joins (dissenting):
In order to obtain any expert assistance at government expense, the defense must show the necessity for it. United States v. Gonzalez, 39 MJ 459, 461 (CMA 1994); see United States v. Burnette, 29 MJ 473, 475 (1990); RCM 703(d), Manual for Courts-Martial, United States (1998 ed.). In this case, the prosecution affirmatively conceded this point when trial counsel stated that “the Government does not contest in any way, shape, or form that the accused is entitled to expert assistance.” Unless the military judge expressly rejects such a concession, which the judge here did not do, it must be accepted by this Court for the same reason that any trial waiver is accepted on appeal — the concession relieved the defense from any burden. See generally S. Childress and M. Davis, 1 Federal Standards of Review § 6.03 at 6-28 to 6-29 (2d ed. 1992).
In order to satisfy the defense need for expert assistance, the Government offered Dr. Cary Hall. Dr. Hall was the same person who had provided expert assistance to the prosecution and who was to be the Government’s chief witness against appellant. In that context, Dr. Hall clearly was conflicted in providing the defense with expertise with which to contest the charge at issue. *379See United States v. Ndanyi, 45 MJ 315, 319 (1996); United States v. Van Horn, 26 MJ 434, 437-38 (CMA 1988).
It is also noteworthy that Dr. Hall was the supervising officer for the testing process at the Naval Drug Screening Laboratory, Jacksonville, Florida, which was the laboratory that had performed the testing on appellant’s sample. Moreover, he was responsible for the reports on drugs generated by that laboratory for purposes of litigation. Defense counsel’s contention — “It is unlikely that an employee of the drug lab is going to point out deficiencies or problems in the procedures used” — is underscored by the laboratory policy to not allow their personnel to testify against each other in a court-martial.
In light of the Government’s express concession of the need for defense expert assistance, the conflict flowing from Dr. Hall’s status as the principal prosecution witness against appellant, and the laboratory’s own policy precluding its personnel from testifying against each other, I disagree with the majority’s conclusion that the defense failed “to show necessity for an independent expert,” 50 MJ at 374. The military judge abused his discretion when he denied the requested assistance, and, for the reasons discussed by Judge Sullivan, appellant was prejudiced by this error.