TRIAL STAGES: Pretrial: Discovery

2023 (October Term)

H.V.Z. v. United States and Fewell, 85 M.J. 8 (RCM 701(a)(2)(A) allows the defense to inspect any books, papers, documents, data or copies of portions of these items, if the item is in the possession, custody, or control of military authorities, and meets certain other requirements; similarly, RCM 701(a)(2)(B) gives the defense access to the results or reports of physical or mental examinations which are within the possession, custody, or control of military authorities and meet certain other requirements).

(trial counsel cannot avoid RCM 701(a)(2)(A) by leaving evidence with a nonmilitary agency and continuing to use it at their own discretion during trial preparations; evidence might still be within the control or constructive custody of military authorities even if it is not strictly within their possession or actual custody; it matters not whether the item is within the possession, custody, or control of the prosecution team; the issue is whether it is in the possession, custody, or control of military authorities).

(in this case, the military judge did not commit clear and indisputable error when he determined that the victim's health and mental health records were in the possession, custody, or control of military authorities for the purposes of RCM 701(a)(2) allowing the defense to inspect any documents in the possession, custody, or control of military authorities; the medical treatment facility that held the records was located on a military base that served active duty military members, retirees, and their families, was commanded by a military officer, and its mission included military readiness; considering the deference afforded to the military judge in the procedural posture of this case, the plain meaning of military authorities can be construed to include this medical treatment facility).

(in this case, under MRE 513(e), the military judge was required to provide the victim with the opportunity to be heard on the production of her mental health records, and his conclusion that the victim lacked standing to oppose the production of her medical and mental health records amounted to clear and indisputable error).

2022 (October Term)

United States v. Warda, 84 M.J. 83 (at the time of appellant's court-martial, RCM 703(f) (now RCM 703(e)) provided that each party was entitled to the production of evidence that is relevant and necessary; however, notwithstanding this provision, a party is not entitled to the production of evidence which was destroyed, lost, or otherwise not subject to compulsory process).

(if relevant and necessary evidence is of such central importance to an issue that 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 moving party for the production of evidence that is relevant and necessary under RCM 703 must show that what is being requested actually exists).

(in this case, appellant established the existence of documentation of the complaining witness's immigration status in the US for the purposes of his request for production of such records under RCM 703(f) (now RCM 703(e)), despite the refusal by the US Customs and Immigration Service to admit or deny existence of such records where (1) the complaining witness had obtained a conditional permanent resident card and came to US to live with appellant after they married, (2) she continued to reside in US after her conditional permanent resident card expired and thus would have had further contacts with immigration officials to adjust her status, and (3) she did not object to the military judge and government seeing her file, but testified that she would not consent to disclosure after some people from immigration advised her against it).

(a party seeking relief under RCM 703(f) (now RCM 703(e)) must show that the unavailable evidence is essential to a fair trial).

(in this case, the military judge abused his discretion in denying appellant's motion to dismiss or abate the proceedings pursuant to RCM) 703(f) (now RCM 703(e)) on the ground that the government could not produce the records of the complaining witness's where (1) the complaining witness refused to consent to disclosure, (2) the complaining witness was the sole government witness and thus her credibility was matter of central importance to case, (3) her participation in immigration system could provide a significant motive for her to fabricate allegations against appellant if her continued presence in US following expiration of her conditional permanent resident card was based on claim that she was victim of sexual assault, and (4) the military judge made no findings of fact and drew no conclusions to undermine appellant's defense theory that the evidence was exculpatory).

(in determining whether there is an adequate substitute for unavailable evidence sought via a motion for production under RCM 703(f) (now RCM 703(e), courts have looked to whether there is a comparable substitute; whether an adequate substitute exists for lost or destroyed evidence depends upon the purpose of the evidence).

(in this case, the military judge's grant of substantial leeway in appellant's cross-examination of the complaining witness was not an adequate substitute for the records of the complaining witness's immigration file that the witness refused to consent to disclosure for purposes of appellant's motion to dismiss or abate proceedings where (1) the purpose of the request for the complaining witness's was to impeach her credibility and show motive to fabricate allegations by showing that she remained in the US following the expiration of conditional permanent resident card as a victim of sexual abuse, (2) she was the government's sole witness and thus her credibility was central issue in case, and (3) absent this evidence, appellant was unable to impeach her testimony that she came to US only to be with appellant after they married and that she did not know she could extend her stay if she alleged domestic abuse).

(if a continuance or other relief cannot produce the missing evidence sought under a motion for production, the remaining remedy for a violation of RCM 703 (f) (now 703(e)) is abatement of the proceedings).

United States v. Vargas, 83 M.J. 150 (although RCM 701(g)(3) does not expressly sanction dismissal with prejudice as a remedy for discovery violations, it does authorize military judges to impose a remedy that is just under the circumstances). 

(RCM 701(g)(3) provides that when a military judge finds that a party has failed to comply with their discovery obligations, the judge may take one or more of the following actions:  (1)  order the party to permit discovery; (2) grant a continuance; (3) prohibit the party from introducing evidence, calling a witness, or raising a defense not disclosed; and, (4) enter such other order as is just under the circumstances). 

(dismissal with prejudice is an appropriate remedy for a discovery violation under RCM 701(g)(3)(D) when, after considering whether lesser alternative remedies are available, the military judge determines that such a remedy is just under the circumstances).

(the plain language of RCM 701(g)(3)(D) permits any remedy that is just under the circumstances; this language does not require a military judge to craft the least drastic remedy to cure the discovery violation; crafting the least drastic remedy demands a narrow focus on curing the prejudice to the aggrieved party, but RCM 701(g)(3)(D) authorizes a broader inquiry into the circumstances of the case and the discovery violation at issue; importing a least drastic remedy requirement into RCM 701(g)(3)(D) would be inconsistent with the broad language of the rule). 

(dismissal of charges with prejudice is a drastic remedy for a discovery violation, and a military judge must consider whether any alternatives are available before imposing it).  

(consistent with the language of the rule, the military judge is also authorized to reject alternative RCM 701(g)(3)(D) remedies if the military judge finds they would not be just under the circumstances; a remedy is only available under RCM 701(g)(3)(D) if it is just under the circumstances; a military judge must both consider whether other lesser alternative remedies are available and determine that dismissal with prejudice is just under the circumstances before imposing that remedy). 

(dismissal with prejudice is a particularly severe remedy for a discovery violation and should not be imposed lightly). 

(while there may be significant overlap in a remedy that cures the prejudice to the accused for a discovery violation and a remedy that is just under the circumstances, the two are not necessarily coextensive).

2019 (October Term)

United States v. Bess, 80 M.J. 1 (where an appellant’s oral discovery request seeks irrelevant information, a military judge does not abuse her discretion by denying it). 

(an accused is entitled to the production of relevant and necessary evidence). 

(in this case, the military judge did not abuse her discretion in denying appellant’s motion to produce a statistical racial breakdown of the convening authority’s command where the information sought by appellant was irrelevant because the information requested had little to do with the available pool of members and because the information requested would have done nothing to add to the legal force of appellant’s observation at trial that he was African-American and it appeared the court members were not; appellant’s request for a racial breakdown of the convening authority’s command suffered two shortcomings; first, the request covered only the convening authority’s command, which is only a subset of the total eligible pool of members, and second, a racial breakdown alone would not reveal enough detail to discern who would be eligible to serve on a panel).

(the mere racial composition of a court-martial, without more, does not make discovery into the detailing process relevant and necessary).

2016 (October Term)

United States v. Claxton, 76 M.J. 356 (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 duty to disclose evidence material either to guilt or to punishment is applicable even though there has been no request by the accused, and that the duty encompasses impeachment evidence as well as exculpatory evidence). 

(in military practice, where an appellant demonstrates that the government failed to disclose discoverable evidence in response to a specific request or as a result of prosecutorial misconduct, the appellant will be entitled to relief unless the government can show that nondisclosure was harmless beyond a reasonable doubt; 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). 

United States v. Stellato, 74 M.J. 473 (besides the discovery obligations under RCM 701, the government has disclosure obligations under MRE 301 to MRE 321; some military trial practitioners refer to these disclosure obligations as Section III disclosures, which require trial counsel to give the defense notice of (1) the grant of immunity or leniency to a prosecution witness, (2) the accused’s written or oral statements relevant to the case (known to the trial counsel and within the control of the armed forces), (3) all evidence seized from the accused that the prosecution intends to offer into evidence at trial, and (4) all evidence of a prior identification of the accused at a lineup or other identification process that it intends to offer at trial). 

(parties to a court-martial do not need to repeat discovery requests because there is a continuing duty to disclose). 

(Article 46, UCMJ, provides the trial counsel, defense counsel, and the court-martial with the equal opportunity to obtain witnesses and other evidence in accordance with the rules prescribed by the President; 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).    

(trial counsel’s obligation under Article 46, UCMJ, includes removing obstacles to defense access to information and providing such other assistance as may be needed to ensure that the defense has an equal opportunity to obtain evidence). 

(the RCMs further define a trial counsel’s obligations under Article 46, UCMJ, and three provisions are of particular relevance to this case; first, each party shall have equal opportunity to interview witnesses and inspect evidence; second, trial counsel shall, as soon as practicable, disclose to the defense the existence of exculpatory evidence known to the trial counsel; and third, the government must permit the defense to inspect any books, papers, documents, photographs, tangible objects, or copies of portions thereof, which are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense). 

(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). 

(the discovery rules in the RCMs ensure compliance with the equal-access-to-evidence mandate in Article 46; in doing so, the rules aid the preparation of the defense and enhance the orderly administration of military justice; and furthermore, the parties to a court-martial should evaluate pretrial discovery and disclosure issues in light of this liberal mandate). 

(the RCMs do not provide any explicit requirement for the government to preserve evidence upon the defense’s request; however, they do require that the defense have equal opportunity to inspect evidence; the UCMJ also requires that the defense have equal opportunity to obtain witnesses and other evidence; as such, the government has a duty to use good faith and due diligence to preserve and protect evidence and make it available to an accused). 

(the duty to preserve evidence includes: (1) evidence that has an apparent exculpatory value and that has no comparable substitute, (2) evidence that is of such central importance to the defense that it is essential to a fair trial, and (3) statements of witnesses testifying at trial). 

(no party may unreasonably impede the access of another party to a witness or evidence). 

(the government does not commit a discovery violation if diligent and good-faith efforts do not lead to a witness submitting to an interview; a potential witness at a criminal trial cannot normally be required to submit to a pretrial interview for either side; however, the government cannot impede access to a witness). 

(the government is required to permit the defense to inspect, upon request, tangible objects that are within the possession, custody, or control of military authorities; generally speaking, an object held by a state law enforcement agency is ordinarily not in the possession, custody, or control of military authorities; however, a trial counsel cannot avoid the requirement to permit the defense to inspect tangible objects 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; in fact, a number of scenarios have been identified in which evidence not in the physical possession of the prosecution team is still within its possession, custody, or control; these include instances when: (1) the prosecution has both knowledge of and access to the object, (2) the prosecution has the legal right to obtain the evidence, (3) the evidence resides in another agency but was part of a joint investigation, and (4) the prosecution inherits a case from a local sheriff’s office and the object remains in the possession of the local law enforcement). 

(under the RCMs, the government has a duty (1) to permit inspection of tangible objects within the possession, custody, or control of military authorities, and (2) to disclose, as soon as practicable, the existence of evidence known to the trial counsel that reasonably tends to be exculpatory). 

(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 for exculpatory evidence 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). 
 
(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). 

(military courts possess the authority to impose sanctions for noncompliance with discovery requirements; these sanctions include (1) ordering the party to permit discovery, (2) granting a continuance, (3) prohibiting a party from introducing evidence, calling a witness, or raising a defense not disclosed, (4) entering such other order as is just under the circumstances, and (5) fashioning a remedy as is just under the circumstances; where a remedy must be fashioned for a violation of a discovery mandate, the facts of each case must be individually evaluated). 

(dismissal with prejudice may be an appropriate remedy for noncompliance with discovery requirements; nonetheless, dismissal is a drastic remedy and courts must look to see whether alternative remedies are available; in fact, if an error can be rendered harmless, dismissal is not an appropriate remedy; however, dismissal of charges may be appropriate if a military judge determines that the effects of the government’s discovery violations have prejudiced the accused and no lesser sanction will remedy this prejudice). 

(dismissal with prejudice for a discovery violation does not require a finding that the trial counsel engaged in willful misconduct; however, bad faith certainly may be an important and central factor for a military judge to consider in determining whether it is appropriate to dismiss a case with prejudice). 

(in determining whether discovery violations have prejudiced an accused’s right to a fair trial, a military judge may examine (1) whether the delayed disclosure hampered or foreclosed a strategic option, (2) whether the belated disclosure hampered the ability to prepare a defense, (3) whether the delay substantially influenced the factfinder, and (4) whether the nondisclosure would have allowed the defense to rebut evidence more effectively; in essence, prejudice can arise from discovery violations when those violations interfere with an accused’s ability to mount a defense). 

(in this case, the military judge did not abuse his discretion in finding prejudice from the discovery violations where the violations resulted in the inability of the defense to call a key witness and the violations resulted in lost evidence, unaccounted for evidence, and evidence left in the hands of an interested party, thus compromising the ability of the accused to mount a defense; furthermore, the military judge, after considering all possible lesser, alternative remedies, did not abuse his discretion in concluding that no remedy short of dismissal with prejudice would adequately address the prejudice). 

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 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).