RE: ICO US v Wacker

["Day Capt Evan S" <evan.s.day@usmc.mil>]

This is a multi-part message in MIME format.

Good Morning Sir,

At the outset, I think this issue is probably better resolved through an 802 conference at minimum. There is a lot in the last couple of defense emails that I would like to respond to, but I don't want this email exchange to turn into a de facto off the record motions hearing. I will note two things, however:

(1) The issue here is not whether the witness is required to speak to the government. The issue is whether the defense may intentionally prevent the government from interviewing likely defense witnesses, who will give testimony on a complex subject, until the middle of trial, even after the court-ordered deadline for witness lists has come and gone.

(2) The case law on this subject is unambiguous:
"An expert may be of assistance to the defense in two ways. The first is as a witness to testify at trial. When serving in this capacity, he properly may be interviewed by the prosecutor. Indeed, even if the defense expert is a physician, he is subject to pretrial interview by trial counsel, because the Military Rules of Evidence recognize no categorical physician-patient privilege." US v. Turner, 28 MJ 487, 488 (CMA 1989). "If defense counsel also planned to use Major Gere as a witness, trial counsel could properly have interviewed him as to the matters about which he would testify." Id at 489, fn 3.
"By contrast, an expert witness may be called by either party or by the court. The expert witness testifies at trial and may be interviewed beforehand by both parties." United States v. Langston, 32 M.J. 894 (AFCMR 1991).

Very Respectfully,
Captain Evan S. Day
Judge Advocate
Joint Law Center
3D MAW/MCAS Miramar
P.O. Box 452013
San Diego, CA 92145-2013
Comm: (858) 577-1862
DSN: 267-1862
evan.s.day@usmc.mil

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-----Original Message-----
From: Haytham Faraj [mailto:haytham@puckettfaraj.com] 
Sent: Tuesday, February 08, 2011 7:50
To: Jones LtCol David M; Day Capt Evan S
Cc: Hur Capt Christian P; Sullivan LtCol Sean
Subject: RE: ICO US v Wacker

Your honor,
I am not aware of any rules or case law that require a witness to speak to
the other party.  The defense provided the government with a request that
proffered why the expert is necessary, how the expert will assist the
defense and why that assistance is relevant to the facts of the case.  I
have already notified them that Dr. Leininger will be listed on our witness
list but that I will not make a decision about calling him until trial.  By
listing him as a witness, the Government has notice and is able to prepare.
They have his CV, the proffered testimony and its relevance.  

Vr,

Haytham Faraj, Esq.
PUCKETT & FARAJ, PC
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-----Original Message-----
From: Jones LtCol David M [mailto:david.m.jones5@usmc.mil] 
Sent: Tuesday, February 08, 2011 3:29 AM
To: Day Capt Evan S
Cc: Hur Capt Christian P; haytham@puckettfaraj.com; Sullivan LtCol Sean
Subject: RE: ICO US v Wacker

Defense?

R,

LtCol David M. Jones
Military Judge
Western Pacific Judicial Circuit
Navy-Marine Corps Trial Judiciary
Office: 645-7287 / 2156
Fax: 645-2035