An Ounce of Improper Preparation Isn’t Worth the Cure: The Impact of Military Rule of Evidence 612 on Detecting Witness Coaching
By Zimmerman, Michael | |
Proquest LLC |
[A counsel's] duty is to extract the facts from the witness, not to pour them into him.1
I. Introduction
You are the Chief of Military Justice at a large installation. A batch of new litigators has been entrusted to your care and you have dutifully taught them everything you know about military justice over the past six weeks. One of your more promising young counsel has recently interviewed his first victim. On your way out of the building Friday night, you stop and ask him how the interview went. He excitedly tells you that it went great: he took your advice and provided the victim a clean copy of her statement, but he also went "off-script" and showed the victim a group of three to five pictures he selected from the thirty pictures the criminal investigators took, as well as the statement of an eyewitness that had highlights, stars, underlines, and notes the counsel had made in the margin because the victim was having trouble remembering key facts. The counsel tells you that he feels the victim is well prepared for trial next week, even though the events took place almost one year ago. In addition, he tells you he is sure that there are no issues because all of the statements and pictures have previously been turned over in discovery to defense. You sit back down at your desk, call your spouse to say you will be late for dinner, and you begin to wonder what the ramifications are of your young counsel's actions.
The above hypothetical illustrates a common problem many new counsel face. No one has ever taught them what they should and should not do when interviewing a witness. One of the major reasons for this deficiency is that the parameters of what is permitted are unclear. In addition, the scenario highlights the ambiguity that often exists in witness preparation and the role Military Rule of Evidence (MRE) 6122 plays in discovering when the line has been crossed into impermissible coaching3 of the witness. There are no
II. Determining When Witness Preparation Turns into Coaching
Determining when the line has been crossed between witness preparation and coaching is difficult because the limits of what is allowed are poorly defined. Furthermore, the work product doctrine shields from discovery the vast majority of the steps counsel take to prepare for trial. The application of that doctrine makes it difficult for the opposing side to detect coaching and to cross-examine witnesses on the difference between their actual memory and what may have been suggested to them during pre-trial interviews. The following shows how the confluence of vague witness preparation rules and the protections of the work product doctrine necessitated the development of FRE 612.
A. The Vague Line
Witness testimony is the life blood of any trial, particularly criminal trials, as confrontation clause jurisprudence has shown. As such, one would expect that the limits of what is permitted when preparing a witness for trial to be a source of significant proscription. Unfortunately, what constitutes proper preparation as opposed to coaching is largely a matter of opinion. This is because the parameters of what is allowed have not been the subject of much judicial or legislative review.5
There are no military cases dealing with witness coaching in a significant way.6 The only
To effectively cross-examine the opposing side's witnesses, and determine whether preparation crossed into coaching, counsel would certainly be interested in the steps the opposition took to prepare for trial. To that end, discovery requests might legitimately focus on which witnesses were interviewed and what documents were shown to each witness. However, acquiring that information is usually difficult due to the work product doctrine.
B. The Work Product Doctrine
The work product doctrine was created to prevent access to the opposition's files and allow mental impressions to remain confidential.11 In Hickman v. Taylor,12 the
Typically, the work product doctrine is viewed as primarily a civil rule; however, it applies equally to criminal cases.16 The rule applies to military justice cases through
While the doctrine protects against disclosure, it is not an absolute bar and may be waived.19 However, waiver of the work product protection is a very narrow concept, and only applies to the most intentional of abuses.20 If counsel used notes from a previous interview to assist a witness in testifying at trial, those notes would be protected from disclosure unless the court found that work product doctrine was purposefully waived.21 This would prevent the opposing party from effectively cross-examining the witness on the difference between what the witness actually remembers and what may have been suggested to him. Thus, absent egregious conduct, the work product doctrine acts as a barrier to cross-examination by preventing discovery of the facts necessary to challenge the witness.
III. Federal Rule of Evidence 612 and Military Rule of Evidence 612
Without a rule, a definite conflict exists between the work product doctrine and
A. The Legislative History of Federal Rule of Evidence 612
Since MRE 612 is derived from FRE 612, understanding the rationale behind the enactment of FRE 612 is important. As the advisory committee began drafting the Federal Rules of Evidence, the potential misuse of the work product doctrine led to the inclusion of Rule 612 in the submission to
After seven years of research conducted by the advisory committee,
[t]he purpose of the phrase "for the purpose of testifying" is to safeguard against using the rule as a pretext for wholesale exploration of an opposing party's files and to ensure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness.31
Finally, the committee cautioned that "nothing in the Rule shall be construed as barring the assertion of privilege with respect to writings used by a witness to refresh his memory."32 Thus, the committee attempted to strike the balance between the protections the work product doctrine affords the mental impressions of counsel, and the need for effective cross-examination to test the credibility of the witness.
B. The Text of the Rule
Military Rule of Evidence 612 states,
[i]f a witness uses a writing to refresh his or her memory for the purpose of testifying, either while testifying, or before testifying, if the military judge determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon.33
While there is a lack of case law from military courts analyzing the parameters of MRE 612, cases from the federal district courts citing FRE 612 are instructive.
To conduct a FRE 612 analysis, federal courts have isolated three elements that must be met: (1) a witness must use a writing to refresh his memory; (2) for the purpose of testifying; and (3) the court must determine that, in the interests of justice, the adverse party is entitled to see the writing.34 The first two elements are factual predicates and must be established before moving on to the third element.35
C. The Factual Predicates-The First Two Elements
The first element, that a witness used a writing to refresh his or her memory, is essentially a matter of relevance.36 It ensures that only documents actually reviewed by the witness are potentially subject to disclosure. On the surface, that standard seems easy to establish: either the witness reviewed the document or they did not. However, courts have required a much greater showing than simply reviewing a document. To establish this prong, there must be evidence that the witness relied upon the document such that their memory was somehow influenced.37 Thus, counsel must determine what documents a witness reviewed and the effect that reviewing the documents had on their memory to establish this prong.
The second element of the rule requires that the document shown to the witness was for the purpose of testifying. The advisory committee noted that language was used
to safeguard against using the rule as a pretext for wholesale exploration of an opposing party's files and to ensure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness.38
The stage at which the document is shown to the witness is important. The closer to trial the witness's memory is refreshed, the easier it is to establish that the writing was shown to the witness for the purpose of testifying. However, courts have held that pretrial testimony taken under oath also satisfies the "for the purpose of testifying" language within the rule.39 For the military practitioner, this means that documents shown to a witness for the purpose of refreshing memory prior to an Article 32 hearing should qualify as well. Fleshing these facts out with the witness in a pretrial interview, or under oath at an Article 32 hearing, is critically important to ensuring that the factual predicates can be established later at trial.
D. The Balancing Test-The Third Element
The third element mandates that the court determine whether the adverse party is entitled to the writing in the interests of justice. This element requires balancing the need for disclosure-to promote effective cross-examination- against the policies underlying the work product doctrine.40 As one court stated,
[i]n the setting of modern views favoring broad access to materials useful for effective cross-examination, embodied in rules like 612, . . . it is disquieting to posit that a party's lawyer may "aid" a witness with an item of work product and then prevent totally the access that might reveal and counteract the effects of such assistance.41
The role of FRE 612 in aiding the truth seeking process by revealing evidence that may impeach a coached witness was specifically set out in the legislative history.42 Thus, if the facts show that a document was relied upon by the witness, for the purpose of testifying, FRE 612 allows the opposition to test the credibility and true memory of the witness, but only if the interests of justice require disclosure.
E. When the Interests of Justice Require Disclosure
The purpose of FRE 612 is to overcome the usual protections afforded work product by shifting the policy in favor of promoting effective cross-examination.43 Therefore, determining when the interests of justice require disclosure addresses the balance between these two goals. If there are credible concerns that a witness's testimony has been influenced by a piece of work product, then the item should be produced. However, not all federal courts have given an equal amount of credence to determining when the interests of justice are implicated. As the following will show, two approaches have developed in the federal circuits: one where disclosure is nearly automatic, and one that balances the competing concerns of the work product doctrine and the need to effectively cross-examine the witness. The Military Rules of Evidence Manual suggests a third approach for dealing with MRE 612 issues, but this test fails to adequately balance the concerns of the work product doctrine against MRE 612's role in promoting cross- examination to detect coaching.
1. Cases Finding Nearly Automatic Disclosure
Determining when the line is crossed between proper preparation and misuse of work product has been a source of division in the federal circuits. One method for addressing these issues can be found in
[f]rom now on, as the problem and the pertinent legal materials become more familiar, there should be a sharp discounting of the concerns on which defendant is prevailing today. To put the point succinctly, there will be hereafter powerful reason to hold that materials considered work product should be withheld from prospective witnesses if they are to be withheld from opposing parties.47
This rule favoring near automatic disclosure has also been the holding in other courts.48
2. Cases Balancing Work Product Protections With the Need to Test Credibility
Cases such as
In that case, the plaintiff sued the defendant for infringement of their patent. During the pretrial phase, the defendant sought the disclosure of materials used by the plaintiff's counsel to prepare witnesses for their depositions.52 Noting the conflict between the work product protections and FRE 612, the court stated,
[N]o competent counsel can afford to ignore reviewing with witnesses the documents which relate to critical issues. During a deposition, counsel questioning a witness will seldom fail to ask the witness about what he or she did to prepare for the deposition, and the identity of any documents reviewed for this purpose . . . . [W]here, as here, many thousands of pages of documents have been produced and counsel have analyzed them and selected a population of "critical documents" relevant to case dispositive issues, a deposition question aimed at discovering what documents were reviewed to prepare for a deposition may draw an assertion of the work product doctrine. In response, the deposing attorney may contend that if the witness used the documents to prepare for the deposition, then work product immunity has been waived, and Fed.R.Evid. 612 requires the production.53
The court went on to give a detailed review of the work product doctrine. Specifically, the court looked at the cases54 that discussed waiver and concluded that a balance must be struck, especially when testimonial use is made of work product.55
Once the two factual predicates are met, the court established a list of nine factors to consider when weighing the balance between work product protections and the interests of justice.56 These factors are:
(1) the status of the witness (either expert or lay);
(2) the nature of the issue in dispute (whether the witness is testifying about the crux of the case or some lesser issue);
(3) when the events took place: . . . the ability of a witness to perceive, remember, and relate events is fair game for cross- examination, and a deposing attorney has a legitimate need to know whether the witness is testifying from present memory, unaided by any review of extrinsic information, present memory "refreshed" by reference to other materials, or really has no present memory at all, and can only "testify" as to what is memorialized in writings prepared by the witness or others-the greater the passage of time since the events about which the witness will testify, the more likely that the witness needed to refresh his or her recollection;
(4) when the documents were reviewed (the review of documents close to the date of the deposition may affect whether the court concludes that the purpose was to prepare for testimony);
(5) the number of documents reviewed (a court may be less inclined to order the production of several hundred documents than if the witness reviewed a single document, or very few documents, selected by the attorney that relate to a critical issue in the case);
(6) whether the witness prepared the documents (greater need than documents prepared by others);
(7) whether the documents contain pure work product (such as discussion of case strategy);
(8) whether the documents reviewed have been previously disclosed; and
(9) whether there are credible concerns regarding manipulation of a witness's testimony (if the court believes that there was inappropriate conduct affecting testimony in the case, and the documents demanded relate to these concerns, then the rationale for disclosure increases significantly). 57
The court noted that the list was illustrative, and the weight to be assigned to each factor may vary on a case-by-case basis.58 However, given the legislative history and the express purpose of FRE 612-to prevent the misuse of the work product doctrine-the final factor is seemingly the most important: if there are credible concerns regarding the manipulation of a witness's testimony, then disclosure will invariably be required.
The remaining eight factors listed in
The
3. The Military Rules of Evidence Manual Suggested Approach
Another approach to define the limits of MRE 612 can be found in the Military Rules of Evidence Manual.59 The authors suggest that the military judge consider the following factors in determining whether justice requires disclosure:
(1) the degree to which the witness actually relied upon the document;
(2) how similar the witness's testimony is to the document's content;
(3) what other documents, conversations, or independent events may have contributed to refreshing the witness's memory;
(4) how important to the litigation is the refreshing document; and
(5) whether it contains privileged or work product information.60
The common theme between the
However, the Military Rules of Evidence Manual's approach is flawed. The test suggested in the Manual combines the factual predicates identified in
In addition, the approach proposed in the Military Rules of Evidence Manual fails to address the third element of MRE 612. This final element requires disclosure "if the military judge determines it is necessary in the interests of justice." The language mandates judicial review of the manner in which the witness was prepared to testify. The Military Rules of Evidence Manual fails to address critical components of the final element. Factors such as the timing of when the documents were shown to the witness or the appearance of intentional abuse of the work product doctrine are key to determining whether the interests of justice are implicated.63 If an unfair advantage was gained, justice requires disclosure, no matter the ordinary protections afforded the material used.64 The Military Rules of Evidence Manual test is incomplete because it does not strike the necessary balance between the protections of the work product doctrine and the need for effective cross- examination found in the third element of the rule.
Based on the above, the most accurate and most complete analysis of an FRE 612 issue appears in
IV. Litigating a Witness Coaching Issue
If counsel suspects that a witness has been improperly coached, care should be taken to ensure that the factual predicates can be established using the
Next, counsel will want to ensure that the facts support a finding that the witness's recollection was refreshed for the purpose of testifying.67 Frequently, an opposing counsel will take the witness into the court room and prepare them with a "live fire" rehearsal. Establishing what took place during these sessions, to include what types of questions were asked and the timing of the session, will help establish the purpose.68 Crystallizing the facts that establish the documents were provided (1) to refresh memory and (2) for the purpose of testifying is critical. Without those predicates, the balancing test is never reached to determine if the interests of justice require disclosure.
Once the factual predicates are met, counsel should review the nine factors listed in
Once counsel believes the facts support disclosure, care should be taken to ensure the opposing side is made aware of which document or documents are in issue. Counsel should also demand that the documents be preserved in the state in which they were shown to the witness.70 The reason for the notice and demand to preserve is that, if those documents are subsequently destroyed or materially altered, the argument for an adverse inference instruction is significantly increased.71
An adverse inference instruction is a potential remedy for destruction of evidence issues in military courts.72 However, the limits of when destruction of evidence will trigger that remedy are underdeveloped in military law. Civilian courts have significantly addressed these issues, and most look favorably on claims for remedy when the opposition has given notice of what is in issue and a demand to preserve.73 This is because subsequent destruction by the opposition represents an element of bad faith.74 By borrowing from the civilian jurisprudence, using the same notice and demand procedure, counsel can strengthen the argument that the destruction of evidence instruction is appropriate, instructing the members that they may presume the evidence was destroyed because it was adverse to the destroying party's case.75
Taking the above steps, counsel can be confident they have gathered the necessary facts to litigate a MRE 612 issue. Doing so will also ensure that a remedy will be available should the challenged material no longer exist. Documents are sometimes lost or destroyed, at least in the manner in which they were shown to a witness, when the opposing counsel uses working copies of statements to refresh memory. These working copies typically contain counsel's notes, highlights, and underlines to emphasize certain facts. Those types of documents frequently change as counsel continue to prepare for trial. Thus, exercising diligence in demanding their preservation is imperative.
Returning to the actions taken by your zealous young counsel, recall that he provided the victim a clean copy of her statement; showed the victim the statement of an eyewitness that had highlights, stars, underlines, and notes the counsel had made in the margin; and showed the victim a group of three to five pictures he selected from the thirty pictures the criminal investigators took. Regardless of whether this material would fall under the disclosure requirements of Brady v. Maryland,76 or whether the defense would need to file a motion, it would be beneficial to recognize when improper witness preparation may have occurred and preserve the documents. Doing so will make a subsequent order by the court to disclose the pertinent documents easier to comply with. In addition, preserving the document makes the most tactical sense given the potential for an adverse inference instruction to remedy the destruction of evidence.77
Applying the
A. The Victim's Own Statement Will Not Be Subject to Disclosure Under MRE 612
Of the three types of documents shown to the victim, the most benign is the clean copy-free from notes highlights and underlines-of the victim's own statement. This is because it includes no facts other than those the witness has already attested to. As discussed earlier, what constitutes proper preparation as opposed to coaching is largely a matter of opinion because the parameters of what is allowed have not been the subject of much judicial or legislative review.78 However, providing a witness a clean copy of their own statement is a common practice79 and is the type of necessary preparation that the court in
Looking at the factual predicates, the purpose of the meeting and the timing-the week before trial-are clearly for the purpose of testifying. Since the events occurred nearly a year ago, it would not be difficult to argue that the document refreshed the witness's recollection. The question would then become, "do the interests of justice require disclosure?" It is on this third prong that the analysis fails. Though some factors weigh in favor of disclosure,83 the fact that the document has likely been previously disclosed under the discovery rules and that there is no apparent abuse of the work product doctrine, a judge would not likely order a second disclosure.
B. The Eyewitness Statement, With Counsel's Notes, Will Be Subject to Disclosure Under MRE 612
The next document is the statement of the eyewitness, with counsel's notes and highlights, shown to the victim. This document squarely falls within the ambit of MRE 612 and a judge will likely order disclosure. Providing a witness with the statements of other witnesses or the notes of counsel is not a commonly accepted practice84 and exceeds the bounds of fair preparation identified in
Applying the
Finally, the interests of justice require disclosure91 under these facts. Victims are typically the most important witness to a case. The events happened almost one year ago, and the document is being shown to the victim seven days before trial. These facts weigh heavily in favor of disclosure.
In addition, the misuse of the work product doctrine in this instance is likely to sway the judge. The statement of the witness, with the notes, underlines, and highlights, reveals those work product details that the counsel believes are most important. Showing this document to the victim raises credible concern regarding the manipulation of the victim's testimony because it contains some other witness's account and the thoughts of counsel. This concern over work product abuse is especially true since the document in question-with the notes, underlines, and highlights-has never been provided to the opposition. The search of credibility and memory would be ill served by allowing the work product doctrine to protect this document. The best course of action is to preserve the document in the state in which it was shown to the witness.92
C. The Selection of Certain Pictures Shown to the Victim Might Be Subject to Disclosure Under MRE 612
While the two previous scenarios are somewhat clear examples in the otherwise murky arena of witness preparation, the selection of particular photographs is less definitive. Just like the victim's own statement, the photographs have probably already been turned over in discovery. There are work product concerns with allowing the opposition to see which particular photographs counsel has selected to review with the victim. Arguably, revealing those specific pictures would tell the opposition something about what the counsel felt was important. That emphasis would reveal something of the strategy or internal thought process of the opposition. This is a similar argument to the one found in the civil cases from the federal circuits dealing with the specific, critical pages selected from the voluminous documents provided in discovery to prepare a witness for testifying.93 Here, there is a clear conflict between the need to test the victim's credibility and memory-does she remember what happened or was her testimony influenced by the pictures-and the work product doctrine's purpose of allowing counsel to prepare in secrecy.
Utilizing the
VI. What Is the Lesson?
Most young counsel do not understand what is allowed when conducting the critical task of preparing a witness to testify at trial. That fact should not be surprising as the parameters of witness perpetration are poorly defined, and even seasoned professionals disagree on what is and is not permitted. Therefore, mistakes are likely to be made as young counsel gain experience in this arena.
When confronted with a possibility that a witness was coached, military justice managers on both sides of the issue should understand how MRE 612 operates to ensure that work product is not unnecessarily disclosed or that useful material is obtained for cross-examination. In addition, understanding the rule is imperative so that managers can properly teach counsel the parameters of proper witness preparation. Recognizing the confluence between the work product doctrine and MRE 612 will ensure that counsel will not inadvertently learn that improper preparation is not worth the cure.
1 In re Eldridge, 82 N.Y. 161, 171-72 (Ct. App. N.Y., 1880).
2 MANUAL FOR COURTS-MARTIAL
3 See Robert K. Flowers, Witness Preparation: Regulating the Profession's "Dirty Little Secret," 38 HASTINGS CONST. L.Q. 1007 (2011) (noting that impermissible witness preparation techniques are often referred to as coaching). The term coaching will be used throughout this article.
4 While Military Rule of Evidence (MRE) 612 and Federal Rule of Evidence (FRE) 612 are not mirror images of each other, the main aspect of the rule is the same in both rules: if the witness (1) used a writing; (2) to refresh memory prior to testifying; (3) the court may order disclosure in the interest of justice. The remaining portion of MRE 612 (not appearing in the FRE) details the procedure for attendant claims of privilege. The MRE also deletes discussion of the Jencks Act due to the more liberal discovery rules applicable in the military. Compare MCM, supra note 2, MIL. R. EVID. 612, with FED. R. EVID. 612 (Writing Used to Refresh a Witness); see also UCMJ, app. 22, at 50 (2012).
Rule 612 is taken generally from the Federal Rule but . . . [l]anguage in the Federal Rule relating to the Jenks Act . . . which would have shielded material from disclosure to the defense under Rule 612 was discarded. Such shielding was considered to be inappropriate in view of the general military practice and policy which . . . encourages broad discovery.
Id.
5 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 116 (2000) [hereinafter RESTATEMENT] (noting that beyond the obvious prohibition against suborning perjury, the limits on witness preparation is supported by relatively sparse authority); Flowers, supra note 3 ("The fine line between proper witness 'preparation' and improper witness manipulation . . . - sometimes called 'coaching'-is rarely disciplined or even detected.").
6 United States v. Rodriguez-Rivera, 63 M.J. 372 (2006) (holding that the accused did not establish prosecutorial misconduct based on the allegation that a six-year-old child victim was improperly coached by trial counsel, assistant trial counsel, and her parents during recess regarding her testimony). This case is the closest any military court has come to addressing witness coaching, but still no guidance is given regarding what is allowed.
7
8 RESTATEMENT, supra note 5, § 116.
9 In re Eldridge, 82 N.Y. 161, 171-72 (Ct. App. N.Y., 1880).
10 Id; see also
11 Hickman v. Taylor,
12 Id.
13 Id.
14 See id. at 511-12. The court was concerned about the likelihood of disclosed work product revealing the mental impressions of counsel. Specifically, the court noted, "[w]ere such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own . . . . The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served." Id.
15 Id.; see also
16 United States v. Nobles,
17 25 M.J. 263 (1987). In
18 MCM, supra note 2, R.C.M. 701(f) (Information not subject to disclosure).
19 Nobles, 422 U.S. at 239-40 ("Respondent can no more advance the work-product doctrine to sustain a unilateral testimonial use of work- product materials than he could elect to testify in his own behalf and thereafter assert his Fifth Amendment privilege to resist cross- examination.") (citations omitted). Id.
20
[F]or work product, waiver does not take place unless a disclosure has been made which is consistent with a conscious disregard of the advantage that is otherwise protected by the doctrine. The work product doctrine, therefore, is both broader and more robust than the attorney client privilege, as it does not appear that it can be waived by inadvertent disclosure in the same way that the attorney client privilege can.
Id. (citations omitted). Thus, waiver is ordinarily only found in extreme cases, making waiver of the work product doctrine narrower than the scope of FRE 612.
21 Id.
22 Id. at 461. Specifically, the court noted that "it has been recognized that there is a clear conflict between Fed.
23 Waiver only applies in the limited circumstance where the work product doctrine has been intentionally abused. See id. at 464.
24 FED. R. EVID. 612 advisory committee's notes; see also
25 H. R. REP. NO. 93-650 at 1-4 (1973).
26 Id. The subcommittee held six days of hearings, heard twenty-eight witnesses, and received numerous written communications. Additionally, the subcommittee held seventeen markup sessions which culminated in a Committee Print of the proposed rules. The Committee Print was circulated nationwide for comment and printed in the Congressional Record to assure the widest distribution. Over the course of six weeks, approximately ninety comments were received by the subcommittee. Id. at 3.
27 Id.
28 FED. R. EVID. 612 advisory committee's notes.
29 The Jencks Act, 18 U.S.C. § 3500, requires that the government produce all prior statements of a witness to the defense after a witness testifies. The rule does not apply to the defense. It has long been settled that the Jencks Act applies to the military. See
30 FED. R. EVID. 612 advisory committee's notes.
31 Id.
32 Id. The committee was very concerned that the rule not be turned into an avenue for a wholesale exploration of an opposing party's files. This concern was codified into MRE 612, as it directs, "[i]f it is claimed that the writing contains privileged information or matters not related to the subject matter of the testimony, the military judge shall examine the writing in camera, excise any privileged information or portions not so related, and order delivery of the remainder." MCM, supra note 2, MIL. R. EVID. 612.
33 MCM, supra note 2, MIL. R. EVID. 612.
34
35 Id.
36 Alfreda Robinson, Duet or Duel: Federal Rule Of Evidence 612 and the Work Product Doctrine Codified in Civil Procedure Rule 26(B(3), 69 U. CIN. L. REV. 197 (2000).
37 United States v. Sheffield, 55 F.3d 341, 343 (8th Cir.1995) ("[E]ven where a witness reviewed a writing before or while testifying, if the witness did not rely on the writing to refresh memory, Rule 612 confers no rights on the adverse party.") (citing 28 Charles Wright &
38 FED. R. EVID. 612 advisory committee's notes.
39 Sporck v. Peil, 759 F.2d 312, 317 (3d Cir. 1985) (noting that, for depositions, cross-examination of witnesses is conducted to the same extent as permitted at trial under the provisions of the Federal Rules of Evidence).
40
41
42 FED. R. EVID. 612 advisory committee's notes (stating that the expressed purpose of the rule is to promote the search of credibility and memory).
43 In re Comair Disaster Litigation, 100 F.R.D. 350, 353 (
44
45
46 Id.
47 Id.
48
49 Berkey Photo, 74 F.R.D. at 616-17.
50 Id.
51
52 Id. at 458.
53 Id. at 461.
54 In particular, the court compared In re
55
56 Id. at 469-70.
57 Id.
58 Id.
59 2 STEPHEN A. SALTZBURG ET AL., MILITARY RULES OF EVIDENCE MANUAL 6-141 (6th ed., 2006).
60 Id. Though the end of the comment to the rule states that while attorney client privilege information is not likely to be produced under Rule 612(2), "[t]here is less reason to be protective of work product . . . . [I]f a witness uses work product to prepare testimony, the trend in federal cases . . . is to hold that the work product should be subject to disclosure under the Rule." Id. at 6-146.
61 In particular, the Military Rules of Evidence Manual simply applies the five-part test and weighs all parts of the test equally. There is no requirement to first establish that the witness relied on the document, for the purpose of testifying, before weighing the factors to determine if the interests of justice require disclosure. See id.
62 FED. R. EVID. 612 advisory committee's notes ("The purpose of the phrase 'for the purpose of testifying' is to safeguard against using the rule as a pretext for wholesale exploration of an opposing party's files and to insure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness.").
63 SALTZBURG ET AL., supra note 59.
64 In re Doe, 662 F.2d, 1073, 1079 (4th Cir. 1981).
65 See supra Part III.C.
66 Id.
67 Id.
68 A document shown to a witness several months before trial is less likely to be "for the purpose of testifying" than several days before trial.
69
70 A memorandum is suggested to document which pieces of evidence are believed to be the subject of a MRE 612 disclosure, and a demand should be made to preserve those documents. A sample memorandum can be found in the Appendix.
71 For a sample adverse inference instruction, see 3 FED. JURY PRAC. & INSTR. § 104:27 (6th ed.). "If you should find that a party willfully [suppressed] [hid] [destroyed] evidence in order to prevent its being presented in this trial, you may consider such [suppression] [hiding] [destruction] in determining what inferences to draw from the evidence or facts in the case." Id.
72 United States v. Ellis, 57 M.J. 375, 380 (2002) ("An adverse inference instruction is an appropriate curative measure for improper destruction of evidence.").
73 James T. Killelea, Spoliation of Evidence: Proposals for
74 Id.
75 Id. If the document needed to test the witness's credibility and memory no longer exists, this instruction is really the only recourse to impeach the coached witness.
76
77 See supra Part IV.
78 See RESTATEMENT, supra note 5, § 116.
79 See Patricia J. Kerrigan, Witness Preparation, 30 TEX.
80
However, where, as here, . . . counsel have analyzed [and] selected a population of "critical documents" relevant to case dispositive issues, a deposition question aimed at discovering what documents were reviewed to prepare for a deposition may draw an assertion of the work product doctrine, . . . it has been recognized that there is a clear conflict between Fed.
Id. at 461.
81 See In re Eldridge, 82 N.Y. 161, 171-72 (Ct. App. N.Y. 1880) (noting that there is little danger of crossing the line between extracting facts from a witness and pouring facts into a witness by providing them a "clean" copy of their own statement).
82 This rule specifically requires disclosure of "[a]ny sworn or signed statement relating to an offense charged in the case which is in the possession of the trial counsel." MCM, supra note 2, R.C.M. 701(a)(1)(C); see also id. R.C.M. 701(b)(1)(A) (defense witnesses).
83 See supra Part III.D.1.b n.52 (factors such as the timing to the trial, importance of the witness, and who prepared the document would all be implicated).
84 See Kerrigan, supra note 79 (discussing the parameters of commonly accepted witness preparation methods).
85
86
87 In re Eldridge, 82 N.Y. 161, 171-72 (Ct. App. N.Y., 1880).
88 FED. R. EVID. 612 advisory committee's notes.
89 See supra Part III.C.
90 See id.
91 See supra Part III.D.
92 See supra Part IV.
93
94 See supra Part III.C.
95 See Kerrigan, supra note 79.
96 The revelation of which photos counsel feel are most important arguably reveals something about the counsel's mental impressions, though this example highlights that the line can be fuzzy.
Major
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Wordcount: | 9213 |
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