Yes, reports created by an expert consultant who is retained by the defense but who is not expected to testify at trial are generally protected from disclosure to the prosecution under the attorney work product doctrine. This doctrine is a crucial part of the legal system that allows an attorney to prepare their case in private without fear that their strategic thoughts, analyses, and internal consultations will be discovered by the opposing side.
A military defense attorney will often hire a “consulting expert” to help them understand complex evidence, such as financial records or forensic data, and to help them prepare their cross-examination of the government’s expert witnesses. Because this consultant is not intended to be a witness at trial, their communications with the attorney and any reports they generate are considered part of the attorney’s confidential work product. The prosecutor is not entitled to see this information.
However, this protection is not absolute. If the defense attorney later decides to call that same expert as a testifying witness at trial, the work product protection is waived. At that point, the prosecution has the right to discover the expert’s report and any data they relied on to prepare for their own cross-examination of the expert. This distinction between a non-testifying consultant and a testifying witness is critical for protecting the confidentiality of the defense’s trial preparation.