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11. Discovery and Production

CHAPTER 11

Discovery & Production

  1.       References            

  2.       Introduction

  3.       General

  4.       Government Discovery Responsibilities

  5.       Defense Discovery Responsibilities

  6.       Regulation of Discovery

  7.       Production

 

I. References

A. UCMJ art. 46

B. Rules for Courts-Martial 701, 703

C. Army Regulation 27-26, Rules of Professional Conduct for Lawyers

D. U.S. Army Trial Judiciary Rules of Practice before Army Courts-Martial

II. Introduction

A. This outline contains those discovery requirements that are found in the UCMJ, Military Rules of Evidence, Rules for Courts-Martial, and the Rules of Practice that relate to the exchange of information between the parties. 

1. Although the outline covers the most significant rules governing discovery and production, practitioners must always refer to the applicable RCMs or MREs governing the portion of proceedings they are in, or the action they seek to take, in order to ensure they are aware of all disclosure or notice requirements particular to their situation and the facts of their case.  For example, many rules of evidence contain requirements that the proponent provide advance notice of certain types of evidence to be offered at trial to the opposing party.

2. Practitioners must also consider whether discovery or production must be made or supplemented throughout the proceedings as many requirements are not limited to just the pretrial phase of the proceedings.  Remember that parties have a continuing duty to disclose and supplement discovery throughout the court-martial.  RCM 701(d).

B. Discovery basics

1. The rules for discovery establish how each party will help the other party to develop the other party’s case.  Fundamentally, these rules govern how the parties will exchange information. 

a) Discovery is a broad term.  It means attaining that which was previously unknown.  Black’s Law Dictionary 322 (6th ed. 1991).  It includes “the pre-trial devices that can be used by one party to obtain facts and information about the case from the other party in order to assist the party’s preparation for trial.”  Id.

b) Generally, one party requests discovery, to which the other party provides disclosure of the material.  Disclosure means to bring into view or to make known.  Id. at 320.   The terms “disclosure” and “allowing to inspect” are often used interchangeably. 

c) Discovery includes disclosure of something tangible or notice of something intangible, like a party’s intent to do something.

2. The discovery rules in the military are very liberal/open and are designed to encourage an efficient system.  Requiring parties to exchange information early in the process reduces pretrial motions practice; reduces surprise and gamesmanship; reduces delay at trial when delay is especially costly because the court is assembled; leads to better-informed decisions about the merits of the case; and encourages early decisions concerning withdrawal of charges, motions, pleas, and composition of court-martial.  RCM 701 analysis, app. 21, at A21-31 (MCM 2016 ed.).

C. Production basics

1. Production and discovery are different concepts.  Discovery deals with case development.  Information learned during the discovery process may or may not ultimately be introduced as evidence at trial.

2. Production is where one party (typically, the defense) requests that the other party (typically, the government) be responsible for ensuring a witness or item of evidence makes it to the courthouse on the date scheduled for a motions hearing or trial.  In practice, the defense will also often use production rules to request documents in advance of a hearing or trial date.  The party seeking production intends to call this witness or introduce this evidence at the hearing or trial.  If the accused is denied production, or does not want to request that the government produce a witness or some evidence, the accused can always arrange for the production of that witness or evidence at his own expense (having family members drive in on sentencing but not seek reimbursement from the government, for example).  If the accused is denied production and is unwilling to arrange for production at his own expense, he can file a motion with the court requesting relief. 

III. General

A. Liberal mandate of discovery in the military:  UCMJ art. 46(a) is the root source for much of the military’s discovery and production rules: “[T]he trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.”

1. For discovery, this statute is embodied in RCM 701(e): “Each party shall have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence . . . .  No party may unreasonably impede the access of another party to a witness or evidence.”  The remainder of RCM 701 provide the regulations implementing the discovery process in military courts-martial.

a) If the government analyzes the evidence, then the defense can analyze it too.  United States v. Walker, 66 M.J. 721 (N-M. Ct. Crim. App. 2008) (in a capital trial, the military judge erred when he refused to allow the defense experts to conduct independent testing of physical evidence admitted at trial). 

2. For production, this statute is embodied in RCM 703(a): “The prosecution and defense and the court-martial shall have equal opportunity to obtain witnesses and evidence . . . including the benefit of compulsory process.”  The remainder of RCM 703 provide the regulations implementing the production process in military courts-martial.

B. Witness interviews

1. Generally speaking, the government cannot require that a government representative be present during defense interviews of government witnesses, although in certain circumstances a third party observer may be permissible.  United States v. Irwin, 30 M.J. 87 (C.M.A. 1990); United States v. Killebrew, 9 M.J. 154 (C.M.A. 1980). 

2. Victim interviews.  RCM 701(e)(1):  Defense counsel must request interviews of any victim the government plans to call to testify through that victim’s SVC or other victim counsel.  AR 27-10, para. 17-19d (11 May 2016) states that, at the request of the witness, a VWL or designee may act as an intermediary between the witness and trial counsel/defense counsel for purposes of arranging witness interviews during trial preparation.

a) Victims who the government intends to call as a witness can request that defense interviews take place in the presence of the trial counsel, victim counsel, or victim advocate. 

C. Preservation of evidence.  United States v. Kern, 22 M.J. 49 (C.M.A. 1986):  “Government has a duty to use good faith and due diligence to preserve and protect evidence and make it available to an accused.”  See also United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015) (criticizing government failure to seek preservation of evidence outside of government control).

1. “In the case of evidence under control of the Government as well as evidence not under control of the Government, the person seeking production of the evidence may include with any request for evidence or subpoena a request that the custodian of the evidence take all necessary steps to preserve specifically described records and other evidence in its possession until such time as they may be produced or inspected by the parties.”  RCM 703(g)(4).

2. Due process test.   Unless the government acts in bad faith, failure to preserve potentially useful evidence does not constitute a denial of due process

a) Arizona v. Youngblood, 488 U.S. 51 (1988):  The government did not preserve clothes or perform certain tests on physical evidence taken from a child victim who had been sexually assaulted. The government did not make use of any of the materials in its case-in-chief. The Court stated “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process.”

(1) See also Illinois v. Fisher, 540 U.S. 544 (2004) (bad faith is the issue, even when the government destroys evidence for which the defense has submitted a discovery request).

(2) Youngblood clarified California v. Trombetta, 467 U.S. 479 (1984), which stated that absent bad faith, any constitutional duty to preserve evidence is limited to evidence that might be expected to play a significant role in the suspect's defense; that is, the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.  Some military cases from the period 1984-1988 refer to Trombetta as the controlling source.

b) Military cases.

(1) United States v. Garries, 22 M.J. 288 (C.M.A. 1986):  Blood stained fabric was consumed during testing.  The court used the Trombetta test which applied at the time and found no constitutional violation.  However, the court stated, “Under Article 46, the defense is entitled to equal access to all evidence, whether or not it is apparently exculpatory.  . . . Thus, the better practice is to inform the accused when testing may consume the only available samples and permit the defense an opportunity to have a representative present.”

(2) United States v. Mobley, 31 M.J. 273 (C.M.A. 1990):  Crime scene processors took evidence (including swatches) from a car and then released the car to the owners before the defense had an opportunity to examine the car.  At trial, the defense made a due process objection.  The court found no bad faith, and the evidence collected from the car was still available for testing.    

(3) United States v. Terry, 66 M.J. 514 (A.F. Ct. Crim. App. 2008):  After the first trial, the government lost or destroyed almost all of the physical evidence in a rape case.  The court conducted due process analysis, finding no bad faith.

(4) United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015). The duty to preserve evidence includes:

(a) Evidence that has apparent exculpatory value and no comparable substitute;

(b) Evidence that is of such central importance to the defense that it is essential to a fair trial; and

(c) Statements of witnesses testifying at trial

3. Service regulations may provide further rights and remedies.

a) United States v. Manuel, 43 M.J. 282 (C.A.A.F. 1995):  Destruction of accused’s positive urine sample one month after testing violated Air Force regulation and DoD directive. Lower court’s suppression of positive results not an abuse of discretion where court concluded that standards for preserving samples conferred a substantial right on the accused.

b) United States v. Madigan, 63 M.J. 118 (C.A.A.F. 2006):  An Air Force Institute of Pathology regulation required that positive urine samples be kept for two years.  The lab inadvertently destroyed accused’s sample before two years were up.  The defense did not request access to the sample during this period.  Later, the defense discovered the sample was destroyed.  The court found that applicable regulations concerning retention of drug testing samples conferred a right on Servicemembers to discover evidence, and suppression is an appropriate remedy for lost or destroyed evidence in those cases.  If defense does not make a request to preserve the evidence before the period ends, they have essentially become the reason that the evidence is unavailable and so cannot seek a remedy under RCM 703.

c) Department of Defense policy requires retention of drug abuse testing records for one year. Dep't of Defense, Instr. 1010.16, Technical Procedures for the Military Personnel Drug Abuse Testing Program encl. 4, para. 15.b.(2) (Oct. 10, 2012) (c1 Feb. 27, 2017)

D. Ethical considerations.  AR 27-26:

1. Counsel may not unlawfully obstruct another party’s access to evidence, destroy evidence, make a frivolous discovery request, or fail to make a reasonably diligent effort to comply with a proper discovery request from an opposing party.  Rule 3.4(a) and (d).

2. Counsel may not knowingly disobey an obligation to an opposing party.  Rule 3.4(c).

3. Trial counsel must “make timely disclosure to the defense of all evidence or information known to the Trial Counsel that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the Trial Counsel.”  Rule 3.8(d).

4. The ABA Standards for Criminal Justice, which apply to Army lawyers to the extent that they do not conflict with AR 27-26, contain additional ethical considerations. 

E. Continuing duty to disclose:  “If, before or during the court-martial, a party discovers additional evidence or material previously requested or required to be produced, which is subject to discovery or inspection under this rule, that party shall promptly notify the other party or the military judge of the existence of the additional evidence or material.”  RCM 701(d); see United States v. Eshalomi, 23 M.J. 12 (C.M.A. 1986); United States v. Jackson, 59 M.J. 330 (C.A.A.F. 2004); United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015).

F. Information not subject to disclosure:  Disclosure is not required if the information is protected under the MREs or if the information is attorney work product (notes, memoranda, or similar working papers prepared by counsel or counsel’s assistants or representatives).  RCM 701(f).

1. United States v. Vanderwier, 25 M.J. 263 (C.M.A. 1987) (“Even though liberal, discovery in the military does not ‘justify unwarranted inquiries into the files and the mental impressions of an attorney.’”).

2. United States v. King, 32 M.J. 709 (A.C.M.R. 1991), rev’d on other grounds, 35 M.J. 337 (C.M.A. 1992):  A defense expert witness is subject to a pretrial interview by trial counsel, but a defense “representative” under MRE 502 is not. It was improper for trial counsel to communicate with defense representative concerning interview with appellant.  Parties may interview testifying expert witnesses for the other side, but they cannot interview the other side’s expert consultants.

3. United States v. Vanderbilt, 58 M.J. 725 (N-M. Ct. Crim. App. 2003) (holding that a civilian witness’s agreement to testify pursuant to a pretrial agreement with the U.S. Attorney’s Office does not waive that witness’s attorney-client privilege regarding statement made to his attorney during the course of pretrial negotiations).

IV. Government Discovery Responsibilities

A. Mandatory disclosure or notice requirements from trial counsel to defense

1. Evidence that reasonably tends to negate guilt, reduces the degree of guilt, reduces punishment, or adversely affects the credibility of any prosecution witness or evidence.

a) Sources

(1) RCM 701(a)(6). The trial counsel shall, as soon as practicable, disclose evidence known to the trial counsel (note the discussion of the due diligence requirement infra) which reasonably tends to:

(a) Negate guilt;

(b) Reduce the degree of guilt

(c) Reduce the punishment; or

(d) Adversely affect the credibility of any prosecution witness or evidence.

(2) Brady v. Maryland, 373 U.S. 83 (1963):  In a death penalty case, the government did not disclose a statement where the codefendant admitted to being the actual killer.  The Supreme Court stated “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” The Court held that the government must disclose evidence that is favorable to the accused and material to either guilt or punishment.

(a) Evidence is favorable if it is exculpatory substantive evidence or evidence  capable of impeaching the government's case.  United States v. Orena, 145 F.3d 551 (2d Cir. 1998).  Evidence is material when “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different”; the evidence must have made the “likelihood of a different result . . . great enough to ‘undermine[] confidence in the outcome of the trial.’”  Smith v. Cain, 132 S. Ct. 627 (2012).  Once a Brady violation is established, courts need not test for harmlessness.  Kyles v. Whitley, 514 U.S. 419 (1995).

(b) See United States v. Behenna, 71 M.J. 228 (C.A.A.F 2012); United States v. Kinzer, 39 M.J. 559 (A.C.M.R. 1994); United States v. Adens, 56 M.J. 724 (Army Ct. Crim. App. 2002). 

(3) AR 27-26, para. 3.8(d).  Trial counsel will disclose all evidence that tends to:

(a) Negate guilt;

(b) Mitigate the offense; or

(c) Mitigate the sentence.

b) Pursuant to RCM 701(a)(6)(D), favorable impeachment information (Giglio information) must also be disclosed to the defense:

(1) See Banks v. Dretke, 124 S. Ct. 1256 (2004); Strickler v. Greene, 527 U.S. 263 (1999); Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Bagley, 473 U.S. 667 (1985); Giglio v. United States, 405 U.S. 150 (1972).

(2) This impeachment information may include:

(a) Any promise of immunity or leniency offered to a witness in exchange for testimony.  See, e.g., Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264 (1959); United States v. Coleman, 72 M.J. 184 (C.A.A.F. 2013). 

(b) Specific instances of conduct of a witness for the purpose of attacking the witness’s credibility or character for truthfulness.  See, e.g., United States v. Watson, 31 M.J. 49 (C.M.A. 1990) (finding evidence that witness had monetary interest in outcome of case could have been favorable); United States v. Mahoney, 58 M.J. 346 (C.A.A.F. 2003) (holding that trial counsel’s failure to disclose a letter impeaching government’s expert witness was reversible error).

(c) Evidence in the form of opinion or reputation as to a witness’s character for truthfulness.  MRE 608.

(d) Prior inconsistent statements.  See, e.g., Graves v. Cockrell, 351 F.3d 156 (5th Cir. 2003); United States v. Romano, 46 M.J. 269 (C.A.A.F. 1997) (trial counsel had a duty to disclose statements by witnesses at the Article 32 investigation of co-accuseds, where the prior statements were inconsistent with government’s main witness’ testimony at trial).

(e) Information to suggest that a witness is biased. See, e.g., United States v. Bagley, 473 U.S. 667 (1985); Banks v. Dretke, 124 S. Ct. 1256 (2004) (finding State’s failure to disclose key state witness in capital sentencing proceeding was a paid government informant and played an important role in setting up Banks’ arrest was error); United States v. Claxton, 76 M.J. 356 (C.A.A.F. 2017) (finding government committed a Brady violation when it did not disclose to the defense that two witnesses against the accused were confidential informants working with USAF OSI).

(3) Guilty Pleas.  United States v. Ruiz, 536 U.S. 622 (2002):  The Constitution does not require the pre-guilty plea disclosure of impeachment information. The Court noted that disclosure of impeachment information relates to the fairness of a trial, as opposed to the voluntariness of a plea.  Impeachment information, the Court declared, is particularly difficult to characterize “as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant.” 

c) Scope of the government’s due diligence duty to discover favorable evidence

(1) The prosecutor does not have to have actual knowledge of the evidence to commit a Brady violation.  See Kyles v. Whitley, 514 U.S. 419 (1995); Giglio v. United States, 405 U.S. 150 (1972); United States v. Mahoney, 58 M.J. 346 (C.A.A.F. 2003); Bailey v. Rae, 339 F.3d 1107 (9th Cir. 2003).

(2) United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999):  The government may be required to look beyond its own files for exculpatory evidence.  “The parameters of the review that must be undertaken outside the prosecutor’s own files will depend in any particular case on the relationship of the other governmental entity to the prosecution and the nature of the defense discovery request.”  The scope of the government’s duty to search beyond the prosecutor’s own files generally is limited to: 

(a) The files of law enforcement authorities that have participated in the investigation of the subject matter of the charged offenses.

(i) This includes CID and MPI, and law enforcement agencies outside of the DoD, such as local police departments, state law enforcement, and federal law enforcement agencies.  It also includes labs that participated in the investigation such as USACIL and drug labs.  Note that AR 195-2, Appendix B sets forth which Army MCIO has investigative responsibility for each type of offense under the UCMJ. 

(ii) United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989) (the “prosecutor will be deemed to have knowledge of and access to anything in the possession, custody, or control of any federal agency participating in the same investigation of the defendant.”).

(iii) United States v. Simmons, 38 M.J. 376 (C.M.A. 1993) (holding that trial counsel must exercise due diligence in discovering the results of exams and tests which are in possession of CID).

(iv)  United States v. Sebring, 44 M.J. 805 (N-M Ct. Crim. App. 1996) (holding that trial counsel had a duty to discover quality control investigation into problems at Navy drug lab that tested the accused’s urine sample).

(v) Kyles v. Whitley, 514 U.S. 419 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”).

(vi) United States v. Ellis, 77 M.J. 671 (Army Ct. Crim. App. 2018):  In this marital sexual assault case, the victim crashed her car into her husband’s car the day before the rape at issue.  The victim was apprehended by the military police for child endangerment because there was a child in the vehicle at the time of the crash.  At trial, defense argued that the victim fabricated the rape in order to advantage herself in divorce/child custody proceedings, especially in light of the child endangerment allegation.  At trial, the victim denied the crash was intentional and denied knowing she was apprehended for child endangerment during cross-examination.  Trial counsel had not disclosed the military police report from the car crash to the defense because they did not know about it; the MPR found the crash was intentional and contained a DA Form 3881 citing the victim for child endangerment.  ACCA held that the government did not violate Brady or RCM 701(a)(6) by not disclosing the military police report where the trial counsel did not know about the crash, and that the military police report did not fall within the government due diligence obligation, even though both the rape and the crash occurred on the same military installation (but were investigated by different MCIOs).  The defense did not specifically request the military police report from the government, even though the defense counsel knew about it, and the accused had obtained a copy of it through a FOIA request.

(b) Investigative files in a related case maintained by an entity closely aligned with the prosecution

(i) United States v. Hankins, 872 F.Supp. 170 (D.N.J. 1995) (“[W]hen the government is pursuing both a civil and criminal prosecution against a defendant stemming from the same underlying activity, the government must search both the civil and criminal files in search of exculpatory material.”).

(c) Investigative files of tangential or unrelated investigations if specifically requested by the defense.  These requests should also be analyzed under RCM 701(a)(2).

(i) United States v. Veksler, 62 F.3d 544 (3d Cir. 1995) (the request provides constructive notice to the prosecution about the existence of the files). 

(ii) United States v. Green, 37 M.J. 88 (C.M.A. 1993):  The defense requested “[a]ny record of prior conviction, and/or nonjudicial punishment of” any government witness. The trial counsel responded without comment.  The CID agent had an Art. 15 for fraternization, false claim, and larceny. Error was harmless beyond a reasonable doubt because the CID agent was only used to authenticate physical evidence.

(3) Evidence outside of government control that the prosecution knows about.  United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2016):  “The RCMs generally do not place on the government a duty to search for exculpatory evidence held by people or entities not under its control, such as a witness; nevertheless, a trial counsel cannot avoid discovery obligations by remaining willfully ignorant of evidence that reasonably tends to be exculpatory, even if that evidence is in the hands of a government witness instead of the government; this prohibition against willful ignorance has special force in the military justice system, which mandates that an accused be afforded the equal opportunity to inspect evidence.” 

(4) The exact left and right limits of the government’s due diligence obligation will depend on the facts and circumstances of each case, and may not be limited just to those mentioned in WilliamsUnited States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015):  The government’s duty under the RCMs of disclosing exculpatory evidence encompasses more than producing what was in its physical possession, but also what is in its control; “trial counsel must review their own case files and must also exercise due diligence and good faith in learning about any evidence favorable to the defense known to the others acting on the government’s behalf in the case, including the police”; “In regard to the latter point, a trial counsel’s duty to search beyond his or her own prosecution files is generally limited to: (1) the files of law enforcement authorities that have participated in the investigation of the subject matter of the charged offenses; (2) investigative files in a related case maintained by an entity closely aligned with the prosecution; and (3) other files, as designated in a defense discovery request, that involved a specified type of information within a specified entity.”  “However, this list is not exhaustive because trial counsel’s duty to search beyond his own files will depend in any particular case on the relationship of the other governmental entity to the prosecution and the nature of the defense discovery request.”

d) Understanding and applying RCM 701(a)(6) and Brady at trial

(1) The Brady rule is designed to ensure the defendant learns of exculpatory evidence that is known only to the government.  If the defendant knows or should know the essential facts permitting him to take advantage of the exculpatory evidence (like the witness’s identity), then the government does not have a duty to disclose the information.  United States v. Grossman, 843 F.2d 78 (2d Cir. 1988) (no Brady violation when the defense knew the witness’ name, that he might have testified before a grand jury, and that the testimony might have been favorable).  Under RCM 701(a)(6) and AR 27-26, para. 3.8(d), the trial counsel must always disclose favorable matter, whether or not that matter may later be found to be material.

(2) Applying RCM 701(a)(6) and Brady at trial is not that difficult.  Typically, these issues arise when the government makes a late disclosure or the defense discovers this evidence on its own late in the process.  Everyone knows about the evidence (they are, after all, litigating about it).  The real problem is that the defense needs more time to prepare for trial based on this newly discovered evidence.  The military judge just needs to fashion a just action in response under RCM 701(g), which will probably be to grant a continuance.  The other actions the military judge can take pursuant to RCM 701(g) in response to a failure to disclose RCM 701(a)(6) or Brady material includes ordering further discovery, prohibiting the government from introducing certain evidence or calling a witness, or such other order as is just under the circumstances. 

(a) Whether disclosure is sufficiently complete or timely to satisfy Brady can only be evaluated in terms of “the sufficiency, under the circumstances, of the defense’s opportunity to use the evidence when disclosure is made.”  Leka v. Portuondo, 257 F.3d 89 (2d Cir. 2001) (“The opportunity for use under Brady is the opportunity for a responsible lawyer to use the information with some degree of calculation and forethought.”).

(3) The RCM 701(a)(6) language uses the phrase “reasonably tends” rather than the Brady term “material.”  Under Brady, if the government fails to disclose favorable information, that nondisclosure violates due process only if the matter was material.  Kyles v. Whitley, 514 U.S. 419 (1995); Cone v. Bell, 129 S.Ct. 1769 (2009).

(a) The phrase “reasonably tends” can be readily applied during trial proceedings, where the parties are arguing prospectively.  The term “material” is essentially a test for prejudice that is applied retrospectively, on appeal, where the defense has only now learned of the evidence.  The issue on appeal is whether the first trial should be set aside based on this discovery violation.  As such, much of the case law related to the term “material” may not translate well to litigation at trial.  At trial, use “reasonably tends.”

(b) The case law that has developed around the term “favorable” does have application at trial litigation, but again, if the issue is being litigated at trial, then the defense knows about the evidence and the real issue is whether the defense has enough time to prepare based on that new knowledge.  And, if the defense has made a discovery request under RCM 701(a)(2), the defense does not have to make a showing that the evidence is “favorable.”  Under that rule, the information only needs to be “relevant.”

2. Charges (accused must be informed of the charges by his immediate commander as soon as practicable).  RCM 308(a).

3. Initial Disclosures.  RCM 404A

a) Disclosures due after preferral of charges:  As soon as practicable after notification to the accused of preferred charges, trial counsel must provide the defense copies of the charges and any matters that accompanied the charges when preferred.  RCM 404A(a)(1).

(1) Preferred charges must be provided to TDS at the earliest possible date so that defense counsel can be appointed and begin preparation.  Rule of Practice 1.1.

b) After direction of a preliminary hearing:  No later than 5 days after direction of an Article 32, trial counsel must provide the defense copies of the order directing the preliminary hearing, statements within the control of military authorities of witnesses the trial counsel intends to call at the preliminary hearing, evidence the trial counsel intends to present at the preliminary hearing, and any matters provided to the convening authority when deciding to direct the preliminary hearing.  RCM 404A(a)(2).

c) RCM 404A does not require the production of any items that are privileged, classified, or otherwise protected under Section V of the MREs.  The trial counsel may disclose such items if authorized by the holder of the privilege or a competent authority; if the trial counsel does so, the convening authority may issue a protective order to safeguard the information against compromise.  RCM 404A(c)-(d). 

4. Report of Article 32 preliminary hearing (promptly after completion).  RCM 405(l)(4).

5. Allied papers (as soon as practicable after service of charges under RCM 602).  RCM 701(a)(1):

a) Any papers that accompanied the charges when referred;

b) The convening orders;

c) Any sworn or signed statement relating to an offense charged in the case which is in the trial counsel’s possession;

d) Additional requirements from the Rules of Practice:  ERB/ORB and referred charges must be provided within 24 hours to both accused and defense counsel.  Rule of Practice 1.1.

6. Prior convictions of the accused (before arraignment).  The “trial counsel shall notify the defense of any records of prior civilian or court-martial convictions of the accused of which the trial counsel is aware and which the trial counsel may offer on the merits for any purpose, including impeachment.”  RCM 701(a)(4).

7. “Section III” disclosures under the Military Rules of Evidence due before arraignment

a) Grants of immunity or leniency (prior to arraignment or within a reasonable time before the witness testifies):  When a government witness has been granted immunity or leniency in exchange for testimony, the grant must be reduced to writing and served on the accused.  MRE 301(d)(2); see also Giglio v. United States, 405 U.S. 150 (1972).

b) Accused’s statements (prior to arraignment):  The prosecution must disclose all statements of the accused, oral or written, that are relevant to the case, known to the trial counsel, and within the control of the Armed Forces, and all evidence derived from such statements, that the prosecution intends to offer against the accused at trial.  MRE 304(d).  Counsel must provide timely notice of an intent to offer a statement that was not disclosed prior to arraignment; military judge retains discretion as to whether to admit such a statement.  MRE 304(f)(2).  “All statements:”

(1) Includes remarks made during informal conversations.  United States v. Callara, 21 M.J. 259 (C.M.A. 1986).

(2) Is not limited to those made to military superiors or law enforcement. United States v. Trimper, 28 M.J. 460 (C.M.A. 1989).

(3) Potential sources of accused statements:  sworn statements; oral statements made during law enforcement or command interviews; oral statements made to friends, co-workers, victims; statements on counseling forms; emails; texts; social media posts; etc.

(4) Note that ACCA has ruled that “trial counsel complies with the 300-series of the Rules of Evidence when he or she turns over all statements by an accused. While it is a commendable Army practice to separately turn over a list of statements that the trial counsel intends to introduce at trial, this is not a strict requirement.”  United States v. Urik, 2017 CCA LEXIS 134 (Army Ct. Crim. App. 2017).  Trial counsel should be very cautious in their reliance on this unpublished case, and should consult with their chief of justice and senior trial counsel regarding local standards for the depth of Section III disclosures.

c) Evidence seized from the accused or property owned by the accused (prior to arraignment):  The prosecution shall disclose all evidence seized from the accused or property owned by the accused, or evidence derived therefrom, that it intends to offer into evidence against the accused at trial.  MRE 311(d)(1).  Trial counsel must provide timely notice of an intent to offer this evidence that was not disclosed prior to arraignment.  MRE 311(d)(2)(B).

d) Identifications (prior to arraignment):  The prosecution shall disclose all evidence of prior identifications of the accused as a lineup or other identification process that it intends to offer into evidence against the accused at trial.  MRE 321(d)(1).  Trial counsel must provide timely notice of an intent to offer lineup evidence that was not disclosed prior to arraignment.  MRE 321(d)(3).

e) Rule of Practice 2.1.7 requires that Section III disclosures be made not later than two duty days after the trial date is set if arraignment is the day of trial.

8. Similar sex assault or molestation crimes (5 days prior to entry of pleas):  If the government intends to offer evidence of similar crimes (sexual assault or child molestation), the trial counsel must notify the defense of its intent and disclose the evidence.  MRE 413 and 414.

9. Notice of intent to employ an expert at government expense and submission of a request to the convening authority to authorize the expert and fix compensation (in advance of employment).  RCM 703(d).

10. Merits witnesses (before the beginning of the trial on the merits).  RCM 701(a)(3).

a) The trial counsel shall notify the defense of the names and contact information of the witnesses the trial counsel intends to call:

(1) In the prosecution case-in-chief; and

(2) To rebut a defense of alibi, innocent ingestion, or lack of mental responsibility, when the trial counsel has received timely notice of such a defense.

b) Notice must be provided no later than seven duty days prior to trial.  Rule of Practice 2.1.8.

11. Testing may consume only available samples of evidence.  United States v. Garries, 22 M.J. 288 (C.M.A. 1986):  Inform the accused when testing may consume the only available samples and permit the defense an opportunity to have a representative present.

B. Disclosures and notices made upon defense request

1. Documents and tangible objects (after service of charges and upon defense request).  RCM 701(a)(2)(A).

a) Books, papers, documents, photographs, data, tangible objects, buildings, or places, AND

b) In the possession, custody, or control of military authorities, AND

c) Either relevant to defense preparation OR intended for use by the trial counsel as evidence in the case-in-chief OR the government anticipates using the material in rebuttal OR was obtained from or belonged to the accused.

(1) Unlike RCM 701(a)(6) and Brady, this matter does not have to be favorable – just relevant to defense preparation.  Unfavorable matter can be disclosable under RCM 701(a)(2)(A).  See United States v. Adens, 56 M.J. 724 (Army Ct. Crim. App. 2002).  Other potential categories of RCM 701(a)(2)(A) information include: 

(a) Might affect the accused’s decision on how to plead.  United States v. Adens, 56 M.J. 724 (Army Ct. Crim. App. 2002); United States v. Trigueros, 69 M.J. 604 (Army Ct. Crim. App. 2010). 

(b) May inform lines of investigation, defenses, or trial strategies.  United States v. Eshalomi, 22 M.J. 12 (C.M.A. 1986); United States v. Webb, 66 M.J. 89 (C.A.A.F. 2008).

(c) Information defense could use to persuade the convening authority not to refer the case.  United States v. Eshalomi, 22 M.J. 12 (C.M.A. 1986).

(d) Inadmissible information that is nonetheless relevant to defense preparation.  United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011).

(2) Trial counsel’s duty to search: 

(a) The government must make good faith efforts to comply with defense requests.  United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999). 

(b) “The government cannot intentionally remain ignorant and then claim it exercised due diligence.”  United States v. Trigueros, 69 M.J. 604 (Army Ct. Crim. App. 2010). 

(c) United States v. Stellato, 47 M.J. 473 (2015):  “[A] trial counsel cannot avoid R.C.M. 701(a)(2)(A) through ‘the simple expedient of leaving relevant evidence to repose in the hands of another agency while utilizing his access to it in preparing his case for trial.’”  The court determined that the government need not physically possess an object for it to be within the possession, custody, or control of military authorities.  Generally, where the trial counsel has knowledge that an entity has potentially disclosable material and the trial counsel has access to that material, then the trial counsel must review the material to determine whether it meets disclosure requirements. 

(d) United States v. Shorts, 76 M.J. 523 (Army Ct. Crim. App. 2017):  If the defense seeks specific information through RCM 701(a)(2) that the government is not aware of, the discovery request under RCM 701(a)(2) must be specific and accurate enough that the trial counsel, through the exercise of due diligence, knows where to look (or where to provide the defense access).  “We cannot find the trial counsel erred under R.C.M. 701(a)(2) when he: 1) failed to produce something that was not requested; 2) had no knowledge whatsoever of its existence; and 3) exercised due diligence in responding to the defense request he did receive. A trial counsel does not violate R.C.M. 701(a)(2) when he looks for information in the exact place the defense requested.”  In Shorts, the defense requested an administrative investigation related to the case that was conducted in another unit that the trial counsel was not tracking; however, the defense gave the trial counsel the wrong unit name and the wrong investigating officer name.

2. Reports (after service of charges and upon defense request).  RCM 701(a)(2)(B).

a) Results or reports of physical or mental examinations, and of scientific tests or experiments, AND

b) In the possession, custody, or control of military authorities, the existence of which is known or by the exercise of due diligence may become known to the trial counsel, AND

c) Either relevant to defense preparation OR intended for use by the trial counsel as evidence in the case-in-chief OR the government intends to use the material in rebuttal.

(1) United States v. Jackson, 59 M.J. 330 (C.A.A.F. 2004):  Defense counsel specifically requested “any reports, memos for record or other documentation relating to Quality Control and/or other documentation relating to Quality Control and/or inspections pertaining to quality control at the Brooks Lab for the three quarters prior to [the accused]’s sample being tested, and the available quarters since [the accused]’s sample was tested.”  The lab failed to identify a blind quality control sample by reporting a negative sample as a positive less than four months after the accused’s sample was tested and less than three months after the defense’s request.  The trial counsel failed to discover and disclose the report to the defense.  That failure violated the accused’s rights under RCM 701(a)(2)(B).  The CAAF found prejudice because had the information been disclosed, the defense could have used the information to demonstrate the existence of quality control problems.

3. Sentencing information (upon request).  RCM 701(a)(5).

a) Written material that will be presented by the prosecution during the presentencing proceedings.

(1) Trial counsel are not required to disclose written matters intended to be offered in rebuttal of an accused’s presentencing case where the matter could not have been offered during government’s presentencing case.  United States v. Clark, 37 M.J. 1098 (N.M.C.M.R. 1993).

b) Names and contact information of witnesses the trial counsel intends to call during the presentencing proceedings.

(1) Rule of Practice 2.1.8 requires notice no later than seven duty days prior to trial and does not require a defense request for this information.

4. Notice of uncharged misconduct (reasonable notice in advance of trial).  MRE 404(b).

a) Upon defense request, the government must provide reasonable pretrial notice of the general nature of evidence of other crimes, wrongs, or acts which it intends to introduce at trial for some nonpropensity purpose.

5. Statements by a witness who has testified (after testimony).  RCM 914.

a) A witness, not the accused, testifies. Upon a motion by the party who did not call the witness, the judge shall order disclosure of any “statement” by the witness in the possession of the other party (i.e., the United States or the accused/defense counsel) that relates to the subject of his testimony. 

b) RCM 914 is a counterpart to the Jencks Act, 18 U.S.C. § 3500.  Much of what the government would have to disclose to the defense under RCM 914 will also fall under other discovery rules like RCM 701(a)(1), (2), or (6), and Brady.  Therefore, this requirement should generally not become a show-stopper at trial.

c) Remedy for non-disclosure. “[M]ilitary judge shall order that the testimony of the witness be disregarded by the trier of fact and that the trial proceed, or, if it is the trial counsel who elects not to comply, shall declare a mistrial if required in the interest of justice.” RCM 914(e).

d) What counts as a statement?

(1) “A written statement made by the witness that is signed or otherwise adopted or approved by the witness.”  RCM 914(f)(1).

(2) “A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in a recording or a transcription thereof.”  RCM 914(f)(2); United States v. Holmes, 25 M.J. 674 (A.F.C.M.R. 1987). See also United States v. Clark, No.19-0411 Crim. App. No. 20170023 (C.A.A.F. 2020) (holding that a CID agent's questions to an accused during an interview constituted a video-recorded statement, and government's inability to produce portions of the video after the agent testified was a violation of RCM 914).

(3) CID Agent investigator notes:  If the agent testifies or if a witness who has reviewed and approved the agent’s notes testifies, the notes must be produced under this rule. Goldberg v. United States, 425 U.S. 94 (1976); United States v. Smaldone, 484 F. 2d 311 (10th Cir. 1973).  If the agent does not testify, then the defense will have to look to another rule to seek discovery. 

(4) Article 32 testimony.  United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015):  Military judge did not err in striking the in court testimony of the alleged victim where the government negligently deleted the recording of the cross-examination and redirect of the alleged victim at the Article 32 preliminary hearing.  The military judge was not required to conduct a prejudice analysis or conclude that the recordings were lost in bad faith to strike the testimony.  In his report, the preliminary hearing officer had recommended the charges not proceed due to his concerns about the alleged victim’s credibility.

(5) Administrative board hearings.  United States v. Staley, 36 M.J. 896 (A.F.C.M.R. 1993):  Military judge found that statements made by witnesses before an administrative discharge board were within the general mandate of RCM 914. 

(6) Drafts and notes:

(a) United States v. Guthrie, 25 M.J. 808 (A.C.M.R. 1988):  No Jencks Act violation when a handwritten statement was destroyed after a typed version was created and adopted by the witness.

(b) United States v. Merzlak, 1992 CMR LEXIS 832 (A.F.C.M.R. 1992):  Interview notes are generally not a statement where not written by witness, not signed, adopted, or approved by witness, and not a substantially verbatim recording.  To determine whether or not a party has to disclose witness interview notes under RCM 914, you have to look at whether the notes are adopted or approved by the witness after they review them, or whether they are a substantially verbatim recitation of what was said made at the time it was said (near a summarized transcript).

(c) United States v. Douglas, 32 M.J. 694 (A.F.C.M.R. 1991):  An informant did not keep his notes about an investigation.  “Whenever military law enforcement agents request that an informant prepare written notes regarding an on-going investigation, those notes should be obtained from the informant and included in the investigative case file.”

C. Privilege:  prior to disclosing any information to the defense, trial counsel must ensure that they carefully check to determine that the materials do not contain anything that falls under one of the privileges set forth in Section V of the MREs or that constitutes attorney work product.  If any information is potentially privileged, trial counsel must refer to the specific rule in Section V to determine the proper procedure to determine if/how the privileged material will be disclosed.

D. Standards of review for nondisclosure on appeal

1. Specific defense request for disclosure (Hart test):  if the government failed to disclose information specifically requested by the defense, “the appellant is entitled to relief unless the government can show that the nondisclosure is harmless beyond a reasonable doubt.  If the nondisclosure ‘might have’ effected the verdict, the government’s non-disclosure will not be harmless beyond a reasonable doubt.”  United States v. Ellis, 77 M.J. 671 (Army Ct. Crim. App. 2018); see also United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004).

a) A specific request: identifies the specific file, document, or evidence; reasonably identifies the location of the evidence or the custodian; and provides a statement of the expected materiality of the evidence to the preparation of the defense case.  United States v. Ellis, 77 M.J. 671 (Army Ct. Crim. App. 2018).

2. Brady violations:  if the information is material to the appellant’s case, the courts will “provide relief to an appellant upon finding a reasonable probability that the verdict would have been different had the government provided the information in question.”  United States v. Ellis, 77 M.J. 671 (Army Ct. Crim. App. 2018).

3. No specific defense request and not a Brady violation:  “if the government violates any other disclosure requirement, [the courts] will test for material prejudice to a substantial right in accordance with Article 59(a), UCMJ.”  United States v. Ellis, 77 M.J. 671 (Army Ct. Crim. App. 2018).

V. Defense Discovery Responsibilities

A. Mandatory disclosure or notice requirements for defense counsel

1. Notice of plea and forum.  Unless the judge sets a different deadline, defense counsel will notify trial counsel and the judge, in writing, at least ten duty days before an Article 39(a) session to resolve motions or the date of trial (whichever is earlier), of the forum and pleas.  Rule of Practice 2.2.1.

2. Notice of certain defenses (before the beginning of trial on the merits).  RCM 701(b)(2):  The defense shall give notice before the beginning of trial on the merits of its intent to offer the defense of:

a) Alibi, to include the place or places at which the defense claims the accused to have been at the time of the alleged offense.

b) Innocent ingestion, to include the place or places where, and the circumstances under which the defense claims the accused innocently ingested the substances in question.

(1) United States v. Lewis, 51 M.J. 376 (C.A.A.F. 1999): The trial judge erroneously prevented the accused from presenting an innocent ingestion defense because the defense could not give notice of places where the innocent ingestion occurred and witnesses to be relied upon.  The judge prevented the accused from raising this defense herself by her testimony alone. CAAF reversed, holding that RCM 701(b)(2) does not require corroborative witnesses or direct evidence as a condition for raising innocent ingestion.

c) Lack of mental responsibility, or use of expert testimony on mental condition. 

d) Notice shall include names and addresses of witnesses to be relied upon to establish these defenses.

e) Rule of Practice 2.2.4 requires notice at least ten duty days before trial.

3. Merits witnesses list and statements (before beginning of trial on the merits).  RCM 701(b)(1)(A).

a) The defense shall notify the trial counsel of the names and contact information of all witnesses, other than the accused, whom the defense intends to call during the defense case-in-chief, and shall provide all sworn or signed statements known by the defense to have been made by such witnesses in connection with the case.

b) Rule of Practice 2.2.5 requires notice no later than seven duty days prior to trial.

4. Evidence of the victim’s sexual behavior or predisposition (defense must file a motion at least 5 days prior to entry of plea).  MRE 412(c).

B. Disclosures or notices made upon government request (not based on reciprocity)

1. Sentencing witnesses (upon request).  RCM 701(b)(1)(B)(i):  Provide trial counsel with names and contact information of any witness the defense intends to call at the presentencing proceeding.

a) Rule of Practice 2.2.5 requires disclosure of witness lists no later than 7 duty days before trial.

2. Written presenting material (upon request).  RCM 701(b)(1)(B)(ii):  Permit trial counsel to inspect any written material that will be presented by the defense at the presentencing proceeding.

3. Statements by a witness that testifies (after testifying, upon motion).  RCM 914:  for a complete discussion of RCM 914, see Section IV.B.5 supra.

C. Disclosures made upon government requests (based on reciprocity).  If the defense requests discovery under RCM 701(a)(2), upon compliance with such request by the government, the defense, on request of the trial counsel, shall permit the trial counsel to inspect and photograph/copy:

1. Books, papers, documents, data, photographs, or tangible objects within the possession, custody or control of the defense and which the defense intends to introduce as evidence in the defense case-in-chief.  RCM 701(b)(3).

a) Defense not required to disclose surrebuttal evidence. United States v. Stewart, 29 M.J. 621 (C.G.C.M.R. 1989).

2. Results or reports of physical or mental examinations and scientific tests or experiments within the possession, custody or control of the defense and which the defense intends to introduce as evidence in the defense case-in-chief or which were prepared by a defense witness who will be called at trial (except as provided in RCM 706, MRE 302, and MRE 513). RCM 701(b)(4).

D. Privilege:  prior to disclosing any information to the government, defense counsel must ensure that they carefully check to determine that the materials do not contain anything that falls under one of the privileges set forth in Section V of the MREs or that constitutes attorney-client communications or attorney work product.  If any information is potentially privileged, counsel must refer to the specific rule in Section V to determine the proper procedure to determine if/how the privileged material will be disclosed.

E. Defense discovery requests:  see discussion of government discovery/disclosures due upon request supra at Section IV.B

VI. Regulation of Discovery

A. General.  The basic procedural rules for discovery, to include the basic remedies available for noncompliance, come from RCM 701(g).  However, many discovery rules and rules with notice requirements contain their own remedies for noncompliance. 

B. Pretrial orders:  The military judge may issue pretrial orders that regulate when the parties will provide notices and make disclosures to the other party.

1. “The military judge may, consistent with this rule, specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just.” RCM 701(g)(1).

2. Note that the Rules of Practice also contain guidance regarding the conduct of discovery, including specific procedures and timelines.

C. Protective and modifying orders

1. A party may seek relief from a discovery obligation (i.e., that discovery be denied, restricted or deferred) by providing the military judge with a sufficient showing that relief is warranted.  RCM 701(g)(2); see generally RCM 906(b)(7) (motion for appropriate relief – discovery). 

2. In camera review

a) Upon motion or if a rule requires, the military judge may review any materials in camera or permit a party to make a showing, in whole or in part, in writing to be inspected only by the judge.  In the case of in camera review, the military judge must attach any materials examined by the judge to the record of trial as an appellate exhibit.  The military judge must seal any materials examined in camera that were not disclosed to the accused.  RCM 701(g)(2).

(1) Failure of military judge to seal and attach military records of government's key witness, after denying defense request for their disclosure for impeachment purposes, made proper appellate review impossible.  United States v. Abrams, 50 M.J. 361 (C.A.A.F. 1999).

(2) Military judges can allow the defense counsel to perform a review for materiality under a protective order to enable them to make informed arguments about discoverability.  United States v. Abrams, 50 M.J. 361 (C.A.A.F. 1999).

(a) When trial judges consider whether the information is relevant to defense preparation they should remember that they may not be in the best position to judge what is relevant and what is not:  “An apparently innocent phrase, a chance remark, a reference to what appears to be a neutral person or event, the identity of a caller or the individual on the other end of a telephone, or even the manner of speaking or using words may have special significance to one who knows the more intimate facts of an accused's life.  And yet that information may be wholly colorless and devoid of meaning to one less well acquainted with all relevant circumstances.”  Alderman v. United States, 394 U.S. 165 (1969).

b) Potential situations that may warrant in camera review:

(1) Matters are privileged (see Section V, MRE as each MRE regarding privilege has its own procedures governing if/how privileged materials are disclosed)

(2) Medical records, mental health records, therapist notes:  United States v. Cano, 61 M.J. 74 (C.A.A.F. 2005); United States v. Abrams, 50 M.J. 361 (C.A.A.F. 1999); United States v. Briggs, 48 M.J. 143 (C.A.A.F. 1998); United States v. Kelly, 52 M.J. 773 (Army Ct. Crim. App. 1999); United States v. Trigueros, 69 M.J. 604 (Army Ct. Crim. App. 2010).

(3) Personnel records.  United States v. Kelly, 52 M.J. 773 (Army Ct. Crim. App. 1999).

(4) Inspector General’s Report of Inquiry.  United States v. Sanchez, 50 M.J. 506 (A.F. Ct. Crim. App. 1999).

D. Remedies for nondisclosure.  RCM 701(g)(3):  At any time during the court-martial, if a party has failed to comply with RCM 701, the military judge can take one or more of the following actions:

1. Order discovery.  RCM 701(g)(3)(A).

2. Grant a continuance (common remedy).  RCM 701(g)(3)(B).

a) United States v. Trimper, 28 M.J. 460 (C.M.A. 1989):  Defense counsel moved to preclude use of a urinalysis report that was disclosed by the government just before trial. The military judge denied the request for exclusion, but granted a continuance, which was an appropriate remedy. 

b) United States v. Murphy, 33 M.J. 323 (C.M.A. 1991):  Government did not disclose its sole witness (an eyewitness accomplice) that they learned of the night before trial, but used the witness on rebuttal.  Exclusion of testimony was not necessary. Violation of disclosure was adequately remedied by military judge’s actions in granting accused a continuance for several hours to allow the defense to interview the witness, read her statement, interview the investigator that interviewed the witness, and conduct background checks of the witness.

3. Prohibit introduction of the evidence, calling a witness, or raising a defense not disclosed.  RCM 701(g)(3)(C).

a) Factors to consider in determining whether to grant this remedy. RCM 701(g)(3) discussion):

(1) The extent of disadvantage that resulted from a failure to disclose;

(2) The reason for the failure to disclose;

(3) The extent to which later events mitigated the disadvantage caused by the failure to disclose;

(4) Any other relevant factors.

b) Excluding defense evidence:

(1) RCM 701(g)(3) discussion.

(a) Only use this sanction upon finding that the defense counsel’s failure to comply was willful and motivated by a desire to obtain tactical advantage or to conceal a plan to present fabricated testimony, and if alternative sanctions could not have minimized the prejudice to the government.

(b) Before imposing the sanction, the military judge must weigh the right to compulsory process against the countervailing public interests, including:

(i) The integrity of the adversarial process;

(ii) The interest in the fair and efficient administration of justice;

(iii) The potential prejudice to the truth-determining function of the trial process.

(2) The Sixth Amendment right to present witnesses is not absolute.  Taylor v. Illinois, 484 U.S. 400 (1988):  The sword of compulsory process cannot be used irresponsibly. Excluding testimony is allowable; however, alternative sanctions will be adequate and appropriate in most cases. 

(3) United States v. Nobles, 422 U.S. 225 (1975):  Defense expert testimony excluded because expert refused to permit discovery of a “highly relevant” report. “The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth.” 

(4) Michigan v. Lucas, 500 U.S. 145 (1991): The Court held that the state court of appeals erred in holding that the exclusion of evidence for the violation of a notice requirement under a state rape-shield law always violates the Sixth Amendment. The preclusion may be appropriate where willful misconduct is designed to gain a tactical advantage over the prosecution.

(5) United States v. Pomarleau, 57 M.J. 352 (C.A.A.F. 2002):  The military judge erred by excluding defense evidence as a discovery sanction without conducting a fact-finding hearing or otherwise ascertaining the cause for untimely disclosure by the defense, and by not making findings of fact on the record as to whether less restrictive measures could have remedied any prejudice to the government.

(6) United States v. Preuss, 34 M.J. 688 (N.M.C.M.R. 1991):  Applying the RCM 703(g)(3) discussion factors, the court found that the military judge abused his discretion by excluding the defense’s alibi witness because the defense counsel failed to give notice of its intent to offer the alibi defense before the beginning of the trial.

4. Such other order as is just under the circumstances.  RCM 701(g)(3)(D), 

a) Mistrial.  RCM 915.

b) Order a deposition.  RCM 702:

(1) Depositions are primarily used to preserve testimony for later use at trial; however, depositions can be used for discovery when the government has improperly impeded defense access to a witness.  RCM 702(a) analysis, app. 21, at A21-33 (MCM 2016 ed.).   

(2) United States v. Killebrew, 9 M.J. 154 (C.M.A. 1980):  Where the government substantially impaired the defense counsel’s ability to interview a witness, the defense could have sought a deposition. 

(3) United States v. Cumberledge, 6 M.J. 203 (C.M.A. 1979):  Where the government substantially impaired the defense’s ability to interview witnesses, “timely use of the deposition process would provide the defense with meaningful discovery of these witnesses’ testimony . . .” 

c) Count the delay caused by the noncompliance against the government when calculating speedy trial. United States v. Tebsherany, 32 M.J. 351 (C.M.A. 1991) (“[T]ime requested by counsel to examine material not disclosed until the pretrial investigation might, under facts showing bad faith, be charged to the United States in accounting for pretrial delay.”).

d) United States v. Adens, 56 M.J. 724 (Army Ct. Crim. App. 2002):  The government failed to disclose unfavorable but material evidence to the defense. A government witness then testified early on in the trial regarding this undisclosed evidence. The remedies fashioned by military judge for the government’s failure to disclose the evidence included making the assistant trial counsel lead counsel for the remainder of the case, with the “quiet assistance” of the lead counsel, and exclusion of the undisclosed evidence and some related evidence. The military judge failed, however, to instruct the members to disregard the testimony from the government witness, given five days earlier, about the evidence. The court held that while the decision not to instruct the members was “understandable under the circumstances,” the failure to instruct negated the validity of the other remedies.

e) Dismissal with Prejudice. U.S. v. Stellato, 74 M.J. 473 (C.A.A.F. 2015):  On interlocutory appeal by the Government, CAAF upheld the military judge’s decision to dismiss with prejudice when the government’s multiple and repeated discovery violations resulted in lost or unaccounted for evidence which compromised the accused’s ability to mount a defense.  The military judge had determined that dismissal with prejudice was appropriate because of the “nature, magnitude, and consistency of the discovery violations.”

E. Post-Trial:  A military judge has the authority under Article 39(a), UCMJ to convene a post-trial session to consider a discovery violation and to take whatever remedial action is appropriate to include ordering a new trial.  United States v. Webb, 66 M.J. 89 (C.A.A.F. 2008).

1. Brady/RCM 701(a)(6) disclosure requirement lasts beyond trial.  If any member of the Judge Advocate Legal Service (JALS) learns of new, credible, and material evidence or information creating a reasonable likelihood that an accused did not commit an offence of which the accused has been convicted they must disclose that evidence or information.  AR 27-10, para. 5-51 (11 May 2016).

a) After adjournment but before initial action, trial counsel who learn of such evidence must disclose to defense counsel and make reasonable efforts to investigate.  Any other member of JALS making such a discovery shall disclose to the SJA. AR 27-10, para. 5-51b (11 May 2016).

b) After initial action but before final action, any member of JALS who learns of such evidence or information must promptly notify the Army Court of Criminal Appeals Clerk of Court.  AR 27-10, para. 5-51c (11 May 2016).

c) After completion of appellate review, any member of JALS who learns of such evidence or information must notify OTJAG.  From there, the Criminal Law Division must promptly forward the notice to the last known address of the accused. AR 27-10, para. 5-51d (11 May 2016).

VII. Production

A. General.

1. RCM 703(a) provides that “[t]he prosecution and defense and the court-martial shall have equal opportunity to obtain witnesses and evidence . . . including the benefit of compulsory process.”  This rule is based on Article 46, UCMJ and implements the accused’s 6th Amendment right to compulsory process.

a) Merits witnesses.  RCM 703(b)(1):  “Each party is entitled to production of any witness whose testimony on a matter in issue on the merits or on an interlocutory question would be relevant and necessary.”

(1) Evidence is relevant when it has a tendency to make a fact that is of consequence in determining the action more or less probable than it would be without the evidence.  MRE 401.

(2) Necessary means the evidence is not cumulative and would contribute to a party’s presentation of the case in some positive way on a matter in issue.  A matter is not in issue when it is stipulated as a fact.  RCM 703(b)(1) discussion. 

(3) With the consent of both parties, the military judge may allow a merits witness to testify via remote means.  On interlocutory matters, the military judge may allow a witness to testify via remote means where the practical difficulties of producing the witness outweigh the significance of the witness’s personal appearance. 

b) Sentencing witnesses.  RCM 703(b)(2):  Each party is entitled to the production of a witness whose testimony on sentencing is required under RCM 1001(f).

(1) There is much greater latitude during presentencing proceedings to receive information from witnesses testifying remotely.  RCM 1001(f)(1).

(2) RCM 1001(f)(2) criteria for in-person production during sentencing:

(a) The testimony is necessary for consideration of a matter of substantial significance to a determination of an appropriate sentence.

(b) The weight or credibility of the testimony is of substantial significance to the determination of an appropriate sentence.

(c) The other party refuses to enter into a stipulation of fact.

(d) Other forms of evidence (depositions, interrogatories, former testimony, testimony by remote means) would not be sufficient in the determination of an appropriate sentence.

(e) The significance of the personal appearance to the determination of an appropriate sentence, when balanced against the practical difficulties of producing the witness, favors production.  See RCM 1001(f)(2)(E) for a list of factors related to this balancing test.

c) Evidence.  RCM 703(e)(1):  Each party is entitled to production of evidence that is relevant and necessary. 

(1) Generally, the government has no responsibility to create records to satisfy demands for them.  United States v. Birbeck, 35 M.J. 519 (A.F.C.M.R. 1992) (military judge did not err in denying defense request for the government to create laboratory reports on two negative urinalyses).  The court used “discovery” language rather than “production” language.  If the government will not produce a report, the defense can seek the employment of an expert witness, who can then test the evidence and produce a report.  United States v. Walker, 66 M.J. 721 (N-M Ct. Crim. App. 2008). 

2. How the process works:

a) The parties identify the witness or evidence that they want produced. 

b) The trial counsel secures the presence of the witnesses or evidence required by the government.  The defense submits its production requests to the trial counsel. 

c) The trial counsel secures the presence of defense witnesses and evidence that the government determines meet production standards.  If the trial counsel contends that defense witnesses or evidence do not satisfy the production standards, the trial counsel denies production of those witnesses or evidence, and tells the defense. 

d) The defense may file a motion to compel production with the military judge.  The military judge rules on the motion to compel production.

e) If the military judge grants the defense motion to compel production in whole or in part, the trial counsel secures the presence of those witnesses and/or evidence.  The trial counsel arranges for orders or subpoenas of witnesses, depending on the witnesses’ status, and arranges for requests or subpoenas for evidence, depending on who controls the evidence.

B. Pre-referral production of evidence through investigative subpoenas

1. Neither the trial counsel nor the military judge can issue a subpoena compelling a person to appear to provide testimony or a statement for use in an investigation or testify in a preliminary hearing.

2. The trial counsel (with authorization of the GCMCA) or a military judge pursuant to a RCM 309 proceeding, may issue investigative subpoenas prior to referral for the production of evidence not under the control of the government for use in an investigation.  RCM 703(g)(3)(C)(i).

a) Absent exceptional circumstances, a victim named in a specification must be given notice of a subpoena requiring production of personal or confidential information about the victim so that the victim can move for relief under RCM 703(g)(3)(G) or otherwise object.  RCM 703(g)(3)(C)(ii).  

C. Production process for prosecution witnesses and evidence:  The government shall obtain the presence of witnesses and evidence for the prosecution whose testimony the trial counsel considers to be relevant and necessary.  RCM 703(c)(1); RCM 703(f). 

D. Production process for defense witnesses and evidence

1. Defense submits a production request to the trial counsel

a) Witness and evidence production lists must be submitted in reasonably sufficient time to give the government a chance to get the witnesses and evidence.  RCM 703(c)(2)(C); RCM 703(f).  The military judge may set a date for production requests in the pretrial order, and can grant a continuance if the defense submits a request late in the proceedings.

(1) Rule of Court 2.2.3 sets a deadline of 10 duty days prior to trial or an Article 39a session unless the military judge sets a different deadline.

b) Witness requests.  RCM 703(c)(2):  The defense shall submit to the trial counsel a written list of the witnesses that the defense wants the government to produce.

(1) Merits and interlocutory questions…requests shall include:

(a) Name, phone number if known, address, or location where witness can be found; and

(b) A synopsis of the expected testimony sufficient to show its relevance and necessity.

(2) Sentencing…requests shall include:

(a) Name, phone number if known, address, or location where witness can be found; and

(b) A synopsis of the expected testimony and why personal appearance is necessary under the standards set forth in RCM 1001(f).

c) Evidence.  RCM 703(f):

(1) Defense requests for evidence shall:

(a) List the items of evidence to be produced;

(b) Include a description of each item sufficient to show relevance and necessity; and

(c) Include a statement of where it can be obtained; and, if known, the name, address, and telephone number of the custodian of the evidence. 

2. Trial counsel evaluates defense production requests and either arranges for the presence of defense-requested witnesses and evidence, or contends that production is not required.  RCM 703(c)(2)(D); RCM 703(f).

a) Denials of witnesses/evidence whose production is requested by the defense must be made in writing and must detail the reasons for denial.  Rule of Practice 2.2.3.

3. If trial counsel contends that the defense requests for witness/evidence production are not required by the rules, then the defense may file a motion to compel production with the military judge.  RCM 703(c)(2)(D); RCM 703(f); RCM 906(b)(7).

a) If the military judge grants a motion to compel production, the trial counsel shall produce the witness or evidence, or the proceedings shall be abated.  RCM 703(c)(2)(D); RCM 703(f). 

b) The standard of review for the denial of a request for production is abuse of discretion.  United States v. Powell, 49 M.J. 220 (C.A.A.F. 1998); United States v. Mosley, 42 M.J. 300 (C.A.A.F. 1995).  If the military judge abused her discretion, then the test for prejudice is harmless beyond a reasonable doubt.  United States v. Powell, 49 M.J. 220 (C.A.A.F. 1998).

4. Unavailable witnesses and evidence

a) A party is not entitled to the presence of a witness who is unavailable under MRE 804(a) or evidence that is destroyed, lost, or otherwise not subject to compulsory process. 

b) However, if the testimony or the evidence is of such central importance to an issue that is essential to a fair trial, and there is no adequate substitute, the military judge shall:

(1) Grant a continuance or other relief in order to attempt to secure the witness or evidence; or

(2) Shall abate the proceedings.  RCM 703(b)(3); RCM 703(e)(2).

c) A party cannot seek a remedy under this rule if they are the reason that the evidence is unavailable.  RCM 703(b)(3); RCM 703(e)(2). 

d) There is no “bad faith” requirement.  The defense can seek a remedy under this rule even if the government was not at fault when destroying the evidence, or was simply negligent in losing the evidence.  United States v. Simmermacher, 74 M.J. 196 (C.A.A.F. 2015).  “An adverse inference instruction is an appropriate curative measure for improper destruction of evidence.”  United States v. Ellis, 57 M.J. 375 (C.A.A.F. 2002). 

e) Cases. 

(1) United States v. Terry, 66 M.J. 514 (A.F. Ct. Crim. App. 2008):  After the first trial, the government lost or destroyed almost all of the physical evidence in a rape case.  The second trial judge dismissed the related charges.  The appellate court found that there were adequate substitutes and the evidence did not go to an issue of central importance.  

(2) United States v. Barreto, 57 M.J. 127 (C.A.A.F. 2002): Appellant caused a car accident, killing a passenger and injuring himself. The government was unable to locate two unknown witnesses to the fatal traffic accident whom the defense requested, despite efforts that included running ads in German and U.S. newspapers. The defense moved to compel their production, or, in the alternative, abate the proceedings until the witnesses could be produced. The court found that these witnesses were unavailable and that other eyewitnesses with unobstructed views of the accident who testified at trial were an adequate substitute for the potential testimony of the unknown witnesses.

(3) United States v. Eiland, 39 M.J. 566 (N.M.C.M.R. 1993):  Military judge abated the proceedings when the government failed to produce two critical witnesses requested by the defense in a rape case. One witness was the doctor who examined the alleged victim and the other witness was another employee of the hospital who observed her demeanor.  Defense refused to stipulate. No abuse of discretion in abating trial when testimony is “of such central importance to an issue that it is essential to a fair trial.”

5. Procedures to facilitate production

a) Military witnesses on Active Duty.  RCM 703(g)(1):  Trial counsel notifies the witness’s commander of the time, place, and date of the proceedings, and requests that the commander issue any necessary orders.

b) Evidence under control of the government.  RCM 703(g)(2):  Trial counsel notifies the custodian of the evidence of the time, place, and date evidence is required and requests that the custodian send or deliver the evidence.

c) Civilian witnesses and evidence.  RCM 703(g)(3):  Trial counsel can issue a subpoena for witnesses not on active duty/evidence custodians not under the control of the government, who are within the United States for a court-martial occurring in the U.S. if it appears that a civilian witness will not appear, or a civilian custodian will not produce requested evidence, through noncompulsory means. 

(1) Subpoenas can be used for court-martial, military commission, court of inquiry, or deposition, but not for pretrial interviews or preliminary hearings.  UCMJ art. 46(c).

(2) Subpoenas can be issued by the summary court-martial, trial counsel, president of a court of inquiry, or an officer detailed to take a deposition.  They are usually issued by the trial counsel. RCM 703(g)(3)(D).

(3) Issuing authority should use DD Form 453.  See the content requirements of RCM 703(g)(3)(B) and service instructions of RCM 703(g)(3)(E).  Note that a subpoena may be served informally by certified first class mail, return receipt requested, and must be formally served by personal delivery.  AR 27-10, para. 5-22(a) (11 May 2016). 

(4) Subpoenas are not required for civilian witnesses who will voluntarily appear, and are typically not required for civilian Department of Defense employees.

d) Relief from a subpoena.  RCM 703(g)(3)(G):  Subpoena recipients can request relief from a subpoena on the grounds that compliance would be unreasonable, oppressive, or prohibited by law, from the military judge or, if prior to referral, a military judge detailed under Article 30a.  The military judge will review the request and order that the subpoena be modified or quashed, or order the person to comply with the subpoena.

(1) United States v. Rodriguez, 57 M.J. 765 (N-M Ct. Crim. App. 2002):  Law enforcement agents invited NBC for a “ride along” where an NBC videographer may have taped the scene of the traffic stop and search of appellant’s vehicle.  The accused filed a motion to suppress based on violations of his Fourth Amendment rights and believed that the video may contain evidence in support of his motion.  NBC provided a videotape of the broadcast material of the traffic stop but stated that it relied on its First Amendment privilege regarding the production of the video “outtakes” and reporter’s notes. The trial defense counsel requested the military judge to order production of any remaining videotape.   The military judge denied the defense request to compel production.  The appellate court stated that, essentially, the accused asked for production; NBC asked for relief; and the trial counsel supported that with a motion to quash the subpoena.  The court found that the accused never met his burden for production: relevance and necessity.  Even if it had, and assuming the evidence was unavailable under RCM 703(e)(2) because it was not subject to compulsory process, the evidence was not of central importance to an issue that was essential to a fair trial.  The military judge should have at least reviewed the material in camera, though.

(2) United States v. Wuterich, 67 M.J. 63 (C.A.A.F.  2008):  The accused gave an interview to CBS.  CBS broadcast a portion of the interview and the government issued a subpoena for the remainder.  The military judge did not conduct an in camera review and ordered the subpoena quashed.  The court remanded for an in camera review and suggested that if the outtakes were not cumulative, then production and a subpoena would be appropriate.

(3) United States v. Reece, 25 M.J. 93 (C.M.A. 1987):  The military judge should have conducted an in camera inspection of the victims’ treatment and disciplinary records.  The defense counsel “made as specific a showing of relevance as possible, given that he was denied all access to the documents.” Witness credibility would be central in this case because there were no eyewitnesses. The court held that the military judge abused his discretion in failing to order production of the requested records for an in camera review.

(4) United States v. Harding, 63 M.J. 65 (C.A.A.F. 2006):  Defense counsel requested production of a rape victim’s medical records during discovery.  Trial counsel subpoenaed the requested records; however the custodian, a private social worker who had counseled the victim, refused to produce the records.  Defense counsel filed a motion asking the military judge to order production of the records, which he agreed to do after a hearing where he considered MRE 513 and decided an in camera review would be appropriate.  When the social worker still declined to produce the records, military judge issued a warrant of attachment.  The warrant of attachment authorized the United States Marshal Service to seize the records and deliver them to the judge.  The Marshal Service failed to seize the records, instead merely asking the social worker to produce the records, and gave up when she declined to do so.  Faced with the government’s failure to enforce the warrant of attachment, and deciding that the case could not proceed without in camera consideration of the records, the military judge abated the proceedings with regard to the rape charge.  Appellate courts upheld the military judge.

6. Enforcement of compulsory process

a) If a person subpoenaed neglects or refuses to appear, or refuses to produce evidence, a military judge (or a military judge detailed under Article 30a or the GCMCA before referral) may issue a warrant of attachment to compel attendance or production.  RCM 703(g)(3)(H).

(1) A warrant of attachment is issued only upon probable cause to believe that the witness/custodian was duly served with the subpoena, that fees and mileage were tendered, that the witness/evidence was material, that the witness/custodian refused or willfully neglected to appear, and that no valid excuse exists.  RCM 703(g)(3)(H)(ii).

(2) Only non-deadly force may be used to bring the witness/custodian before the court-martial.  The witness/custodian should be released as soon as possible after testifying or providing the evidence.  RCM 703(g)(3)(H)(iv).

(3) Although a warrant of attachment can be executed by any person who is 18 years of age or over, it should be executed by a civilian officer of the United States where practicable.  AR 27-10, para. 5-22(b) (11 May 2016). 

b) Refusal to appear or testify is a separate offense under Article 47.

(1) A person not subject to the UCMJ who was issued a subpoena and provided a means of reimbursement, but willfully neglects or refuses to appear, qualify as a witness, testify, or produce any evidence required to be produced is guilty of an offense against the United States.  UCMJ art. 47(a). 

(2) Such persons shall be tried in U.S. District Court by a U.S. Attorney.  UCMJ art. 47(b)-(c).

 

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