U.S. v. Schmidt, 60 M.J. 1

Core Criminal Law Subjects: Evidence: Privileges › Classified information

1. MRE 505 is a rule of evidence which enables the Government to assert a privilege against disclosure of classified information; the rule also authorizes limited disclosure under subsection (g)(2) and restrictions on disclosure through the use of protective orders under subsection (g)(1); the rule applies both when the defense seeks to obtain information from the Government and when the defense intends to disclose classified information in connection with a court-martial
2. MRE 505(h)(1) applies only when the defense seeks classified information from the Government or when the defense has determined that it reasonably expects to disclose classified information in the course of a proceeding; the rule does not come into play when the defense is making a preliminary evaluation of the evidence it already possesses to determine what evidence, if any, it may seek to disclose as part of the defense; the rule requires notice to trial counsel and contemplates litigation before the military judge -- an exercise that requires sophisticated legal judgments, evaluation of defense tactics, appropriate procedural devices, and skilled legal advocacy; the rule does not require an accused, without benefit of his own counsel, to engage in adversarial litigation with opposing counsel as a precondition to discussing with defense counsel potentially relevant information which the accused already has personal knowledge of based on his prior authorized access as part of his military duties
3. the Government may establish appropriate procedures to protect its interests in restricting access to classified information pursuant to statutes, rules, and regulations; the Government must also respect the important role of the attorney-client relationship in maintaining the fairness and integrity of the military justice system