Mil. R. Evid. 502(d)

In Mil. R. Evid. 1102, any amendment to the Federal Rules of Evidence come into effect in courts-martial 18 months after their effective date, absent action to the contrary.  I have not seen anything on Fed. R. Evid. 502(d), within the Joint Service Committee or other DoD organ.  The federal rule becomes effective 1 December 2011.

A piece in the New York Law Journal has this comment:

Enacted in 2008, Federal Rule of Evidence 502(d) permits a federal court to order that a "privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other Federal or State proceeding.

The reason I think this may become important is that there may then be a way to protect privileged information while making a pretrial motion.  For example, a pretrial motion for an expert.  Usually you need to disclose information to get such an expert.  Under current military rules that isn’t protected.  The only protection is from Mil. R. Evid. 410.  However, with the new federal rule of evidence there is a means to protect such disclosures.  You can request a confidentiality order from the military judge.

If there is no action to say the federal rule will not apply in courts-martial, then it will apply and will become effective in courts-martial.

Based on the DoD’s aversion to creating situations where the defense doesn’t have to disclose their case to the prosecution I’d anticipate action to avoid application of the federal rule.  We’ll see.

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