TRIAL STAGES: Pretrial: Discovery



2012 (September Term)

United States v. Coleman, 72 M.J. 184 (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 failure of the trial counsel to disclose evidence that is favorable to the defense on the issue of guilt or sentencing violates an accused’s constitutional right to due process; an appellate court reviews all such cases for harmless error - whether there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different). 

(a military accused has the right to obtain favorable evidence under Article 46, UCMJ, as implemented by RCM 701–703; Article 46 and its implementing rules provide greater statutory discovery rights to an accused than does his constitutional right to due process). 

(there are two categories of disclosure error: (1) cases in which the defense either did not make a discovery request or made only a general request for discovery; and (2) cases in which the defense made a specific request for the undisclosed information; for cases in the first category, an appellate court applies the harmless error standard; and for cases in the second category, an appellate court applies the heightened constitutional harmless beyond a reasonable doubt standard; failing to disclose requested material favorable to the defense is not harmless beyond a reasonable doubt if the undisclosed evidence might have affected the outcome of the trial).

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 accusedís 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 expertís 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 judgeís 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 ďit is what it is,Ē 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). 


2009 (September Term)

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 governmentís suppression of evidence is a statutory violation if it violates the Presidentís 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, appellantís 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 governmentís 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 accusedís 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). 


2006


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 accusedís 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 facilityís 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 Governmentís 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 witnessís 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 defenseís preparation for trial). 

(the defense had a right to information about a government witnessís denial of misconduct to which he subsequently confessed because it was relevant to that witnessís credibility and was therefore material to the preparation of the defense for purposes of the governmentís 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 appellantís guilt was overwhelming and the government witness at issue in the discovery error was far from the linchpin of the governmentís 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 accusedís 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 counselís personal knowledge; the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the Governmentís 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 prosecutorís 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 Governmentís failure to provide the requested information violated appellantís 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 accusedís motion to compel production of television networkís 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 Governmentís 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 Governmentís 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 Governmentís 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).

(appellantís 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 defenseís case; in short, the letterís substantial impeachment value undermines confidence in the trialís outcome; we therefore hold that the Governmentís failure to provide to the defense before trial upon the initial discovery request a letter criticizing a key Government witness violated appellantís 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 judgeís 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 accusedís 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 accusedís 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 witnessí motivation falsifying a rape complaint; the exposure of a witnessí motivation for testifying is a proper and important function of the constitutionally protected right of cross-examination).

(defense affirmatively waived any objection to governmentís nondisclosure of report of victimís 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 victimís prior rape allegation against another soldier; and, (3) there was no evidence or indication in the report that the victimís 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 victimís sentencing testimony were minimal, semantic in nature, and thus subject to different interpretations, and where the notes would not have changed defense counselís 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 accusedís 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 prosecutionís 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 prosecutionís 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 defendantís 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 sourceís identity was not relevant or helpful to appellantís defense, or not essential to a fair determination of the case, where defense did not pursue theory of contradiction allegedly supported by sourceís 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 appellantís claim that he was denied MRE 612 materials was warranted where:  (1) MRE 612 was not cited as a basis for appellantís 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 prosecutionís 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 expertís 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 governmentís 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 appellantís 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).


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