dissenting:
Even affording trial defense counsel the “strong presumption that [their] conduct falls within the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, under the facts of this case, their failure to procure the services of an expert in sexual assault examinations amounted to ineffective assistance that prejudiced the appellant’s case. I therefore dissent from the majority opinion.
In preparing a defense, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691, 104 S.Ct. 2052. See also United States v. Sales, 56 M.J. 255, 258 (C.A.A.F.2002); United States v. Hammer, 60 M.J. 810, 820 (f rev) (A.F.Ct.Crim.App. 2004) (“Defense counsel ... have an ethical obligation to properly investigate the charges against their client in formulating trial strategy.”); Richter v. Hickman, 578 F.3d 944, 946 (9th Cir.2009) (“At the heart of an effective defense is an adequate investigation. Without sufficient investigation, a defense attorney, no matter how intelligent or persuasive in court, renders deficient performance and jeopardizes his client’s defense.”); Jennings *606v. Woodford, 290 F.3d 1006, 1014 (9th Cir.2002) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052) (“[Attorneys have considerable latitude to make strategic decisions about what investigations to conduct once they have gathered sufficient evidence upon which to base their tactical choices.”). A counsel’s failure to conduct sufficient investigation may violate the appellant’s Sixth Amendment rights. United States v. Scott, 24 M.J. 186, 192-93 (C.M.A.1987) (failure to investigate alibi defense and prepare for trial was ineffective); Holsomback v. White, 133 F.3d 1382, 1387-89 (11th Cir.1998) (holding that failure to conduct adequate investigation into medical evidence of sexual abuse was ineffective).
Based on trial defense counsels’ deficient pretrial investigation, I disagree with my colleagues’ conclusion that the decision to withdraw the request for an expert in exchange for limiting TB’s testimony was a legitimate trial strategy based on sound tactical reasoning. The defense team readily admitted in their motion to compel that they lacked expertise in evaluating sexual assault evidence, saying appointment of an expert consultant was:
[A] necessity in Defense preparation of this case. No member of the Defense team has received formal or informal training regarding forensic evidence collection from a complainant after an allegation of sexual assault. Defense consultant will be utilized to confirm the accuracy of the findings of Government’s SANE. Furthermore, said consultant will assist in identification and development of any favorable evidence that can be derived from the SANE report. Finally, if determined necessary, the consultant may assist as a witness to explain said favorable evidence to the court. Absent the appointment of such an expert, the Defense will be at a disadvantage to discover and explain favorable evidence derived from the SANE report. ... There is a reasonable probability that not ordering the appointment of such an expert would result in a fundamentally unfair trial. By depriving [the appellant] the opportunity to effectively challenge the Government’s case because his counsel are not experts in the fields of Sexual Assault Examinations, would violate his due process rights.”
(Emphasis added). Unfortunately, counsels’ judgments about the detrimental effects of not having an expert to guide them through unfamiliar terrain proved exceedingly accurate.
Despite their expressed concerns, trial defense counsel chose to forego the opportunity to secure an expert based on an assumption that TB’s testimony would not be harmful to the case. It is entirely unclear from the record on what basis they made such a conclusion. When exactly did it no longer become a “necessity” to have expert assistance during defense preparation of the case? In what way did counsel suddenly become knowledgeable in evaluating sexual assault reports and understanding the conclusions of experts who deal in a highly specialized area, when shortly before they told the military judge that failure to appoint an expert would result in a fundamentally unfair trial? How were they capable of “confirm[ing] the accuracy of the findings of Government’s SANE?” How did they abruptly overcome their stated disadvantage to identify and develop favorable evidence from the SANE report without expert assistance? More telling, how were they suddenly able to “effectively challenge the Government’s case” when they had received no formal or informal training regarding forensic evidence collection and analysis in sexual assault allegations?
Relying on nothing more than their admittedly uneducated gut-feeling and without so much as a single consultation with a sexual assault expert to substantiate their pre-trial opinion that TB’s testimony would be innocuous, counsel chose to withdraw the motion to compel. Under these circumstances, counsels’ decision cannot be justified as a legitimate trial strategy. See United States v. Gray, 878 F.2d 702, 711 (3d Cir.1989) (“[Cjounsel can hardly be said to have made a strategic choice against pursuing a certain line of investigation when [he] has not yet obtained the facts on which such a decision could be made.”); Beth A. Townsend, Defending the “Indefensible”: A Primer to De*607fending Allegations of Child Abuse, 45 A.F.L.REV. 261, 270 (1998) (“It is difficult to imagine a child abuse ease ... where the defense would not be aided by the assistance of an expert.”). See generally United States v. Tornowski, 29 M.J. 578, 580 (1989) (“There is little question that child sexual abuse cases often present a fertile, indeed, a necessary, area for expert assistance.”); Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir.2001) (“Defense counsel’s failure to consult an expert, failure to conduct any relevant research, and failure even to request copies of the underlying studies ... contributed significantly to his ineffectiveness.”).
While the majority is correct that defense counsel is not required to obtain an expert merely because the government has done so, the defense counsel’s failure in this regard is perplexing. The government’s direct evidence concerning the forcible anal sodomy charge consisted of SF’s allegations and TB’s testimony regarding her observations and personal opinion as to the cause of the injuries. Counsel certainly must have realized that TB’s conclusions were critical to the government’s case. TB provided the only effective corroboration of SF’s version of events. While it should have been obvious to the defense that a key prong of their strategy had to focus on diminishing the impact of TB’s testimony by discrediting her credentials and/or calling into question the legitimacy of her findings and conclusions, the record shows that did not occur. Furthermore, defense counsels’ explanation for not wanting to delay the case in order to prevent the prosecution from having additional time to find the two unfavorable witnesses fell flat when the military judge granted the government a two-month delay. At that point, any tactical reason not to seek expert assistance during the break in time was negated.8
Even accepting for the sake of argument that trial defense counsels’ decision to withdraw their motion to compel was plausibly reasonable, their failure to renew the request for an expert once TB’s testimony substantially changed from what they expected is indefensible. “Guessing wrong does not usually amount to incompetent representation. But being unprepared for the consequences of a wrong guess, when the issue is critical to the defendant’s case, may well amount to ineffective performance.” Richter v. Hickman, 578 F.3d 944, 957 n. 10 (9th Cir.2009). Such is the case here.
This is not a matter of second-guessing from the judicial replay booth. Both counsel readily admit they were caught off-guard by TB’s testimony. The SDC’s post trial affidavit stated:
When [TB] took the stand to testify, she described her findings as to anal trauma in surprisingly more provocative and aggressive ways than she had during our interviews. Her testimony at trial regarding the anal examination was more in line with how she had previously spoken to us about the vaginal trauma. Had she initially relayed this information to us in our previous interviews, we would not have waived our motion to compel [BO].
(Emphasis added). Likewise, in a post-trial affidavit, the ADC stated:
At trial, it appeared as though after learning [TB] would be prohibited from discussing the vaginal exam, she transferred her opinions regarding the extant and source of the damage from one part of the body to the other. [TB’s] comment, ‘... that you would not usually see any lacerations from consensual sodomy because that particular sexual act is for pleasure and not for pain ...’ was a drastically different position that [sic] previously provided in Defense *608interviews and at the Article 32[, UCMJ,] hearing.
Despite their surprise, when the need for expert advice regarding how to constructively challenge TB should have been abundantly clear, defense counsel did not take appropriate and reasonable steps mid-trial to remedy their error. Instead, counsel plunged ahead ineffectively trying to shake TB’s testimony, findings, and conclusions. Merely trying to cross-examine an expert on matters defense counsel acknowledge they were not conversant in (and could not be prepared for given they thought the expert was going to testify differently), cannot be considered effective assistance. Knott v. Mabry, 671 F.2d 1208, 1212-13 (8th Cir.1982) (noting that counsel may be found to be ineffective for failing to consult an expert where “there is substantial contradiction in a given area of expertise,” or where counsel is not sufficiently “versed in a technical subject matter ... to conduct effective cross-examination.”); Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir.2005) (“In sexual abuse cases, because of the centrality of medical testimony, the failure to consult with or call a medical expert is often indicative of ineffective assistance of counsel.”).
The majority correctly notes that the appellant must show more than his counsels’ faulty performance. He must also demonstrate he was prejudiced to the extent “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. While the appellant bears the burden of showing prejudice, “[i]t is clear, however, that [the appellant] need not show that [counsel’s] deficient conduct more likely than not altered the outcome in the case. This ‘preponderance’ standard was explicitly rejected in Strickland.” Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir.1994) (citing Strickland, 466 U.S. at 693, 104 S.Ct. 2052).
Contrary to the majority opinion, I find defense counsels’ errors to be highly prejudicial and seriously call into question the validity of the appellant’s court-martial conviction. We do not have to guess whether trial defense counsels’ miscues adversely impacted the appellant’s case; their own statements and actions are proof enough. The SDC admitted, “Had she initially relayed this information to us in our previous interviews, we would not have waived our motion to compel [BO].” Counsel effectively acknowledges he was unprepared to confront TB when she provided evidence different than was expected. This problem would not have occurred if he had, at a minimum, renewed his motion to compel the appointment of an expert following TB’s testimony.
Following trial, the ADC, apparently recognizing the damage caused by not securing a consultant, advised the appellant to hire BO, a registered SANE nurse and previously recognized court expert in sexual assault examinations (in fact, she was the same expert the defense had previously asked the convening authority to appoint), to review the record of trial, specifically with respect to TB’s testimony, findings and opinions. BO issued a highly critical report, calling into question TB’s experience, methodology, and conclusions on a number of crucial points; areas the defense counsel did not sufficiently address during TB’s cross-examination. BO criticized at least six aspects of TB’s performance, as follows:
First, BO disagreed with TB’s claim that the pictures taken during SF’s examination showed SF’s anus as “dilated” and “open” as the result of damage and trauma. BO claims the pictures appeared to be that of a “normal anus that is closed,” contradicting TB’s testimony that the anus was damaged in a manner that left it open over 24 hours after the incident. Her potential testimony would have been critical to whether SF actually incurred the trauma that TB claims she observed.
Second, BO disputed the method TB used to test SF’s sphincter, claiming that having a person lying on their back with knees pulled to their chest, as TB testified, would not give accurate results. She also claimed TB’s technique for determining anal function through manual stimulation was flawed.
Third, BO challenged TB’s claim that SF’s colon was visible in one of the photographs. *609BO asserts that in fact the picture shows SF’s anus was tightly closed, making it impossible to see her colon. Likewise, TB claimed she observed the pectinate line of the anus in the pictures. BO states the pectinate line is much lower in the anus than the colon and therefore it was not visible. BO’s testimony would have cast TB’s understanding of basic physiology into doubt, potentially leading the members to discount her testimony altogether.
Fourth, BO questioned TB’s assertion that she had observed and interviewed emergency room patients concerning injuries resulting from anal sex. BO states that talking to patients about anal sex is not common practice in the emergency room regardless of what the patient was presenting for, so it is particularly unlikely that TB was regularly asking such questions, again raising doubt as to reliability of TB’s testimony.
Fifth, BO claimed that, had she been employed at trial, she would have requested the literature, research, and educational materials that TB used to support her observations concerning consensual and non-consensual anal sex. BO contends this topic is not well researched.
Sixth, BO disputed TB’s opinions regarding consensual sodomy. TB testified that she would not expect to see lacerations from consensual sodomy, “because that particular sexual act is for pleasure, not for pain and when it’s done in a controlled environment with ... willing parties] ... it doesn’t usually have injury with it.” TB further stated that “Two people who are experienced with anal sex normally don’t incur injury.” BO claimed the injuries could have occurred during consensual or non-consensual sex, explaining that “even two people who are experienced in anal sex could incur injury due to the sensitivity of the anus and the fact that it is not meant to be entered.”
Additionally, in a post-trial memorandum to the convening authority, the ADC made the following personal comments regarding TB’s testimony:
1.“[TB] misrepresented her experience level in examinations of persons after sexual encounters.”
2. “[TB] over stepped the boundaries of her knowledge when she attempted to distinguish the appearance of the body after consensual anal intercourse verses forced anal intercourse.”
3. “[TB’s] testimony regarding [SF’s] anal trauma is inaccurate.”
4. “[TB] is a biased witness.”
Unfortunately, BO’s opinions and the ADC’s concerns were made after the appellant’s was already convicted. These important points would have been much more effective if made during the trial itself.
In my opinion, trial defense counsels’ errors were clearly prejudicial. BO’s report and a thorough reading of the record of trial show that defense counsel did not adequately question the methods TB used to conduct her exam, confront her with other studies, or refer to pertinent medical literature to question the accuracy of her conclusions. The defense counsels’ lack of familiarity with the medical issues involving sexual assaults effectively assured that TB’s almost uncontrovert-ed testimony was given greater weight by the members.
The majority asserts that, had BO testified consistent with her report, the final result would not have been different. I do not agree. The majority’s conclusion does not take into account the influential impact that expert testimony can have upon the fact finder. Pavel v. Hollins, 261 F.3d 210, 224 (2d Cir.2001) (quoting Swofford v. Dobucki, 137 F.3d 442 (7th Cir.1998) (“Indeed, ‘many’ sex abuse cases are ‘close ... on the evidence,’ and when a case hinges all-but-entirely on whom to believe, an expert’s interpretation of relevant physical evidence (or the lack of it) is the sort of ‘neutral, disinterested’ testimony that may well tip the scales and sway the fact-finder”) (internal citations omitted)); Williams v. Washington, 59 F.3d 673, 681-82 (7th Cir.1995) (citing Montgomery v. Petersen, 846 F.2d 407, 413-14 (7th Cir.1988) (“[I]n a credibility contest, the testimony of neutral, disinterested witnesses is exceedingly important”)). Had BO testified, the members would have been presented with evidence from two expert witnesses each of whom would have contradicted key pieces of *610the theory presented by the opposing side. Such a situation “would have presented a classic battle of the experts, [and] the potential damage to the side whose expert is missing can' be devastating.” United States v. Clark, 49 M.J. 98, 101 (C.A.A.F.1998). See also Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir.1999) (“The jury did not, however, have the benefit of expert testimony to explain the ramifications of these experiences on [the appellant’s] behavior. Expert evidence is necessary on such issues when lay people are unable to make a reasoned judgment alone.”).
BO’s assistance in formulating an effective defense strategy would have been invaluable. She could have provided defense counsel with the means to contest TB’s ultimate conclusion that the injuries were consistent with forcible penetration. TB’s testimony on this point was particularly damaging to the defense. Because her opinion was not effectively challenged, TB conveyed the message that SF’s injuries could only be the result of nonconsensual forcible sodomy. The defense’s attempt at cross-examination as the primary means to damage TB’s credibility was not a substitute for the affirmative evidence that BO ostensibly could have provided to diminish the impact of TB’s testimony.
Moreover, BO’s credentials as an expert were far better than TB’s. BO had testified as an expert in sexual assault examinations in hundreds of trials. TB’s experience on the other hand was far less. In fact, the appellant’s case was the first time she had been recognized as an expert by any court. It is very possible, indeed likely, that the members would have given BO’s opinions greater weight than TB’s simply because her demonstrated expertise in evaluating the central issue of forcible penetration and sexual assaults in general was significantly more compelling.
In sum, trial defense counsels’ failure to secure a forensic expert constituted an abrogation of their responsibility that undermined the proper functioning of the adversarial process. Despite the critical nature of TB’s testimony, counsel failed to consult with a forensic expert and thus failed to conduct the rudimentary investigation necessary to decide upon the nature of the defense to be presented; determine before trial what evidence should be offered; prepare in advance how to counter damaging expert testimony that would be introduced by the government; and effectively cross-examine and rebut the government’s expert witness once she testified. The traditional deference owed to the tactical and strategic judgments of counsel is not justified where there was not an adequate investigation supporting those judgments. Wiggins v. Smith, 539 U.S. 510, 522, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“Counsel’s failure to uncover and present mitigating evidence at sentencing could not be justified as a tactical decision ... because counsel had not fulfilled his] obligation to conduct a thorough investigation of the defendant’s background.”)); Strickland, 466 U.S. at 696, 104 S.Ct. 2052 (“A verdict or conclusion only weakly supported by the record is more likely to have been affected by counsel’s errors.”).
The issue at this point is not whether BO’s opinions and criticisms were necessarily correct or would have ultimately led the members to discount TB’s testimony. Rather, the question is whether the appellant has met the threshold burden of demonstrating that his counsels’ performance fell outside the acceptable range of professionally competent assistance and that, but for counsel’s errors, there is a reasonable probability that the result of the proceeding would have been different. In my opinion, the answer is clear that both prongs have been met and counsels’ defective assistance undermines the confidence in the appellant’s conviction.
I would therefore set aside the appellant’s conviction on all charges and specifications.
ROAN, Judge, filed a dissenting opinion.. In his affidavit, the SDC states that BO, the post-trial SANE for the defense, would not have been available when the trial resumed. He explained his reasoning for not seeking a substitute expert: "Although we could have opted for a different SANE consultant, neither [the ADC] nor I were familiar with any other local SANEs and as a result, we would have risked replacing [BO] with a less capable SANE.... Voluntarily substituting [BO] for a SANE of unknown competence would have constituted an unacceptable risk.” I do not understand counsel’s logic that it was more beneficial to the defense to proceed to trial without expert assistance than to request a consultant who, at a minimum, would have had qualifications equal to TB's. See United States v. Warner, 62 M.J. 114, 119 (C.A.A.F.2005) (defense is entitled to an expert whose qualifications are “reasonably similar” to the government's expert).