165 50. That is in keeping with the litigation privilege or the work product doctrine. The right is lost only whereit is waived by the defence. It is waived where the defence itself puts a defence witness statement in issue by relying on it for one purpose or another. Such was the case of Nobles, 422 U.S. 244. There, defence counsel, in cross-examining two prosecution witnesses, sought to impeach their credit by reference to oral statements which they had allegedly made to a defence investigator as preserved in the latter's "report" to defence counsel - something in the nature of a witness statement. In the view of the United States Supreme Court, the trial judge had power, in those circumstances, to order the defence to make the "report" available to the prosecution after examination-inchief of the investigator by the defence. That, with respect, was right; for the "report", having been relied on by the defence in cross-examining the two prosecution witnesses, was a factor which would obviously enter into the assessment of the truth.The “report” was thus put in issue by the defence itself. 51. On a similarly limited basis, a Trial Chamber has power to order the defence to make a defence witness statement available to the prosecution. I speak of a "limited basis" because I do not support the view that the prosecution has an unlimited right to see a defence witness statement after the witness has testified. The "cards on the table" approach favoured in some thinking on the subject has not reached that point under the Rules of Procedure and Evidence of the Tribunal. Nor, generally speaking, has that point been reached in the global common law system or in the global civil law system as they relate to criminal procedure. The right to protection is not spent at the point at which the witness has testified in chief. 52. I respectfully agree with the Appeals Chamber that a Chamber may order disclosure of a defence witness statement only where it is satisfied that in the particular circumstances disclosure would assist it in determining the truth. Disclosure by way of a fishing expedition is not correct. It is difficult to see how a defence witness statement is to be used by the prosecution otherwise than as a fishing expedition if it were the law that the prosecution has an automatic right to disclosure on completion of the examination-in-chief of each defence witness. At the point of disclosure, the prosecution will have no basis for suspecting that there is any variance between oral testimony and written statement; it will be only "fishing" for a variance. 53. However, it is not clear that this limited and conditional right of access to a defence witness statement is inconsistent with the position taken by the majority of the