U. Where the i would look and i would think how are we hearing e a motion to dismiss a Sexual Assault case how are we even hearing this. Why are we hear . That is not a credibility determination nap is just a base level facts, have they met this burden, if youre there that tells me that something went really wrong with your case or that you didnt fully consider if this case should see the inside of a courtroom. To have it happen once, to me, is problem matic. That is an ethical call that the lawyer ought to be making. I sat as a judge a number of times ruling on motions where both sides would present evidence and facts, the motion was when did article 32 change . That is a fact. That is a fact. Experienced defense prosecutors did not give anyway fact. If done intentionally, thats an ethical violation. I dont think it was done intentionally so there is no ethical follow up, but it is an ascertainable fact. How i know, i googled, it exists. But the reality is that at the end of the day yes, i think it would make a huge difference in having a standard. At some point in time it doesnt fix all of the issues that are out there. I want to make sure there is a clarifying point. I think theyre amazing talented people. Im not be smerching that program. Ultimately if they go on to be older svps, they will go on to make that some work. I would just sort of agree with what has been said so far about the standard and just refer back to our purpose. If it is to get more convictions on Sexual Assault cases than having a higher standard and reducing the number of bad cases that judges hear and panels h r hear. If the object is to give a bull back the myths of uncertainty that the public might have about the military Justice System by having all cases go to trial and live with the results then im not sure a higher standard will achieve that goal. Okay, thank you for being here. I just, before i ask my question i want to be the dissenting voice that i dont think that we can say that your acquittal rate is any better or worse than the civil world because we dont have in a comprehensive data and everyone always thinks theyre taking cases that the other doesnt take and i think that is true a lot and you have certainly sat in places where you know your civilian jurisdiction hasnt taken something that you have. But for me i want to put it out there that i dont think youre different than any other standard right now. My question is on the article 32 and since a lot of you also have civilian experience you know that preliminary hearings in the civilian world are more than what you scribed the Current Article as not necessarily a full and open discovery piece. Witnesses are called, but they can be. Can you envision a system, a process in the article 32 where it is different than it is now . It is not a paper . But it is also a full hearing where youre determining issues that are not necessarily relevant at the probable cause standard. And if there was admissible evidence and other things to go forward, can you envision a hearing that would be protective of victims and would be fairer to the process now . What im hearing now about the paper, that doesnt seem to be satisfactory based on your experience. I will start, you seem to be looking at me. So it would be a great opportunity to cross examine a victim. Im not talking about that necessarily because victims decline, it is their right to be present at 32 and i have seen some that are willing to come in, but when you use a paper case, when the is the agents spre sp interpretation of what was said i think there was just a change in the volume but theyre i lost my train of thought there for a moment. When the agent puts on just the report, which may or may not have the testimony or the statement or the verbal or the audio or a video, then we just get a summary. Which is not helpful in the process. And when you have an agent that declined to come in because they view themselves as being protected under the rule as a civilian and i disagree. I believe if that came to me as a judge, that i heard a motion for a new 32 because the agent didnt come in claiming they were a civilian, i believe that would have been something i sent back for a new 32. I think the civilian Law Enforcement who work for the department of the navy cannot claim theyre a viflicivilian a they dont have to testify. I have been part of processes where the only person that came in was the police officer. At least there was testimony that while it is not a full discovery avenue they presented some perhaps defense evidence that might go to that determination of probable cause. If you are if as a defense attorney you dont have that ability, then all that needs to be presented is that little bit of evidence, and we know that is a fairly low standard. Do i think it needs to be back to the old days when it was an allday 32 and we paraded the witnesses in, noo, but to claim that any witness that claims and this seems to be from my perspective now what is happening, the government claims anyone that testifies, if their name is in the report and they have given a statement, their testimony is cumulative. I disagree that is always the case. I think as a defense attorney when i talk to witnesses and interview people, there are things that i find. The government has said their cumulative and many times the officer will agree, i have a report i dont need the person. I think something in between. You need to explore some of the issues. Its not a full discovery tool like it used to be, but the defense does still have an opportunity to put on witnesses. Its in the rule. And its not happening, and i think if they had that opportunity it would be a more thorough determine for that commander that has to make that call when they receive a report if that probably cause was met. Met but dont go forward and here is why. Or met but dont go forward youll lose. The objective should be present the case if its going to trial, let the process take place. And the objective of a 32 should not be to perfect the government case or poke enough holes so it wont get probably cause, but at least so there is an evaluation of the evidence. The Standard Drive behavior, i dont think any prosecutor will show any more cards than he has to to meet that standard. If you think that more needs to be done or come out, then we need to change the standard. I think any change to the rules prosecutors will adapt and overcome. I think any modification is easily enough implemented. I think we have seen changes in the last five years that everyone has handled with a plum. I think it is certainly doable. Just to follow up, the civilian standard at a hearing is probable cause. Would it have to be a change in the standard or do you think that the air force or the people that youre saying you have seen in the courtroom could change the behavior. Probably change the underlying rules as well. They mentioned the cumulativeness standard. Maybe you tighten that up, and you have a tighter definition of what is cumulative, or you eliminate it all together. Or you have military judges that feel more comfortable standing up to the prosecutor and saying i want to hear from this witness. I think a more robust 32 hearing would be more helpful for the decision who makes a decision about referral has the most information to make an informed decision. And i dont know, im a simple guy, i dont see how that is a negative thing. I think we think is a Public Benefit. But i think we think there is a Public Benefit to this being able to be on tv today. I joked with jeff that if one of the good reasons that we dont have tvs in the courtroom, if that gentleman did what he did i would have found him in content. This has a Public Benefit to being out there, what Public Benefit is there to a paper case and what does it do to the presumption in society that this is really not a Justice System. This is the first point. The sect point, and i know they are as numeric as can be. This table will love me and that table will hate me. I would look into how often in Sexual Assault cases the 32 is waived by the defense because they dont think it is fair. They dont think there is any benefit and they dont think good can come of it. I would check that. If i judge doesnt have let me say that more positively, the judges here at this table would have no problem saying no, ware going to hear this case. There is no doubt and i dont know the specifics of very, very public miskrususes. There has been misuses and abuses. I think there is a middle ground, and i think to the degree you can get somebody that knows what theyre doing. Trained for what theyre doing. A major or a Lieutenant Colonel or a colonel and youre going to say im going to allow this or no you need more, i think it makes a difference. It does matter. Im sorry to switch topics for a second. What do you think of the ability of Defense Council to get experts and if that should change. I have preached on this for my entire time in the military. I think it should be changed. I think it is difficult, impossible, for the Defense Council to get experts. I think having it approved by the prosecutor is the wrong answer. I think the defense bar, tds should be funded and they should have at the Headquarters Level a officer in charge of dispensing money for expert witnesses and the chief of tbs is the adult in the room to make sure there are no abuses. And of course the judge will do that, too. He ultimately gets to say whether or not an expert gets to testify or not. But i think that is a better dynamic. A better system for experts. So i agree with all of that. I would just say this. I think this has changed, im not sure what is going on in the army with the trial Defense Services, but sometimes you need an expert to come in and say this is whatly provi i will pro. I know back in the day that was a big conversation. We cant get there without and it is the rare dedicated expert that is willing to come in and testify that they need to testify, and for free. There needs to be a pot of money that the defense can go to, and i think now with investigators also. So that you can establish that kind of baseline case for that a additional assistance. I think the Current System has worked well in the air force. I think more often than not, the experts were willing. I think im saying that it works in the air force and not in another service indicates that the process is not as good as it should be. It should not defend on one Services Implementation of it. And to that extent, haviining tl Defense Services in it. He doesnt agree with his bosses decision, but i think you will see fewer of those than you do disagreeing with the prosecutor as he advised the convening authority on granting that expert. I have tried a case. And i will say that i was surprised because it came from the navy that the air force did it in my view so well. Tr there was multiple experts granted but in the other services we struggle as Defense Council to get experts just forpurposes of consultation. Do we need an expert, and more often than not they deny that. So i think for Defense Council, that is a difficult road for them when they are trying to evaluate their case, they think there is something there, theyre trying to find somebody that might talk to them for free, and we all have sort of that group of experts we can caulk out to for a five minute conversation, they wont charge us, but to do the evaluation they need to be appointed and authorities resit. I do a lot of appellant work now and i read records of trial. Im often shocked at how many pages of transcript im reading with the government fighting over experts. Hundreds and hundreds of pages on motions. And the court not granting the experts or granting the expert after a day of testimony and fighting back and forth, and i think the system needs to be changed to allow the defense to have that opportunity to seek consultation. We know that the government has it, right . I would say maybe even in the navy medical system, many of the experts dont want to be involved and that presents trouble for the government as well. I think the Current System does need to be improved upon. Why dont they want to be involved . I dont think anybody relishes the idea of having to testify in court no matter what side youre on. It takes away from what theyre doing on their day today. Our military medical system is over stressed just with patient care. You see what is happening with dependents and retirees, their not necessarily seeking treatment any more because they cant. There are not enough doctors. Not enough time, so now you have a doctor who sees patients and has to be an expert and they just dont want to get involved. There are some that love it and they want to, but i would say that often times you will find the medical because theyre stressed on just doing patient care and they dont want to be involved. We look to the civilian population and there are plenty out there that do this for a living. And they have a pool of who they are sharing with the other services as well if is hard to find active duty to be involved. That is a great segues. So i am interested in hearing from all of you, whether or not you belief that experts are being uses effectively at trial. So in the navy, i would say that in the Sexual Assault indications there would be experts involved in every case they have ever tried whether or not i was a judge, Trial Council, Defense Council, there was some sort of expert involved. There is a phrase that is often batted about, cases are often so much more complicated today. I tend to disagree that the cases are more complicated than they were 20 years ago. With computer, cell phones, the snap chat where things disappear. Maybe that side is a little more complicated. And if you have council that dont understand, that could be problematic, and i see it in transcripts that i read. I wont tell you my age, by my 16 and 18yearold kids are way more proficient on the iphone than i am. If im a judge and i have that difficulty, we can imagine that maybe some of the council do as well. I think for the most part okay. Sbu it a fair Playing Field . I would say no. The expert would often times, the court might say well, youre you should be experiencing these cases. I know when i seem seek experts, they say you were a judge for nine, youre fully versed in this but i cant testify, so they miss that part that i need a consultant to help me that may turn into an expert, but theyre denying because of the experience level of the council. Admittedly it shows i should educate myself, but that only goes so far and often times we need an expert. Most of what i see from experts is that theyre helpful. Theyre working an equal number of cases on the prosecution and defense side which gave them great credibility. I can recall a few cases where the experts were advocates in disguise, and that was very easily revealed throughout the course of the Court Marshal and they were not effectively employed and they had a really negative impact on the overall outcome of that case. By and large many of the issues that were dealing with particularly in Sexual Assault cases, im more enlightened by hearing from experts. Alcohol is almost always involved. The education that i have gotten on issues like blackout, the effects of alcohol on memory, those are invaluable to a judge sitting in a Court Marshall. So my experience has been that it has been very effective and very helpful, and in the experts that i see on a regular basis, they have been very professional and neutral, tell it as it is, and very helpful. I agree with what wes said. When an expert gets to trial, my experience has been that most of the time, a vast majority of the time, defense and Trial Council do a good job of getting the pertinent information out of that expert in a good way in a good presentation. I think they struggle and i think that is because the expert helps them design their direct or crossexamination. But i think they struggle in figuring out in how they need an expert in how to get the expert. And that is a product of lack of experience. I think the hqe program, i dont no if the air force or the other but i think particularly in the army they do a great job helping Young Council understand the expert process and helping them to make the decision about whether or not a expert would make their case or not. I they is the problem they struggle with the most. Do i really need an expert or am i hyper sensitive about ini ineffective council. I think discernment matters, right . Not just do i need an expert, but what are the consequences to the timeline of my case if i call an expert, because you will get a question defense for an opposite expert, and what are the consequences in terms of evidence that is now admissible or approaching that are now admissible that you dont always see that. I would say just to echo again, the testimony that i have heard in my courtrooms from local experts has almost uniformly been when given and professionally done. Usually professionally cross examined. Sometimes i wondered huh, why did he or she testify . Especially when im the fact finder, what did this add to in terms of the development of the case. I had instances where experts have been dispositive. It just strikes me always with Young Council, judges like to learn. Sitting on the bench every day can get kind of dry, learning and developing an understanding of how this works, a good expert is a good educator. So that has certainly been interesting. I want to give you some information. I had the honor to sit as a Defense Council in a capital murder case. And it is different, and they get pretty much like a candy store of experts. You get all you want. It is striking to me to see the all you want versus we cant get this expert to trial to give both sides an opportunity. Rarely in my experience and the others can certainly correct me. Rarely in my experience becau