. 

Ofshe [one of the proponents of the theory] are particularly 

complex or counter-intuitive” and counsel “should require no 

expert assistance or testimony to elicit the pertinent facts and 

argue to the finder of fact why those facts make their client’s 

admissions to the [AF]OSI unreliable . . . .” 

 On appeal before this Court, Appellant suggests he needed 

the expert assistance to challenge the admissibility as well as 
United States v. Freeman, No. 06-0833/AF 

19

the reliability of the confession. He focuses on the 

possibility that the expert would testify on the motion or on 

the merits. 

B. Law 

 “[S]ervicemembers are entitled to investigative or other 

expert assistance when necessary for an adequate defense.” 

United States v. Garries, 22 M.J. 288, 290 (C.M.A. 1986); accord

Bresnahan, 62 M.J. at 143 (citing United States v. Gunkle, 55 

M.J. 26, 31 (C.A.A.F. 2001)). The mere possibility of 

assistance is not sufficient to prevail on the request. 

Bresnahan, 62 M.J. at 143. Instead, the accused has the burden 

of establishing that a reasonable probability exists that (1) an 

expert would be of assistance to the defense and (2) that denial 

of expert assistance would result in a fundamentally unfair 

trial. Gunkle, 55 M.J. at 31-32 (citing United States v. 

Robinson, 39 M.J. 83, 89 (C.M.A. 1994)). To establish the first 

prong, the accused “must show (1) why the expert assistance is 

needed; (2) what the expert assistance would accomplish for the 

accused; and (3) why the defense counsel were unable to gather 

and present the evidence that the expert assistance would be 

able to develop.” Bresnahan, 62 M.J. at 143. We review the 

military judge’s decision for an abuse of discretion. Id. 
United States v. Freeman, No. 06-0833/AF 

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C. Discussion 

 Appellant failed to establish the third part of the first 

prong of the test. We will examine the parts separately. 

(1) Why the expert assistance was needed: 

 At trial, Appellant claimed that the expert assistance was 

needed because “[d]efense counsel does not possess the requisite 

knowledge or expertise in this area to ensure that the right 

questions are asked and the correct themes developed to paint a 

realistic picture of what happened during the interrogation and 

the tactics used by the interrogators.” 

(2) What the expert assistance would accomplish for the 

accused: 

 At trial, the defense shifted the focus of the expert’s 

utility away from voluntariness of the confession to what 

happened during Appellant’s interrogation: 

While the defense intends to raise the issue of 

whether or not the [sic] SrA Freeman’s “statement” was 

voluntary in another motion, the defense does not seek 

to focus the expert’s assistance on whether the 

statement is voluntary. The focus of the request is 

on interrogation techniques not SrA Freeman’s 

personality or compliant nature. . . . 

 . . . . 

 . . . This expertise is necessary for the 

defense team to determine the likelihood that SrA 

Freeman confessed to a crime he did not commit. . . . 

to reconstruct the interrogations, so the defense team 

can formulate an understanding as to why SrA Freeman 

made statements regarding a crime he did not commit. 
United States v. Freeman, No. 06-0833/AF 

21

The defense included in the motion a citation to an article by 

Dr. Richard Ofshe, which discussed the psychology behind 

interrogation techniques and how they could lead to false 

confessions. 

(3) Why the defense counsel were unable to gather and present 

the evidence that the expert assistance would be able to 

develop: 

 At trial, Appellant claimed as follows: 

[T]he defense team does not possess the academic or 

practical experience to perform the necessary analysis 

the expert consultant would be able to perform. 

Reading the literature on the subject and interviewing 

the interrogators is not sufficient to ensure that SrA 

Freeman is able to present a defense in this 

area. . . . It is absolutely vital that an expert in 

the field be appointed to assist the defense in 

knowing which questions to ask and which areas to 

address during their interviews and cross examination. 

An expert who has vast experience in this area of 

science brings elements and abilities to the defense 

team that we can simply “not learn in books.” 

 This is not the first time this issue has been before this 

Court. In Bresnahan, the accused confessed to shaking his 

three-month-old baby in a manner that eventually caused death 

after being told that, in order to save the baby’s life, the 

doctors need to know exactly what he had done. 62 M.J. at 140. 

At trial, he asked for expert assistance to determine if his 

confession was unreliable because of the techniques employed by 

the interviewing detective. Id. at 139. We accepted arguendo 

that the expert “possessed knowledge and expertise in the area 

of police coercion beyond that of the defense counsel and that 
United States v. Freeman, No. 06-0833/AF 

22

defense counsel could benefit from his assistance.” Id. at 143. 

Nevertheless, we held that the military judge did not abuse his 

discretion in denying the defense request for expert assistance. 

Id. The defense counsel never established why they themselves 

were unable to gather and present any evidence that the expert 

would have been able to develop. Id. at 143-44. 

 We accept arguendo the consultant’s expertise. Although it 

is by no means clear that the expert would add anything that 

could not be expected of experienced defense counsel, we also 

accept arguendo that Appellant’s counsel could benefit from the 

consultant’s assistance. Nevertheless, we conclude that the 

military judge did not abuse his discretion in denying the 

defense request for expert assistance because Appellant failed 

to establish the necessity for that assistance. After all, what 

defense counsel really wanted was knowledge of interrogations 

that they could have obtained themselves. They failed to 

establish why they were unable to gather the relevant 

information and cross-examine the investigators on their 

interrogation techniques and their use of those techniques in 

eliciting a confession. 

IV. 

 The decision of the United States Air Force Court of 

Criminal Appeals is affirmed.