Terrorism Trials & Investigations

Identify Your Experts, Please

By Benjamin Wittes, Wells Bennett
Tuesday, July 17, 2012, 4:02 PM

For Kammen, the next defense motion, AE74, is all about saving government money and efficiency. The government has provided a database to the defense in discovery, the attorney tells the court. And these suggest potential areas of expert testimony by prosecution witnesses. For example, the documents mention fingerprint and dna evidence relating to persons other than the defendant --- thus hinting that prosecution experts might testify as to those issues.  By learning the government’s experts in now, Kammen argues, the defense will be able to request funds for its own appropriate experts from the Convening Authority, and as early as possible.

Prosecutor Anthony Mattivi responds: the discovery tells the defense everything it needs to know about any potential expert testimony, he says. In truth, what the defense really wants is a litigation schedule - something the prosecution offered to exchange with the defense on a reciprocal basis earlier in the case.  But, the prosecutor explains, the defense refused this proposal. According to Mattivi, the defense instead preferred to file a motion and seek an order compelling the government to disclose only its witnesses. On questioning from Judge Pohl, the prosecutor says he understands that, when the time comes for the prosecution to disclose its experts, the defense later may seek (and obtain) additional time to identify any needed rebuttal experts. The real issue for Mattivi seems to be that the defense unilaterally insists on expert disclosure now, despite also insisting upon a distant trial date.

This has been a useful discussion, Kammen says. He explains that the defense has no desire to “lock in” the prosecution, experts-wise.  Instead, the defense wants to start requesting expert funds as expeditiously as possible. For his part, Kammen agrees that late-stage disclosures by the government could require further defense requests to the Convening Authority.  The defense lawyer is okay with that, but nevertheless wants to get the disclosures ball rolling as promptly as he can.