Gonzalez & Waddington – Attorneys at Law

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Overview of ethical considerations for the appointment and production of expert witnesses:

  1. UCMJ art. 46 (2008) is the root source for much of the military’s discovery and production rules: “The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence.” For production, this statute is embodied in RCM 703(a): “The prosecution and defense and the court-martial shall have equal opportunity to obtain witnesses and evidence, including the benefit of compulsory process.”
  2. Ethical considerations. AR 27-26, para. 3.4.
    1. It is unethical to unlawfully obstruct another party’s access to evidence, to make a frivolous discovery request, or fail to make a reasonably diligent effort to comply with a proper discovery request from an opposing party. Rule 3.4(a) and (d).
    2. “Subject to evidentiary privileges, the right of an opposing party, including the Government, to obtain evidence through discovery or subpoena is an important procedural right.” (Comment to rule).
    3. The ABA Standards for Criminal Justice, which apply to Army lawyers to the extent that they do not conflict with AR 27-26, contains additional ethical considerations. For example, the Standards contain guidance on how to deal with a witness that asks a party whether or not she should communicate with the other party (see Standard 3-3.1 and accompanying commentary) and whether a trial counsel should read a witness her rights for the purpose of influencing whether that witness should testify (Standard 3-3.2).
  3. Continuing Duty to Disclose. If, before or during the court-martial, a party discovers additional evidence or material previously requested or required to be produced, which is subject to discovery or inspection under this rule, that party shall promptly notify the other party or the military judge of the existence of the additional evidence or material. RCM 701(d)

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