I was encouraged, and then disappointed [amended]

Now, don’t get discouraged when your being encouraged doesn’t work out.  Remember a primary court-room rule:  never let them see they’ve hurt you.  Not too long ago Judge Vowell was chief in the Army’s First Judicial Circuit.  One of her rules of court was that both counsel must comply with Federal Rule of Civil Procedure 26(a)(2).  Essentially she wanted a mini-brief on the experts.  Here is what she said on the record in a prior case:

MJ: I’ll tell you that in following – I learned from the judges who work for me each day, and one of them has taught me that – take a look at Federal Rule of Civil Procedure 26, I believe, dealing with expert witnesses.  Be prepared to file a notice as to what the witness’s qualifications are, and the basis for the testimony.  Basically, this is a preemptive strike at the Daubert/Kumho Tire  issues.

CDC: I’m happy to hear that, Judge, because you are the first judge who I’ve ever – in all the times I’ve said, ‘Let’s go to 26,’ I’m happy to comply.

MJ: Please do so.  That’ll be going into my pretrial orders in the future.

My Article 32, UCMJ, production requests and my pretrial discovery requests ask for much of this information required by Rule 26(a)(2).  But having taken another look at the rule I think I’ll update my basic requests.

Disclosure of Expert Testimony.

(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.

(B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report — prepared and signed by the witness — if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the data or other information considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

(C) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:

(i) at least 90 days before the date set for trial or for the case to be ready for trial; or

(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B), within 30 days after the other party’s disclosure.

To my knowledge she’s the only military judge who has had such a rule, although on the record she’d mentioned another judge guided her.  Suffice it to say we were focused on litigating a contentious burglary and rape case at the time and I forgot to ask the name of the other judge.

Of course the government already knows what defense experts are going to say because you’ve had to explain in excruciating detail why you need the expert, how it will help your case, how the prosecution can best defeat your expert, and why you can’t do it yourself.  So this rule had some benefit to the defense.

Equally applicable could be the following federal rule of criminal procedure.  Don’t be discouraged that the rule went away with Judge Vowell’s retirement.  Someone else might decide it’s a good idea.  Fed. R. Crim. Pro. 16(a)(1)(G) says:

(G) Expert Witnesses.

At the defendant’s request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government requests discovery under subdivision (b)(1)(C)(ii) and the defendant complies, the government must, at the defendant’s request, give to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant’s mental condition. The summary provided under this subparagraph must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.

And Fed. R. Crim. Pro. 16(b)(1)(C) says (of course this provision is largely OBE because of R.C.M. 703(d):

(C) Expert Witnesses.

The defendant must, at the government’s request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if —

(i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or

(ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant’s mental condition.

This summary must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications[.]

On a different note, how many defense counsel object when the prosecution hires non-DoD experts and you don’t get to hear about it until the time to disclose witnesses?  R.C.M. 703(d) clearly applies to the prosecution, so how come the prosecution hasn’t given notice, etc.?  What’s the remedy?  How about the military judge ordering disclosure of the various communications.  Have had one do that despite – ha – a trial counsel claim of privilege.  I have seen one Air Force case where the prosecution followed R.C.M. 703(d).

Article 36, UCMJ, says:

(a) Pretrial, trial, and post trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.

(b) All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress.

Thanks to Gene Fidell for some input.

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