Classification: UNCLASSIFIED Caveats: NONE COL Pohl, The government acknowledges that the defense was, inadvertently, not provided the notice described in RCM 703(d) prior to retention of the expert witness. The comment to RCM 703(d), however, clearly indicates that the purpose of this rule is to promote fiscal prudence in order to allow the convening authority the opportunity to determine if an adequate substitute is available prior to retaining an outside expert. Unless the convening authority denies a request from the accused, the accused has no standing to challenge the expenditure of government funds by the convening authority. Absent some showing that the accused has been irreversibly prejudiced by the failure to receive notice in the form described in RCM 703(d), Dr. Valliere should be permitted to testify. Here, the defense has not been prejudiced because defense counsel received actual notice that the government intended to retain an expert witness. On 31 May 2011, Mr. Faraj contacted trial counsel in order to obtain the CV's of the government's expert witnesses. In that email he specifically referenced the psychologist, and indicated that he intended to request his own experts. The CVs (including Dr. Valliere's) were provided on 13 June 2011. On 14 June 2011, Mr. Faraj, once again indicated that he intended to submit requests for his own experts once he identified them. On 29 July 2011, the government's witness list was provided to defense counsel. The witness list indicated that Dr. Valliere was an expert witness who would testify regarding counter-intuitive victim behavior. All correspondence referenced in this paragraph is attached. Dr. Valliere has not examined the complaining witness. The only document she has been provided relating to this case is the complaining witness's statement to CID. She has a general understanding of the facts of this case, but the substance of her testimony will be based on her extensive clinical practice and the observations she has made regarding the post-attack behavior of sexual assault victims, in general. The defense has been in possession of Dr. Valliere's contact information since 13 June 2011. They were expressly informed that she would be called as an expert witness to testify regarding counterintuitive behavior on 29 July 2011. They have failed to make any effort to contact her until today. Dr. Valliere will arrive at Fort Irwin on Saturday, 27 June 2011. In addition to today's telephonic interview, Defense will have more than 24 hours between her arrival and trial to interview her, in person, and prepare. For all of the reasons stated above, the government's failure to provide the notice described in RCM 703(d) to defense counsel prior to retention is harmless. The defense had timely actual notice, and ample opportunity to prepare. Respectfully, CPT Wright -----Original Message----- From: Pohl, James L COL MIL USA Sent: Thursday, August 25, 2011 7:30 AM To: 'Haytham Faraj'; Wardlow, Russell D CPT MIL US USA FORSCOM Cc: Wright, Matthew E CPT MIL US USA FORSCOM; Douglas, Laquisha S CPT MIL USA FORSCOM Subject: RE: Saleh Issues (UNCLASSIFIED) Classification: UNCLASSIFIED Caveats: NONE Trial Counsel Response? Mr. Faraj Have you called the witness to discuss her potential testimony? COL Pohl -----Original Message----- From: Haytham Faraj [mailto:haytham@puckettfaraj.com] Sent: Thursday, August 25, 2011 10:27 AM To: Pohl, James L COL MIL USA; Wardlow, Russell D CPT MIL US USA FORSCOM Cc: Wright, Matthew E CPT MIL US USA FORSCOM; Douglas, Laquisha S CPT MIL USA FORSCOM Subject: RE: Saleh Issues (UNCLASSIFIED) In receipt. Your honor, I think there is another issue that we may need to address. I believe the Government may call an expert witness, psychologist. We have not been provided any of the information pursuant to R.C.M. 703(d) and Giglio. To the best of my knowledge we have only received a CV. If the government intends to call her as a witness and not just use her as an expert consultant, I will object to the witness being permitted to testify because we have not been provided the required disclosures prior to her being retained, as required by the Rule. Vrs, Haytham Faraj, Esq. PUCKETT & FARAJ, PC _______________________ WASHINGTON DC METRO The Law Firm of Puckett & Faraj, PC 1800 Diagonal Road Suite 210 Alexandria, VA 22314 703-706-0442 Phone 202-280-1039 Fax DETROIT METRO The Law Firm of Puckett & Faraj, PC 835 Mason Street Suite 150-A Dearborn, MI 48124 313-457-1390 Phone 202-280-1039 Fax www.puckettfaraj.com The information contained in this electronic message is confidential, and is intended for the use of the individual or entity named above. If you are not the intended recipient of this message, you are hereby notified that any use, distribution, copying of disclosure of this communication is strictly prohibited. If you received this communication in error, please notify Puckett & Faraj, P.C. at 888-970-0005 or via a return the e-mail to sender. You are required to purge this E-mail immediately without reading or making any copy or distribution. -----Original Message----- From: Pohl, James L COL MIL USA [mailto:james.pohl@us.army.mil] Sent: Thursday, August 25, 2011 9:43 AM To: Wardlow, Russell D CPT MIL US USA FORSCOM Cc: Wright, Matthew E CPT MIL US USA FORSCOM; haytham@puckettfaraj.com; Douglas, Laquisha S CPT MIL USA FORSCOM Subject: Saleh Issues (UNCLASSIFIED) Classification: UNCLASSIFIED Caveats: NONE All At the 39a on Monday, I think we have the following to discuss: The impact of Fosler on Charge III. The 404b notice, dated 29 Jul 11. TC motion in limine, dated 13 Jun 11. Self authentication of phone records, dated 29 Jul 11. Then, we will take formal entry of forum and plea and discuss voir dire. Each side needs to bring signed, original copies of any document you want to make part of the records. Documents sent to me will not be inserted in the record. Have I missed anything? Questions? COL Pohl Classification: UNCLASSIFIED Caveats: NONE Classification: UNCLASSIFIED Caveats: NONE Classification: UNCLASSIFIED Caveats: NONE Classification: UNCLASSIFIED Caveats: NONE
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