61 F.Supp.3d 103
D.D.C.2014Background
- Defendants moved for reconsideration of the court's June 16, 2014 order excluding defense expert Don Mikko.
- Mikko's Rule 16(b)(1)(C) disclosures were initially deemed inadequate; a supplemental disclosure was later provided on June 17, 2014.
- Mikko examined bullets and metal fragments from Nisur Square; the June 17 disclosure described his on-site examination and opinions.
- The government had previously filed a motion in limine seeking to preclude Mikko and other defense experts.
- The court previously excluded Mikko's testimony about physically examined munition evidence, prompting the motion for reconsideration.
- The court concludes timely supplemental disclosures satisfy Rule 16 and Grants reconsideration to admit Mikko's testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Mikko disclosure | Slough/Slatten argued disclosures were untimely. | June 17 supplement was timely pretrial disclosure. | Supplement timely; not excluded. |
| Admissibility of Mikko's testimony on physical evidence | Exclusion preserved Rule 16 safeguards. | Supplement provides sufficient basis to admit; changes facts. | Testimony on physical evidence admitted. |
| Prejudice to government from new Mikko testimony | New testimony would unfairly prejudice prosecution. | Surprise minimized; government anticipated counter-testimony. | No substantial/prejudicial surprise; admission allowed. |
| Admissibility of Mikko's M203 grenade launcher related testimony | Disclosures should have been timely and limited. | Government anticipated counter-claims; disclosure timely and testable. | Admissible if properly qualified on testing methods. |
| Impact of Rule 16 on timing and scope of expert disclosures | Rule 16 timing should constrain late disclosures. | Timeliness judged in context of trial schedule and need to test assertions. | Rule 16 timing satisfied; allows counter-testimony and cross-examination. |
Key Cases Cited
- Dieter v. United States, 429 U.S. 6 (1976) (civil Rule 59(e)-style reconsideration adopted in criminal context)
- Martinez v. Illinois, 134 S. Ct. 2070 (2014) (bright-line rule for when a jury trial begins and jeopardy attaches)