                         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


     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


                                   2
United States v. Freeman, No. 06-0833/AF


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


                                  3
United States v. Freeman, No. 06-0833/AF


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


                                   4
United States v. Freeman, No. 06-0833/AF


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.


                                      5
United States v. Freeman, No. 06-0833/AF


     In determining whether a defendant’s will was over-
     borne 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



                                 6
United States v. Freeman, No. 06-0833/AF


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.


                                   7
United States v. Freeman, No. 06-0833/AF


     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-three-

year-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.



                                  8
United States v. Freeman, No. 06-0833/AF


(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




                                 9
United States v. Freeman, No. 06-0833/AF


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.




                                 10
United States v. Freeman, No. 06-0833/AF


     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




                                11
United States v. Freeman, No. 06-0833/AF


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).


                                12
United States v. Freeman, No. 06-0833/AF


     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 good-

guy/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




                                 13
United States v. Freeman, No. 06-0833/AF


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


                                14
United States v. Freeman, No. 06-0833/AF


     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.




                                  15
United States v. Freeman, No. 06-0833/AF


                      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)).




                                  16
United States v. Freeman, No. 06-0833/AF


                     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 cross-

examination 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


                                  17
United States v. Freeman, No. 06-0833/AF


     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



                                18
United States v. Freeman, No. 06-0833/AF


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.




                                     19
United States v. Freeman, No. 06-0833/AF


                          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.




                                 20
United States v. Freeman, No. 06-0833/AF


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


                                21
United States v. Freeman, No. 06-0833/AF


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.




                                22
