2010 (September Term)
United States v. Behenna, 71 M.J. 228 (pursuant to Brady v. Maryland, 373 US 83 (1963), the government violates an accused’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment; evidence is favorable if it is exculpatory, substantive evidence or evidence capable of impeaching the government’s case; evidence is material when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different; to be material, the evidence must have made the likelihood of a different result great enough to undermine confidence in the outcome of the trial).
(even if evidence from a nontestifying expert witness associated with the government’s case was favorable and not properly disclosed by the government, in violation of Brady v. Maryland, 373 US 83 (1963), the evidence was immaterial both as substantive and impeachment evidence, where the witness’s testimony, at most, would have made appellant’s version of events more likely (that is, that appellant shot a detainee as he stood and reached for appellant’s pistol; in turn, whether the detainee remained seated or stood when he was shot was only relevant to two issues: premeditation and self-defense), but it would have been similar to the opinion of other defense experts, his opinion could have been impeached by his failure to provide a reasonably certain or consistent opinion, the members rejected the government’s theory of a premeditated, execution-style killing in returning a verdict that appellant was guilty of unpremeditated murder, and the witness’s testimony could not have independently established the factual predicate for a self-defense theory; rather, it would have only bolstered appellant’s version of events; assuming the truth of appellant’s version of what transpired in the culvert, he had lost the right to act in self-defense as a matter of law).
United
States v. Lofton, 69 M.J. 386 (where text
messages between family members of
victims who were seated inside of the courtroom and victims who were
seated
outside of the courtroom were not in the custody or control of the
government,
the trial counsel did not have an obligation to produce them).
United
States v. Luke, 69 M.J. 309 (the military
rules pertaining to discovery
focus on equal access to evidence to aid the preparation of the defense
and
enhance the orderly administration of military justice; to this end,
the
discovery practice is not focused solely upon evidence known to be
admissible
at trial; the parties to a court-martial should evaluate pretrial
discovery and
disclosure issues in light of this liberal mandate).
(an accused’s right to
discovery is not
limited to evidence that would be known to be admissible at trial; it
includes
materials that would assist the defense in formulating a defense
strategy).
(an appellate court may
resolve a discovery
issue without determining whether there has been a discovery violation
if the
court concludes that the alleged error would not have been
prejudicial).
(even if the military judge
erred in holding
that the government was not required to provide the defense with a
prosecution
exhibit relating to statistical probabilities that it had prepared to
use on
redirect examination of a government expert witness in statistical
genetics,
the error was harmless and not prejudicial, where (1) on direct
examination,
trial counsel elicited from the expert a full explanation of the
statistics
presenting the likelihood that biological evidence in the case linked
appellant
to the physical evidence, (2) on redirect, the exhibit was simply a
piece of
demonstrative evidence that did no more than reiterate the expert’s
testimony
on direct examination, (3) the defense had all of the information about
databases and populations necessary to understand how the calculations
in that
exhibit and all the other demonstrative exhibits were derived, and (4)
given
the multiple statistical formulations presented on direct examination,
one
additional calculation of the odds that the physical evidence was
attributable
to appellant would not have tipped the scales against him).
United
States v. Jones, 69 M.J. 294 (Article 46,
UCMJ, requires that the trial
counsel, the defense counsel, and the court-martial have equal
opportunity to
obtain witnesses and other evidence in accordance with such regulations
as the
President may prescribe; Article 46, UCMJ, is implemented through RCM
701, and
RCM 701(a)(2)(A) provides that after service of charges, upon request
of the
defense, the government shall permit the defense to inspect any books,
papers,
documents, and photographs which are within the possession, custody, or
control
of military authorities, and which were obtained from or belong to the
accused).
(in accordance with RCM
701(g)(1), the
military judge may specify the time, place, and manner of making
discovery and
may prescribe such terms and conditions as are just; thus, it could be
within
the military judge’s discretion to deny a mid-providence request to
stop the
trial for an accused to review evidence).
(a military judge abused his
discretion when
he prohibited a pretrial review of evidence of receipt of child
pornography on
the scant rationale that “it is what it is,” where both the government
and
defense had agreed to such a review, and there was no argument that the
scheduled
pretrial review would have interfered in the trial proceedings).
United
States v. Graner, 69 M.J. 104 (the trial
counsel, the defense counsel, and
the court-martial shall have equal opportunity to obtain evidence
in
accordance with such regulations as the President may prescribe; the
government’s suppression of evidence is a statutory violation if it
violates
the President’s discovery rules, promulgated under Article 46, UCMJ,
which
appear in RCM 701-703; three of these rules are: (1) each party is
entitled to
the production of evidence which is relevant and necessary, (2) upon
the
request of the defense, the government must produce any documents that
are in
the possession of military authorities and are material to the
preparation of
the defense or are intended for use by the trial counsel as evidence in
the
prosecution case-in-chief at trial, and (3) the trial counsel must
disclose to
the defense the existence of evidence known to the trial counsel which
reasonably
tends to (a) negate the guilt of the accused of an offense charged, (b)
reduce
the degree of guilt of the accused of an offense charged, or (c) reduce
the
punishment; of course, these rules are themselves grounded on the
fundamental
concept of relevance).
(a military judge did not
abuse his discretion
in determining that the defense did not present an adequate theory of
relevance
to justify the compelled production of a DoD report regarding the
duties owed
to detainees during an interrogation; appellant, who was charged with
the
maltreatment of Iraqi detainees at an American-operated detainee
facility in
Iraq, presented no evidence that his state of mind at the facility was
in any
way affected by this DoD report that he had never seen; in addition,
appellant’s affirmative duty to protect the detainees under his charge
from
abuse was not affected by any views on the international legal status
of Iraqi
detainees set out in the report; finally, appellant failed to present
any facts
which, if true, would constitute unlawful command influence).
(a military judge did not
abuse his discretion
in declining to order the production of various documents that
appellant
maintained on appeal that he requested; RCM 703(f)(3) requires that any
request
for the production of evidence shall list each piece of evidence and a
description of each item sufficient to show its relevance and
necessity, a
statement where it can be obtained, and, if known, the name, address,
and
telephone number of the custodian of the evidence; the defense failed
to meet
this burden with respect any of these documents with the exception of a
DoD
report).
2008 (Transition)
United
States v. Webb, 66 M.J. 89 (the Due Process
Clause of the Fifth Amendment
guarantees that criminal defendants be afforded a meaningful
opportunity to
present a complete defense; that guarantee requires the prosecution to
disclose
to the defense evidence favorable to an accused where the evidence
is
material either to guilt or to punishment; favorable evidence includes
impeachment evidence that, if disclosed and used
effectively, may
make the difference between conviction and acquittal).
(like other forms of
exculpatory evidence,
impeachment evidence is material to guilt or punishment only if there
is a
reasonable probability that, had the evidence been disclosed to the
defense,
the result of the proceeding would have been different; under the
reasonable
probability standard of materiality, the question is not whether the
accused
would more likely than not have received a different verdict with the
evidence,
but whether in its absence he received a fair trial; therefore, a
reasonable
probability of a different result is shown when the government’s
evidentiary
suppression undermines confidence in the outcome of the trial; failing
to
disclose such evidence is a due process violation irrespective of the
good
faith or bad faith of the prosecution).
(in military practice, the
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; subject to certain exceptions and upon request
of the
defense, the trial counsel must permit the defense to inspect any
documents
within the custody, or control of military authorities that are
material to the
preparation of the defense; thus, an accused’s right to discovery is
not
limited to evidence that would be known to be admissible at trial; it
includes
materials that would assist the defense in formulating a defense
strategy).
United
States v. Madigan, 63 M.J. 118 (RCM 703(f)(1)
provides that each party is entitled to the production of evidence
which is relevant and necessary; RCM 703(f)(2) provides that
notwithstanding subsection (f)(1), a party is not entitled to the
production of evidence which is destroyed, lost, or otherwise not
subject to compulsory process; however, if such evidence is of such
central importance to an issue that it is essential to a fair trial,
and if there is no adequate substitute for such evidence, the military
judge shall grant a continuance or other relief in order to attempt to
produce the evidence or shall abate the proceedings, unless the
unavailability of the evidence is the fault of or could have been
prevented by the requesting party).
(the applicable regulations
concerning the retention of drug testing samples confers a right on
servicemembers to discover evidence; however, the regulations do not
confer on servicemembers the right to any particular remedy for a
deviation from those regulations, and there is considerable discretion
for courts to fashion a remedy to address any deviation from the
regulatory testing procedures).
(in the context of the
destruction of evidence under a regulatory schedule that is not under
challenge, the Government is not responsible for ensuring the
availability of the evidence after the authorized destruction date in
the absence of a timely request for access or retention; without such a
request, the responsibility for the unavailability of the evidence
after the authorized destruction date rests with the party that failed
to make the request that could have prevented the destruction; such
circumstances eliminate the need for analysis under RCM 703(f)(2) of
whether the evidence in question is of such central importance to an
issue that it is essential to a fair trial and whether there is no
adequate substitute for such evidence).
(the premature destruction of
a drug testing sample of the accused’s
blood by a testing facility seven months after a positive drug test did
not require suppression of the drug test evidence on the ground that it
improperly denied the accused the opportunity to retest the evidence,
where the sample would have been destroyed after two years pursuant to
the facility’s regulation, but there was no record of the defense
requesting access to or retesting of the sample during the entire
two-year period; thus, the premature destruction, which occurred after
the defense was notified of the drug test results and disciplinary
proceedings, did not impede defense access under the regulation).
United States v. Gonzalez, 62 M.J. 303 (RCM 701 (a)(2)(B)
requires the government, upon request, to turn over results or reports
of scientific tests or experiments that are material to the preparation
of the defense).
2005
United States v. Cano, 61 M.J. 74 (where an
appellant demonstrates that the Government failed to disclose
discoverable evidence in response to a specific request, the appellant
will be entitled to relief unless the Government can show that
nondisclosure was harmless beyond a reasonable doubt).
United
States v. Garlick, 61 M.J. 346 (under RCM
701(d), trial counsel are under a continuing duty to disclose
discoverable information to the defense).
2004
United
States v. Roberts, 59 MJ 323 (the right of an accused
to
obtain favorable evidence is established in Article 46, UCMJ; this
statute is
implemented in R.C.M. 701 which details the liberal discovery practice
in
courts-martial; R.C.M. 701 sets forth the rights and corresponding
obligations
of the parties to a court-martial; of particular importance are the
Government’s duties concerning disclosure of information requested by
the
defense which is material to the preparation of the defense).
(discovery
practice under Article 46 and R.C.M. 701 promotes full discovery,
eliminates
gamesmanship from the discovery process, and is quite liberal;
providing broad
discovery at an early stage reduces pretrial motions practice and
surprise and
delay at trial; the military rules pertaining to discovery focus on
equal
access to evidence to aid the preparation of the defense and enhance
the
orderly administration of military justice; to this end, the discovery
practice
is not focused solely upon evidence known to be admissible at trial;
the
parties to a court-martial should evaluate pretrial discovery and
disclosure
issues in light of this liberal mandate).
(when
a discovery matter is submitted to the military judge to review ex
parte, in
camera pursuant to R.C.M. 701, the military judge may order that the
discovery
or inspection be denied, restricted, or deferred, or make such other
order as
is appropriate).
(information
about a government witness’s denial of misconduct to which he
subsequently
confessed, whether or not it constituted proof of a false official
statement,
was probative of his truthfulness and could have been used in
preparation of
the defense to determine whether that witness could be impeached under
M.R.E. 608(b);
under M.R.E. 608(b), specific instances of the conduct of a witness, if
probative of truthfulness or untruthfulness, may in the discretion of
the
military judge be inquired into on cross-examination of the witness; in
the
context of defense-requested discovery of this information, the
question is not
whether the military judge would or would not have permitted the
cross-examination under M.R.E. 608(b), but whether the information was
material
to the defense’s preparation for trial).
(the
defense had
a right to information about a government witness’s denial of
misconduct to
which he subsequently confessed because it was relevant to that
witness’s
credibility and was therefore material to the preparation of the
defense for
purposes of the government’s obligation to disclose under R.C.M.
701(a)(2)(A);
the military judge erred as a matter of law when he denied the defense
motion
to compel discovery of this information).
(in
light of the evidence of the
entire
record, where the circumstantial evidence of appellant’s guilt was
overwhelming
and the government witness at issue in the discovery error was far from
the
linchpin of the government’s case, we are satisfied that the
nondisclosure was
harmless beyond a reasonable doubt).
United
States v. Jackson, 59 MJ 330 (discovery in the
military justice
system, which is broader than in federal civilian criminal proceedings,
is
designed to eliminate pretrial gamesmanship, reduce the amount of
pretrial
motions practice, and reduce the potential for surprise and delay at
trial).
(under
R.C.M.
701(a)(2)(B), the Government must allow the defense, upon request, to
inspect
any results or reports of scientific tests or experiments, or copies
thereof,
which are within 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 which are material to the preparation
of the
defense).
(in
the absence
of a defense request, R.C.M. 701(a)(6) requires the Government to
disclose
known evidence that reasonably tends to negate or reduce the accused’s
degree
of guilt or reduce the punishment that the accused may receive if found
guilty).
(the
discovery
rules encompass evidence that could be used at trial to impeach
witnesses or
other evidence presented by the Government).
(discovery
is
not limited to matters within the scope of trial counsel’s personal
knowledge;
the individual prosecutor has a duty to learn of any favorable evidence
known
to others acting on the Government’s behalf; trial counsel must
exercise due
diligence in discovering favorable evidence not only in his possession
but also
in the possession of other military authorities and make them available
for
inspection; 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
parties
bear a continuing duty to disclose responsive evidence or
material).
(the
undisclosed
scientific test report at issue in this case fell well within the
temporal span
of the defense discovery request; accordingly, the Government’s failure
to
provide the requested information violated appellant’s right to
discovery under
R.C.M. 701(a)(2)(B)).
United
States v. Santos, 59 MJ 317 (the military justice
system
provides for broader discovery than required by practice in federal
civilian
criminal trials; Article 46, UCMJ, mandates that the 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; and the President has implemented Article 46 in R.C.M. 701).
(R.C.M.
701(a)(2)(A) requires the Government, upon defense request, to allow
inspection
of any tangible objects, such as papers and documents, that are within
the
possession, custody, or control of military authorities, and which are
material
to the preparation of the defense; regardless of whether the defense
has made a
request, the Government is required to disclose known evidence that
reasonably
tends to negate or reduce the degree of guilt of the accused or reduce
the
punishment that the accused may receive if convicted; evidence that
could be
used at trial to impeach witnesses is subject to discovery under these
provisions).
United
States v. Rodriguez, 60 MJ 239 (military
judge did not abuse his discretion in
denying accused’s motion
to compel production of television network’s videotape outtakes taken
at scene
of traffic stop of accused, where accused did not carry his burden as
the
moving party to demonstrate that the outtakes he requested existed;
consequently, he did not show that they were relevant and necessary and
should
have been produced through compulsory process).
2003
United
States v. Mahoney, 58 MJ 346 (the individual
prosecutor
has a duty to learn of any favorable evidence known to others acting on
the
Government’s behalf in this case, including police).
(even if trial counsel did not know about a letter from a command
SJA
criticizing the key Government witness, it would have become known to
him by
the exercise of due diligence; the letter was written to the Government
witness's superior in the legal chain of technical supervision; it had
been
disseminated widely at the Drug Testing Laboratory and was the subject
of
formal training for DTL experts; it had been transmitted to various
offices in
the Air Force legal community; and the Government’s key witness was
himself
aware of the letter as he wrote a rebuttal to it upon receipt;
appropriate
Government inquiry of the witness should have led to discovery of the
letter).
(the prosecution must disclose to the defense evidence favorable to
an
accused where the evidence is material either to guilt or to
punishment;
favorable evidence under Brady v. Maryland includes impeachment
evidence
that, if disclosed and used effectively, may make the difference
between
conviction and acquittal; however, like other forms of exculpatory
evidence,
impeachment evidence is material to guilt or punishment only if there
is a
reasonable probability that, had the evidence been disclosed to the
defense,
the result of the proceeding would have been different; under the
reasonable
probability standard of materiality, the question is not whether the
defendant
would more likely than not have received a different verdict with the
evidence,
but whether in its absence he received a fair trial; therefore, a
reasonable
probability of a different result is shown when the Government’s
evidentiary
suppression
undermines confidence in the outcome of the trial).
(failing to disclose evidence favorable to an accused is a due
process
violation irrespective of the good faith or bad faith of the
prosecution).
(appellant’s defense was to attack the procedural regularity of the
information contained in the litigation packages -- the very
information that
the key Government witness substantiated through his testimony; thus,
any
evidence calling into question the witness's credibility would no doubt
have
been crucial to this defense; cross-examining the witness about a
command
letter criticizing him may have revealed a motive to testify positively
about
lab procedures and underlying scientific studies in future
courts-martial,
serving to damage the witness's credibility, and thereby enhance the
defense’s
case; in short, the letter’s substantial impeachment value undermines
confidence in the trial’s outcome; we therefore hold that the
Government’s
failure to provide to the defense before trial upon the initial
discovery
request a letter criticizing a key Government witness violated
appellant’s
constitutional right to due process of law under Brady v. Maryland,
373
U.S. 83 (1963)).
2002
United
States v. Ellis, 57 MJ 375 (an adverse inference
instruction is an appropriate curative measure for improper destruction
of
evidence).
United
States v. Pomarleau, 57 MJ 351 (under the
circumstances of
this case, the military judge erred by excluding defense evidence as a
discovery sanction for untimely defense disclosure without conducting a
factfinding 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
arising from untimely disclosure).
(RCM 701 imposes certain duties upon the defense, including the
affirmative
duty to inform the prosecution of the names and addresses of all
witnesses the
defense intends to call during its case-in-chief, and the duty to
notify the
prosecution of certain defenses the accused intends to assert at trial;
moreover, the rule provides that when the defense asks the prosecution
to
disclose certain specified types of documents, tangible objects, and
reports,
the defense incurs a reciprocal obligation to provide similar material
to the
prosecution).
(military courts possess the statutory authority to impose sanctions
for
noncompliance with discovery requirements, ranging from an order
permitting
discovery to an order prohibiting the offending party from offering
evidence
not disclosed).
(where the military judge excluded defense evidence as a sanction
for a
discovery violation, the Court reviewed the military judge’s ruling to
exclude
evidence for an abuse of discretion; findings of fact were reviewed for
clear
error, and conclusions of law are reviewed de novo).
(a military judge has the duty to regulate the discovery process to
ensure
the timely administration of justice, and to protect against surprise
and
attempts to present unreliable evidence to the members; this does not,
however,
permit blind adherence to prudential concerns at the expense of an
accused’s
right to be heard fully in his or her defense).
(in reviewing alleged discovery violations and considering sanctions
to
impose, the military judge must balance an accused’s right to
compulsory
process against the countervailing public interests that the rule is
designed
to protect and, in the final analysis, ensure that the penalty imposed
is not
disproportionate to the purposes the rule is designed to serve).
(proper consideration by the military judge of the significance of
the
contested evidence or testimony to the defense case, prejudice to the
Government, efficacy of less severe remedies, and the willfulness of
the
violation, before resorting to the most harsh sanction for a discovery
violation, will ensure that the interests of the accused, as well as
countervailing public interests, are given appropriate weight).
(given the significance of the exhibits and testimony excluded as a
sanction
for a discovery violation, the military judge was obligated to consider
whether
a less restrictive measure, such as a continuance, could have remedied
any
prejudice to the Government under these circumstances).
(if the reasons for a discovery sanction provided by the military
judge or
otherwise apparent from the record are not valid, and exclusion of the
evidence
is prejudicial under Article 59(a), the conviction must be set aside;
if there
is uncertainty as to the reasons for the defense violation or as to the
availability and impact of sanctions less restrictive than exclusion,
it may be
appropriate to remand the record for a DuBay hearing).
2000
United
States v. Avery, 52 MJ 496 (the government is
required to
produce evidence that is relevant, material, and favorable to the
accused,
including information which may expose a witness’ motivation falsifying
a rape
complaint; the exposure of a witness’ motivation for testifying is a
proper and
important function of the constitutionally protected right of
cross-examination).
(defense affirmatively waived any objection to government’s
nondisclosure of
report of victim’s prior rape allegation where: (1) defense made
no
motion for continuance; (2) defense made no motion to compel discovery;
(3)
defense counsel affirmatively stated at trial that the defense did not
intend
to go into the matter of the prior rape complaint; and, (4), after
receiving
the report after trial, defense did not raise the issue at a post-trial
Article
39(a) session).
(although government erred by failing to provide a law enforcement
report of
investigation pursuant to a defense request for discovery before trial,
there
was no plain error where: (1) the defense had a number of
opportunities
to remedy this situation by requesting a continuance to compel
discovery; (2)
the defense made a tactical decision not to present evidence of the
victim’s
prior rape allegation against another soldier; and, (3) there was no
evidence
or indication in the report that the victim’s allegations were false).
United
States v. Guthrie, 53 MJ 103 (discovery in
military
practice is open, broad, liberal, and generous, and the duty to
disclose
extends to impeachment as well as exculpatory evidence).
(failure to disclose mental health notes of victim was not
prejudicial where
the differences between the notes and the victim’s sentencing testimony
were
minimal, semantic in nature, and thus subject to different
interpretations, and
where the notes would not have changed defense counsel’s tactical
decision to
treat this victim gingerly during cross-examination, if indeed there
was any
cross-examination).
1999
United
States v. Abrams, 50 MJ 361 (RCM 701(g) provides for the
regulation of discovery by the military judge, placing at his disposal
various
means, such as in camera reviews, protective orders, or
partial
disclosure, to ensure the balance between an accused’s right to a fair
trial,
judicial efficiency and confidentiality considerations).
United
States v. Williams, 50 MJ 436 (through Article 46, RCM
701, and
case law, military discovery practice ensures the defense equal access
to
evidence, designed to be broader than discovery procedures in civilian
life,
but which provide, at a minimum, the rights available in federal
civilian
proceedings).
(as a general matter, evidence that could be used to impeach a
prosecution
witness is subject to discovery).
(parameters of the files that prosecution must review for
exculpatory
material include the prosecution’s own case file; beyond that the due
diligence
requirement extends to law enforcement files pertaining to the subject
matter
of the charges, investigative files in a related case maintained by an
agency
closely aligned with the prosecution, and other files held by a
specific entity
designated in a defense discovery request for a specific type of
information).
(where the prosecution has no duty to review military police files
pertaining to an unrelated case, the failure to review unit commander
files,
assuming them to be similar to police files, is not error where those
files
concern the same unrelated case).
(a burden rests upon trial counsel to review prosecution’s own files
and
those of investigative agencies acting on behalf of the prosecution in
the same
case without requiring great specificity in a defense discovery
request).
(as to files not related to the investigation of the case being
tried, a
defense discovery request must provide a reasonable degree of
specificity as to
the entities, the types of records, and the types of information that
are the
subject of the discovery request).
(to fulfill its discovery responsibilities, the prosecution is not
required
to review records that are not directly related to the investigation
and
prosecution of the case being tried, absent a specific defense request
identifying the entity, the type of records, and the type of
information).
(if information favorable to the defense is impermissibly withheld, the test for prejudicial error is whether there is a reasonable probability of a different result had that evidence been disclosed to the defense).
United
States v. Scott, 51 MJ 326 (disclosure requirements of
the
Manual for Courts-Martial protect a military defendant’s right against
self
incrimination, in part, by requiring disclosure to the defense of all
statements made by the accused which are relevant to the case and
within the
control of the armed forces; see MRE 304(d)(1)).
United
States v. Gray, 51 MJ 1 (military judge did not abuse
his
discretion in implicitly holding that disclosure of registered source’s
identity was not relevant or helpful to appellant’s defense, or not
essential
to a fair determination of the case, where defense did not pursue
theory of
contradiction allegedly supported by source’s potential testimony and
where
defense did not establish that source would corroborate alleged
testimony on
this theory or any of its critical points).
(there was no failure to disclose exculpatory information where none
of the
information purportedly possessed by a registered source came anywhere
near
being considered exculpatory and court would have to speculate as to
the
answers the registered source would provide to specific questions).
United States v. Lewis, 51 MJ 376 (disclosure of the defense of innocent ingestion under RCM 701(b)(2) requires disclosure of witnesses to innocent ingestion, other than the accused, only if an accused intends to call such witnesses and does not otherwise limit the right of the accused to testify in his/her own behalf).
United
States v. Barron, 52 MJ 1 (no further review of
appellant’s
claim that he was denied MRE 612 materials was warranted where:
(1) MRE
612 was not cited as a basis for appellant’s request for discovery; (2)
the
defense did not establish that the requested notes were used by the
expert
witness to refresh her memory for purposes of testifying at trial; and,
(3)
appellant has not asserted on appeal the basis for discovery which was
asserted
at trial).
(belated access to materials relied upon by prosecution expert in
fashioning
her direct testimony was not prejudicial where: (1) the defense
was
afforded a 30-day continuance because of the prosecution’s delayed
discovery
conduct; (2) the defense elected not to call the expert back to the
stand for
purposes of cross-examination; (3) the belated discovery was not
mentioned on
cross-examination of the expert when she re-took the stand as a
rebuttal
witness; (4) there was no defense motion to strike the expert’s
testimony in
its entirety because of the delayed discovery; (5) other evidence
similar to
that contained in the delayed materials was admitted; and, (6)
appellant has
not indicated how his defense would have been altered if he had
received the
materials earlier).
United
States v. Jones, 52 MJ 60 (requirement of MRE 301(c)(2)
to
disclose grants of immunity or leniency in exchange for testimony is
designed
to reinforce the government’s obligation to disclose exculpatory
evidence to
the defense; but even without the rule, exculpatory material which
could be
used for impeachment of government witnesses must be disclosed).
United
States v. Morris, 52 MJ 193 (discovery in military
practice
stems from Article 46, UCMJ, providing equal opportunity to obtain
witnesses
and other evidence to all parties in accordance with RCM 701 and 703).
(both impeachment and exculpatory evidence may be material to the
preparation of the defense; when not disclosed, impeachment evidence
will be
deemed material when, on the basis of the entire record, there is a
reasonable
probability that, had the evidence been disclosed to the defense, the
result of
the proceeding would have been different; in applying this test, the
benefit of
any reasonable doubt is given to the accused).
(whether military judge abused discretion in withholding medical and
family
service center records pertaining to victim of appellant’s offenses
need not be
decided because, under the facts of this case, disclosure of the
information
would not have created a reasonable doubt that did not otherwise
exist).