Gonzalez & Waddington – Attorneys at Law

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Overview of information not subject to disclosure for the appointment and production of expert witnesses:

See United States v. Eshalomi , 23 M.J. 12 (C.M.A. 1986); United States v. Jackson , 59 M.J. 330 (C.A.A.F. 2004).

Information not subject to disclosure

RCM 701(f). Disclosure is not required if the information is protected under the Military Rules of Evidence or if the information is attorney work product (notes, memoranda, or similar working papers prepared by counsel or counsel’s assistants or representatives).

United States v. Vanderwier , 25 M.J. 263, 269 (C.M.A. 1987) (“Even though liberal, discovery in the military does not ‘justify unwarranted inquiries into the files and the mental impressions of an attorney.’”)

United States v. King , 32 M.J. 709 (A.C.M.R. 1991), rev’d on other grounds , 35 M.J. 337 (C.M.A. 1992). A defense expert is subject to a pretrial interview by TC, but a defense “representative” under MRE 502 is not. It was improper for TC to communicate with defense representative concerning interview with appellant.

United States v. Vanderbilt , 58 M.J. 725 (N-M. Ct. Crim. App. 2003) (holding that a civilian witness’ agreement to testify pursuant to a pretrial agreement with the U.S. Attorney’s Office does not waive that witness’ attorney-client privilege regarding statement made to his attorney during the course of pretrial negotiations).

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