11_Discovery_and_Production

Last Updated: 5/10/22

CHAPTER 11

Discovery & Production

1.       References  

2.       Quick Refernce Section          

3.       Introduction

4.       Discovery Basics

5.       Military Discovery Rules

6.       "Equal Access" and Witness Interviews

7.    Preserving Evidence
8.    The Government's Discovery Responsibilities
9.     Timing of Disclosures
10.     Trial Counsel's Duty to Search 
11.     Defense Discovery Responsibilities 

12.       Regulation of Discovery

13.       Production

1. References

1. UCMJ art. 46
2. Rules for Courts-Martial 701, 703
3. Army Regulation 27-26, Rules of Professional Conduct for Lawyers
4. U.S. Army Trial Judiciary Rules of Practice before Army Courts-Martial

2. QUICK REFERENCE SECTION: Discovery Deadlines     

Timeline/Event	Deadline/Timing	Requirement/Action	Rule/Standard
Notify accused of charges	As soon as practicable after preferral	Notification	RCM 308(a)
Provide copy of charges to defense counsel	As soon as practicable after preferral	Copy of charges and matters	RCM 308(c)
Government mandatory disclosures	As soon as practicable after referral	Allied papers, convening orders, statements	RCM 701(a)(1)
Soldier Record Brief/Soldier Talent Profile	Within 24 hours of referral	To accused, defense counsel, military judge	Rule of Practice 3.1
Prior convictions of the accused	Before arraignment	Disclosure	RCM 701(a)(4)
Section III disclosures	Before arraignment	Accused statements, seized evidence, identifications, immunity grants	MRE 304(d), MRE 311(d)(1), MRE 321(d)(1), MRE 301(d)(2)
Section III disclosures	Not later than 2 duty days after trial date is set	Section III disclosures	Rule of Practice 4.1.6
Similar crimes evidence notice	5 days before entry of pleas	Notice	MRE 413, 414
Victim sexual behavior evidence motion	5 days before entry of pleas	Motion	MRE 412(c)
Government merits witness list	Before beginning of trial on merits	Witness list	RCM 701(a)(3)
Defense notice of defenses	Before beginning of trial on merits	Alibi, innocent ingestion, mental responsibility	RCM 701(b)(2)
Defense merits witness list and statements	Before beginning of trial on merits	Witness list and statements	RCM 701(b)(1)(A)
Government and defense witness lists	7 duty days before trial	Witness lists	Rule of Practice 4.1.7
Defense plea and forum notice	10 duty days before trial/Article 39(a)	Plea and forum notice	Rule of Practice 4.2.2
Defense production requests	10 duty days before trial/Article 39(a)	Production requests	Rule of Practice 4.2.4
Defense notice of certain defenses	10 duty days before trial	Notice	Rule of Practice 4.2.5
Continuing duty to disclose	Ongoing	Prompt notification of additional evidence	RCM 701(d)
Government must disclose exculpatory/mitigating evidence	Ongoing	Disclosure regardless of defense request	Brady/RCM 701(a)(6)

3. Introduction

1. 1. Scope of this Outline

This outline consolidates discovery requirements from the following authorities that govern information exchange between parties:

• UCMJ

• Military Rules of Evidence 

• Rules for Courts-Martial

• Rules of Practice

1. 2. Practitioner Oligations

IMPORTANT: This outline covers the most significant rules for discovery and production. Practitioners must always consult the applicable Rules for Courts-Martial (RCMs) or Military Rules of Evidence (MREs) to ensure compliance with all disclosure or notice requirements specific to their case.

1. 3. Key Considerations:

• Many rules of evidence mandate advance notice to opposing parties regarding certain types of evidence intended for trial

• Discovery requirements apply throughout all proceedings, not just the pretrial phase

• Practitioners must continuously evaluate when discovery or production requires supplementation during proceedings

1. 4. Continuing Duty to Disclose

CRITICAL REMINDER: All parties have a continuing duty to disclose and supplement discovery throughout the court-martial proceedings. RCM 701(d). This obligation extends beyond the pretrial phase.

4. Discovery basics

1. 1. Fundamental Principles

The rules for discovery establish how each party will help the other party to develop their case.  Fundamentally, these rules govern how the parties will exchange information to provide for a thorough, fair, and orderly process.

1. 2. Key Definitions

Discovery: The process of obtaining facts and information about a case from the opposing party to assist in trial preparation. Black’s Law Dictionary 322 (6th ed. 1991).

Disclosure: The act of revealing or making information known. Id. at 320. One party requests discovery; the other party provides disclosure of the requested material. The terms “disclosure” and “allowing to inspect” are used interchangeably.

1. 3. Scope of Discovery

Discovery includes:

• Disclosure of tangible evidence

• Notice of intangible matters (e.g., a party’s intent to offer an expert witness or an affirmative defense)

1. 4. Military Discovery Philosophy

Military discovery rules are liberal and promote efficiency and transparency. Early information exchange:

• Reduces pretrial motions practice

• Reduces surprise and gamesmanship

• Reduces trial delays (especially important when court is assembled)

• Leads to better-informed decisions about case merits

• Encourages early decisions on charge withdrawal, motions, pleas, and court composition

RCM 701, Discussion, II-72 (MCM 2024 ed.).

1. 5. Discovery vs. Production

DISCOVERY is the broad process of gathering information and facts for case preparation, including witness statements, documents, and tangible objects.

KEY POINT: Information learned during discovery may or may not ultimately be introduced as evidence at trial.

PRODUCTION occurs when one party (typically the defense) requests the other party (typically the government) ensure a witness or evidence appears at a scheduled hearing or trial. Defense counsel also use production rules to obtain documents before hearings.

The requesting party generally intends to call the witness or introduce the evidence at the proceeding.

DEFENSE OPTIONS if production is denied:

• Arrange for production at own expense (e.g., having family members attend sentencing without government reimbursement)

• File a motion with the court requesting relief – typically an order compelling the government to produce the witnesses or evidence previously denied

5. Military Discovery Rules

1. UCMJ ARTICLE 46(a)

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

2. RCM 701(e)

The military rule for discovery, RCM 701(e), provides that: “Each party shall have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence.  No party may unreasonably impede the access of another party to a witness or evidence.”

3. RCM 701 Mandatory Disclosures

RCM 701 includes several mandatory disclosures that must be made after service of charges pursuant to RCM 602. 

CRITICAL: Upon referral of charges, the trial counsel must be prepared to provide:

• All documents accompanying the charges

• Any written determination made by a special trial counsel pursuant to UCMJ art. 34

• Any written recommendation from a commander as to disposition

• Any papers sent with charges upon a rehearing or new trial (including all appellate documents and transcripts)

• The convening order and any amending orders

• Any sworn or signed statement relating to an offense charged in the case that is in the possession of trial counsel

4. Additional RCM 701 Disclosure Requirements

In addition to these threshold discovery requirements, RCM 701 provides guidance on evidence the trial counsel must disclose upon the request of the accused, including:

• Items “relevant to defense preparation”

• Items “obtained from” or “belong[ing] to” the accused RCM 701(a)(2)(A)(i)-(iv)

These guidelines ensure that the defense has evidence material to its case – such as bases for impeachment and affirmative defenses – as well as information necessary to make appropriate, timely motions to suppress (say, for the violation of an accused’s UCMJ art. 31 or Fourth Amendment rights).

5. Scientific Reports and Examinations

Further, RCM 701 states that “the Government shall permit the defense to inspect the results or reports of physical or mental examinations, and of any 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.” RCM 701(a)(2)(B). 

6. Special Evidence Categories

Note the Discussion following RCM 701, which highlights categories of evidence governed by more specific rules, such as:

• RCM 308 (identification of accuser)

• RCM 405 (reports of Article 32 hearings)

• MRE 506 (classified information)

7. RCM 703 Production Rules

The rule for production, RCM 703(a), further provides: “The prosecution and defense and the court-martial shall have equal opportunity to obtain witnesses and evidence . . . including the benefit of compulsory process.”  The remainder of RCM 703 provides the regulations implementing the production process in military courts-martial.

RCM 703(b) guarantees the production of “any witness whose testimony on a matter in issue on the merits or on an interlocutory question would be relevant and necessary” and, on sentencing, the production of a witness whose testimony is required under RCM 1001(f). RCM 703(b)(1)-(2). To request merits witnesses for production by the government, the defense must submit a written list of individuals they would like produced with minimum identifying information sufficient to locate those persons as well as a summary of their expected testimony sufficient to demonstrate relevance and necessity. RCM 703(c)(2)(A)-(B).

Similarly, “[e]ach party is entitled to the production of evidence which is relevant and necessary.” RCM 703(e)(1).

Disputes regarding the necessity or relevance of particular witnesses or evidence may be submitted to the military judge pursuant to a motion to compel. RCM 703(c)(2)(D).

A party cannot compel the production of witnesses determined to be “unavailable” within the meaning of MRE 804(a)R.C.M. 703(b)(3). Similarly, a party is not entitled to the production of evidence which is “destroyed, lost, or otherwise not subject to compulsory process.” R.C.M. 703(e)(2).

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

6. “Equal Access” and Witness Interviews

1. 1. Witness interviews

1. 1. 1.  General Rule

Defense counsel has the right to interview government witnesses without government interference, subject to limited exceptions.

1. 1. 2. Key Requirements:

• The government cannot require a government representative be present during defense counsel interviews of government witnesses

• Defense counsel has the right to conduct interviews free from government insistence on presence of government representative

• “Reasonable restrictions” may be imposed only to protect special interests of the State or witness

1. 1. 3. Permissible Exceptions:

• Third-party observer may be present when interviewing minor witnesses (e.g., juvenile officer for juvenile witness)

• Other circumstances where special protection is required for witness or State interest

1. 1. 4. Case Law Authority:

• United States v. Irwin, 30 M.J. 87, 94 (C.M.A. 1990): “[I]t is beyond the authority of the United States to interpose itself between the witness and the defense counsel and require, as a condition of granting such interviews, that a third party be present[.]”

• United States v. Killebrew, 9 M.J. 154, 159 (C.M.A. 1980): “[The] right to a pretrial interview … encompasses the right to an interview free from insistence by the Government upon the presence of its representative.”

• United States v. Enloe, 15 U.S.C.M.A 256, 261-261 (1965): “Reasonable restrictions” may be imposed where third party presence required “to protect a special interest of either the State or the witness.”  

1. 2. Victim interviews.

1. 1. 1. Protocol for Victim Interviews

• Defense counsel must request interviews of any victim the government plans to call to testify through that victim’s SVC or other victim counsel

• VWL or designee may act as intermediary between witness and counsel for arranging interviews during trial preparation (at witness request)

AR 27-10, para. 17-20a (8 Jan 2025)

1. 3. Victim Rights During Interviews

• Victims whom the government intends to call as witnesses can request that defense counsel interviews take place in the presence of:

  - Trial counsel, OR

  - Victim counsel, OR 

  - Victim advocate

7. Preserving Evidence

1. 1. Preservation of evidence.

The government has a duty to use good faith and due diligence to preserve and protect evidence under specific circumstances. United States v. Stellato, 74 M.J. 473, 483 (C.A.A.F. 2015).

The government must preserve:

• Evidence that has an apparent exculpatory value and that has no comparable substitute

• Evidence that is of such central importance to the defense that it is essential to a fair trial

• Statements of witnesses testifying at trial

1. 2. “Potentially Useful” Standard

Unlike evidence with apparent exculpatory value, the failure to preserve “potentially useful evidence” is only a violation of due process if there is a showing of bad faith by law enforcement.  United States v. Simmermacher, 74 M.J. 196, 199  (C.A.A.F. 2015) (citing Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988)); see Illinois v. Fisher, 540 U.S. 544, 547-49, 124 S. Ct. 1200, 157 L. Ed. 2d 1060 (2004)  (reinforcing the holding of Youngblood).

1. 3. Investigatory Limitations

 There is no due process requirement that the government use any particular investigatory tool, including quantitative testing, to secure exculpatory evidence.  Youngblood, 488 U.S. at 58-59.

1. 4. Specific military cases.

1. 1. 1. United States v. Thompson, 81 M.J. 391 (C.A.A.F. 2021). A child victim created a personal timeline with help of mother and child used timeline during interview with CID. CID did not collect timeline, and child later lost timeline. Government argued no Jencks violation for non-disclosure after child testified, because timeline was never in possession of government. No Jencks violation for government non-disclosure after child testified, because the timeline was never in possession of the government. There is no obligation by government to affirmatively create RCM 914 material and court declined to find constructive possession of RCM 914 material.

Thompson clarifies that the government has no duty to preserve evidence it never possessed, even when such evidence might be favorable to defense. The decision limits government preservation obligations to materials actually in government custody or control, rejecting theories of constructive possession for evidence created by third parties.

Practical Implications: Investigators should consider collecting potentially relevant materials created during witness interviews, including notes, drawings, or other documentation prepared by witnesses. However, failure to collect such materials does not create preservation obligations or discovery violations if the government never obtained custody of the evidence.

1. 1. 2. United States v. Coleman, 72 M.J. 184 (C.A.A.F. 2013). Government witness received immunity agreement in exchange for testimony. Defense was not informed of immunity agreement until after witness testified, despite government’s knowledge of Brady obligations regarding witness incentives. Government’s failure to disclose immunity agreement violated Brady requirements, as such agreements constitute material impeachment evidence that must be disclosed regardless of whether defense specifically requests the information.

Coleman reinforces that immunity agreements and other witness incentives must be preserved and disclosed as Brady material. The timing of disclosure is critical - post-testimony disclosure of immunity agreements may violate due process even if disclosed before case conclusion.

Practical Implications: All immunity agreements, cooperation agreements, and other witness incentives must be documented and preserved from inception. Trial counsel must maintain comprehensive files of all witness agreements and ensure timely Brady disclosure to avoid Coleman violations.

1. 1. 3. United States v. Watson, 31 M.J. 49 (C.M.A. 1990). Government witness had monetary interest in outcome of case that was not disclosed to defense counsel during discovery process. The financial incentive potentially affected witness’s credibility and motivation to provide truthful testimony. Evidence that witness had monetary interest in outcome of case could have been favorable to defense and should have been disclosed under Brady obligations. Financial incentives affecting witness testimony constitute impeachment evidence requiring disclosure.

Watson establishes that any financial interests, monetary incentives, or economic benefits affecting government witnesses constitute Brady material requiring preservation and disclosure. The decision extends Brady obligations beyond formal immunity agreements to include any financial motivations that could affect witness credibility.

Practical Implications: Trial counsel must investigate and preserve documentation of any financial relationships, monetary incentives, or economic interests affecting government witnesses. This includes compensation for cooperation, expense reimbursements, and any other financial benefits that might motivate witness testimony.

1. 1. 4. United States v. Garries, 22 M.J. 288 (C.M.A. 1986). Defense moved to suppress laboratory test results on blood stains because samples were destroyed during government testing. No constitutional due process violation found where defendant failed to demonstrate bad faith and had alternative methods (cross-examination) to challenge test results. “Under Article 46, the defense is entitled to equal access to all evidence, whether or not it is apparently exculpatory. Thus, the better practice is to inform the accused when testing may consume the only available samples and permit the defense an opportunity to have a representative present.”

1. 1. 5. United States v. Mobley, 31 M.J. 273 (C.M.A. 1990). Crime scene processors took evidence from a car, then released the car to owners before defense could examine it. No constitutional violation where defense could not show car contained favorable evidence, could cross-examine investigating officer, and made no showing of government bad faith.

1. 1. 6. United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015). Military judge dismissed charges with prejudice for discovery violations. Government appealed under Article 62. Military judge did not abuse discretion in dismissing with prejudice where:

• Trial counsel received timely discovery request

• Trial counsel knew of additional evidence in possession of other agencies

• Trial counsel had access to evidence and could have preserved it

Key Preservation Duties Reiterated:

• Evidence with apparent exculpatory value and no comparable substitute

• Evidence of central importance to defense counsel that is essential to fair trial

• Statements of witnesses testifying at trial

1. 5. Service regulations (such as those governing records retention) may provide further rights

Service regulations may “go farther” than the Constitution and UCMJ in protecting personal liberties, and Services must abide by them when their purpose is protecting personal rights.

1. 1. 1. United States v. Manuel, 43 M.J. 282 (C.A.A.F. 1995). Air Force destroyed accused’s positive urine sample one month after testing, violating Air Force regulation and DoD directive. Lower court’s suppression of positive results was not abuse of discretion where preservation standards conferred “substantial right” on accused. Regulations promulgated by Services may provide greater protection than Constitution/UCMJ where underlying purpose is protection of personal liberties or interests. Id. at 286 (citing United States v. McGraner, 13 M.J. 408, 414-15 (C.M.A. 1982); United States v. Dunks, 1 M.J. 254 (C.M.A. 1976)).

1. 1. 2. United States v. Madigan, 63 M.J. 118 (C.A.A.F. 2006). Air Force regulation required positive urine samples be kept for two years. Lab inadvertently destroyed accused’s sample early. Defense did not request access during retention period. Regulations concerning retention of drug testing samples conferred right on Servicemembers to discover evidence. Suppression appropriate remedy for lost or destroyed evidence.

Limitation: Defense cannot seek remedy under RCM 703 if they fail to request preservation before retention period ends, as they become the reason evidence is unavailable.

1. 1. 3. United States v. Simmermacher, 74 M.J. 196, 201 (C.A.A.F. 2015): CAAF partially overruled Manuel and Madigan to extent those cases suggested broader remedies under R.C.M. 703(f)(2) than continuance or abatement of proceedings.

1. 1. 4. Current Policy Requirements

Department of Defense policy requires retention of drug abuse testing records for:

• Negative results: One year

• Positive results: Three years

Authority: Dep’t of Defense, Instr. 1010.16, Technical Procedures for the Military Personnel Drug Abuse Testing Program, para. 4.14(f)-(g) (June 15, 2020) (c1 August 22, 2025)

1. 6. Ethical considerations in discovery. AR 27-26:

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

1. 1. 2. Counsel may not knowingly disobey an obligation to an opposing party. Rule 3.4(c).

1. 1. 3. Trial counsel must “make timely disclosure to the defense of all evidence or information known to the Trial Counsel that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the Trial Counsel.” Rule 3.8(d).

1. 1. 4. The ABA Standards for Criminal Justice, which apply to Army lawyers to the extent that they do not conflict with AR 27-26, contain additional ethical considerations. The ABA Standards do not address issues that may arise in military criminal proceedings, such as access to classified information or operational issues. There is no direct conflict between these standards; rather, the ABA Standards do not account for issues like the role of the commander in the military justice system. 

1. 7. Continuing duty to disclose:

“If, before or during the court-martial, a party discovers additional evidence or material previously requested or required to be produced, which is subject to discovery or inspection under this rule, that party shall promptly notify the other party or the military judge of the existence of the additional evidence or material.” RCM 701(d). The defense need not renew its discovery requests; the government’s obligation to disclose evidence continues. United States v. Stellato, 74 M.J. 473, 478 n. 5 (C.A.A.F. 2015); United States v. Garlick, 61 M.J. 346, 351 (C.A.A.F. 2005).

1. 8. Information not subject to disclosure:

1. 1. 1. Disclosure is not required if the requested information is protected under the MREs or if the information is attorney work product (notes, memoranda, or similar working papers prepared by counsel or counsel’s assistants or representatives). RCM 701(f). “Absent a disclosure requirement, documents specifically compiled and prepared with a reasonable anticipation of trial will be encompassed within the privilege if they encapsulate [an] attorney’s thought processes.” United States v. Romano, 46 M.J. 269, 275 (C.A.A.F. 1997) (emphasis added). See also United States v. Vanderwier, 25 M.J. 263 (C.M.A. 1987) (“Even though liberal, discovery in the military does not ‘justify unwarranted inquiries into the files and the mental impressions of an attorney.’”).

1. 1. 2. United States v. Turner, 28 M.J. 487, 489 (C.M.A. 1989). An expert consultant qualifies as a “lawyer’s representative,” i.e., “ a person employed by or assigned to assist a lawyer in providing professional legal services.” Such representatives are covered by attorney-client privilege, thus, in Turner, it was error for the trial counsel to contact the defense’s expert consultant without informing or obtaining clearance from the defense counsel. Parties may interview testifying expert witnesses for the other side, but they cannot interview the other side’s expert consultants unless and until such a consultant is offered as a witness.

8.  The Government’s Discovery Responsibilities

1. 1. Mandatory Disclosure Obligation

Regardless of whether the defense submits a discovery request, the trial counsel must disclose evidence that reasonably tends to:

• Negate guilt of the accused

• Reduce the degree of guilt

• Reduce punishment

• Adversely affect the credibility of any prosecution witness or evidence

RCM 701(a)(6).

1. 2. Constitutional due process and Brady

Constitutional due process requires that an accused have a “meaningful opportunity to present a complete defense,” California v. Trombetta, 467 U.S. 479, 485 (1984), which includes access to information “favorable to an accused … where the evidence is material either to guilt or punishment.” Brady v. Maryland, 373 U.S. 83, 87 (1963). In Brady, the government violated a defendant’s constitutional due process rights when it failed to disclose the codefendant’s confession to the murder with which they were both charged.

1. 3. Brady Two-Part Test

The Brady test requires that the evidence be:

• Favorable, AND  

•Material

Evidence is favorable if it is:

• Exculpatory substantive evidence, OR

• Impeachment evidence

See United States v. Bagley, 43 U.S. 667, 676 (1985).

Evidence is material when “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different”; the evidence must have made the “likelihood of a different result . . . great enough to ‘undermine[] confidence in the outcome of the trial.’” Smith v. Cain, 132 S. Ct. 627 (2012).

1. 4. Brady Violation Consequences

Once a Brady violation is established, courts need not test for harmlessness. Kyles v. Whitley, 514 U.S. 419 (1995). This standard recognizes that once the government fails the materiality prong, the defendant’s constitutional rights have been violated and reversal is required.

Limitation: “Favorable” evidence is not always “material,” such as when it relates to limited facts or theories at issue or where such evidence is disclosed and introduced at trial from another source. See United States v. Behenna, 71 M.J. 228, 238 (C.A.A.F. 2012) (finding no constitutional due process violation where testimony would have “at most” made the defendant’s version of events “more likely” and where the testimony “did not differ greatly from [other expert testimony]” offered at trial).

1. 5. Regulatory requirements

In addition to their constitutional and UCMJ obligations, trial counsel are obligated under AR 27-26, para. 3.8(d),todisclose all evidence that tends to: negate guilt; mitigate the offense; or mitigate the sentence.

1. 6. Additional Brady Foundational Cases

1. 1. 1. Giglio v. United States, 405 U.S. 150 (1972). The Supreme Court held that its ruling in Brady extended to impeachment evidence. The prosecution failed to disclose that its key witness received a grant of leniency in exchange for testimony and represented that no such promise had been made. After trial, the defense learned that the witness had received a promise of leniency and moved for a new trial. The Supreme Court reversed the conviction and ordered a new trial as “the Government’s case depended almost entirely on [the witness’s] testimony; without it there could have been no indictment and no evidence to carry the case to the jury.” Id. at 155.

1. 1. 2. Kyles v. Whitley, 514 U.S. 419 (1995). Government failed to disclose multiple pieces of exculpatory evidence, including witness statements, police reports, and other materials that collectively undermined prosecution case. Brady materiality must be assessed considering cumulative effect of all undisclosed evidence, not individual pieces in isolation. Four key principles established:

• Brady evidence includes evidence known to police even if not known to prosecutor

• Materiality assessment considers cumulative effect of suppressed evidence

• Once materiality is established, no harmless error analysis applies

• Government cannot cure Brady violation by claiming evidence would have been cumulative

1. 1. 3. United States v. Bagley, 473 U.S. 667 (1985) Defense specifically requested information about any deals with government witnesses. Government denied existence of such deals while key witnesses had compensation agreements. The Supreme Court held that impeachment evidence falls under Brady; expanded the scope of Brady to encompass evidence that could be used to attack government witnesses.

1. 1. 4. Strickler v. Greene, 527 U.S. 263 (1999). Government failed to disclose documents that would have impeached key witness in capital case. Documents were in prosecutor’s file but not provided to defense. The Court determined that petitioner could not demonstrate that there was a reasonable probability that his conviction or sentence would have been different had the materials been disclosed. Three-part Brady test confirmed: (1) Evidence must be favorable to defense; (2) Evidence must have been suppressed by government; (3) Suppression must be material (reasonable probability of different result)

• “Suppression” includes failing to disclose evidence in government’s possession

• Government cannot avoid Brady by claiming evidence was “available” through other sources

• Government must affirmatively search files and coordinate with all government actors

1. 1. 5. United States v. Ruiz, 536 U.S. 622 (2002). Government sought guilty plea without disclosing impeachment evidence. Defense argued Brady required disclosure before plea acceptance. Brady does not require disclosure of impeachment evidence before guilty plea, but does require disclosure of exculpatory evidence material to guilt.

1. 1. 6. United States v. Dancy, 38 M.J. 1 (C.M.A. 1993). Government disclosed accused’s statements on eve of trial after defense had requested them months earlier. Defense moved for sanctions. Military judge must fashion appropriate remedy for discovery violations based on individual case circumstances. Factors include:

• Extent of disadvantage from nondisclosure

• Reason for government’s failure

• Whether later events mitigated prejudice

• Alternative remedies available

Established framework for military judges to evaluate discovery violations and fashion appropriate relief. Court rejected “one-size-fits-all” approach to sanctions.

1. 7. Common Military Brady Categories:

• Witness immunity agreements or favorable treatment

• Disciplinary actions against government witnesses\n• Mental health treatment of witnesses

• Investigating agent misconduct or bias

• Command influence on witnesses\

Conflicting statements by witnesses

• Expert witness bias or conflicts

1. 8. Additional Discovery and Preservation Cases

1. 1. 1. United States v. Trimper, 28 M.J. 460 (C.M.A. 1989). The government disclosed a urinalysis report to the defense just before trial, despite the defense having made earlier discovery requests. The defense moved to preclude use of the evidence based on the late disclosure timing. The Court of Military Appeals held that while the late disclosure violated discovery rules, exclusion was not required where the military judge granted an adequate continuance allowing defense counsel sufficient time to prepare. The court established that timing of disclosure must be evaluated based on whether defense had meaningful opportunity to use the evidence effectively.

1. 1. 2. United States v. Ellis, 77 M.J. 671 (Army Ct. Crim. App. 2018). The government failed to disclose materials specifically requested by defense counsel. On appeal, the government argued the nondisclosure was harmless because the evidence would not have changed the outcome. The Army Court of Criminal Appeals established that when defense makes specific requests for discoverable material and government fails to disclose, courts apply a “might have affected the verdict” standard rather than the stricter Brady materiality test. This creates a presumption favoring the defense when specific discovery requests are not honored.

1. 1. 3. United States v. Shorts, 76 M.J. 523 (Army Ct. Crim. App. 2017), pet. for review denied, 2017 CAAF LEXIS 377 (C.A.A.F, May 1, 2017). Defense counsel requested an administrative investigation but provided trial counsel with incorrect unit information and wrong investigating officer name. When the requested investigation was not produced, defense claimed discovery violation. The court held that trial counsel does not violate RCM 701(a)(2) when defense requests are insufficiently specific or contain material inaccuracies that prevent reasonable search efforts. The government’s duty to search is limited by the accuracy and specificity of defense requests.

1. 1. 4. United States v. Trigueros, 69 M.J. 604 (Army Ct. Crim. App. 2010). The government possessed counseling statements that could impeach a complaining witness but failed to disclose them to defense counsel. The statements contained information inconsistent with the witness’s trial testimony. The court held that counseling statements constituting impeachment evidence must be disclosed under RCM 701(a)(2)(A) as documents relevant to defense preparation. The government cannot avoid disclosure by claiming such materials are not “intended” for use at trial when they clearly have impeachment value.

1. 1. 5. United States v. Webb, 66 M.J. 89 (C.A.A.F. 2008). Defense discovered post-trial that a government witness had undisclosed nonjudicial punishment that disqualified him from acting as a urinalysis observer. Defense moved for post-trial relief based on the discovery violation. The Court of Appeals for the Armed Forces held that military judges retain authority under Article 39(a) to convene post-trial sessions and grant appropriate relief for discovery violations, including ordering new trials. The court emphasized that discovery obligations continue beyond trial completion.

1. 1. 6. United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999). Defense challenged government’s discovery responses as inadequate, claiming trial counsel failed to conduct reasonable search for requested materials. The Court of Appeals for the Armed Forces established that the government must make “good faith efforts” to comply with defense discovery requests. Mere pro forma responses or perfunctory searches do not satisfy RCM 701 obligations.

1. 1. 7. United States v. Hart, 29 M.J. 407 (C.M.A. 1990). Defense made specific written requests for discoverable materials that government failed to disclose. Government argued on appeal that the undisclosed materials would not have affected the trial outcome. The Court of Military Appeals established that when defense makes specific requests for discoverable materials, courts presume the evidence was material unless government demonstrates harmless error beyond a reasonable doubt. This presumption recognizes defense counsel’s strategic assessment of evidence importance.

1. 1. Disclosing impeachment information

Pursuant to RCM 701(a)(6)(D), favorable impeachment information must be disclosed to the defense. Impeachment evidence may be relevant to any of the four methods of impeachment: bias, prejudice, motive to misrepresent, and contradiction. United States v. Banker, 15 M.J. 207, 210 (C.M.A. 1983).

For example, impeachment evidence may include: (1) the fact that a witness served as a paid police informant (Banks v. Dretke, 124 S. Ct. 1256 (2004)); (2) documents prepared by a witness or notes taken while interviewing a witness that contradict or undermine a witness’s testimony (Strickler v. Greene, 527 U.S. 263 (1999)); (3) documents created by law enforcement that contradict or undermine witness statements (Kyles v. Whitley, 514 U.S. 419 (1995)); (4) whether witnesses will be paid for their testimony (United States v. Bagley, 473 U.S. 667 (1985)); (5) any promise of immunity or leniency offered to a witness in exchange for testimony. See, e.g., Napue v. Illinois, 360 U.S. 264 (1959); United States v. Coleman, 72 M.J. 184 (C.A.A.F. 2013); (6) specific instances of conduct of a witness for the purpose of attacking the witness’s credibility or character for truthfulness. See, e.g., United States v. Watson, 31 M.J. 49 (C.M.A. 1990) (finding evidence that witness had monetary interest in outcome of case could have been favorable); United States v. Mahoney, 58 M.J. 346 (C.A.A.F. 2003) (holding that trial counsel’s failure to disclose a letter impeaching government’s expert witness was reversible error); (7) evidence in the form of opinion or reputation as to a witness’s character for truthfulness, see MRE 608; (8) prior inconsistent statements. See, e.g., Graves v. Cockrell, 351 F.3d 156 (5th Cir. 2003); United States v. Romano, 46 M.J. 269 (C.A.A.F. 1997) (trial counsel had a duty to disclose statements by witnesses at the Article 32 investigation of co-accuseds, where the prior statements were inconsistent with government’s main witness’ testimony at trial); and (9) information to suggest that a witness is biased. See, e.g., United States v. Bagley, 473 U.S. 667 (1985); Banks v. Dretke, 124 S. Ct. 1256 (2004) (finding State’s failure to disclose key state witness in capital sentencing proceeding was a paid government informant and played an important role in setting up Banks’ arrest was error); United States v. Claxton, 76 M.J. 356 (C.A.A.F. 2017) (finding government committed a Brady violation when it did not disclose to the defense that two witnesses against the accused were confidential informants working with USAF OSI).

1. 10. Practical Application of RCM 701(a)(6) and Brady at Trial

This section addresses the practical application of RCM 701(a)(6) and the Brady doctrine in military trials. The Brady rule is designed to ensure the defendant learns of exculpatory evidence that is known only to the trial counsel. However, if the defendant knows or should know the essential facts permitting him to take advantage of the exculpatory evidence (such as a witness’s identity), then the trial counsel does not have a duty to disclose the information. See United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988) (citing United States v. Gaggi, 811 F. 2d 47, 59 (2d Cir. 1987), cert. denied, 482 U.S. 929 (1987)).

1. 11. When Brady/RCM 701(a)(6) Issues Typically Arise

The practical application of RCM 701(a)(6) and Brady at trial is generally straightforward. These issues typically arise in two scenarios: when the trial counsel makes a late disclosure or when defense counsel discovers evidence on its own late in the process. At this point, both parties are aware of the evidence since they are actively litigating about it. The primary concern is ensuring defense counsel has adequate time to prepare for trial based on any newly-discovered evidence.

1. 50. Available Remedies Under RCM 701(g)

The military judge must fashion an appropriate remedy under RCM 701(g), most commonly by granting a continuance. Other available remedies under RCM 701(g) for failure to disclose RCM 701(a)(6) or Brady material include:

• Ordering further discovery

• Prohibiting the government from introducing certain evidence or calling a witness

• “Such other order 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.” United States v. Dancy, 38 M.J. 1, 6 (C.M.A. 1993). In Dancy, the government disclosed the accused’s statements on the eve of trial after defense had requested them months earlier. The court established a comprehensive framework for military judges to evaluate discovery violations, requiring consideration of: (1) the extent of disadvantage that resulted from the failure to disclose; (2) the reason for the failure to disclose; (3) the extent to which later events mitigated the disadvantage caused by the failure to disclose; and (4) any other relevant factors. The Dancy framework remains the primary standard for evaluating discovery remedies in military practice and was applied by the Court of Appeals for the Armed Forces in United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015). In extreme cases – where the discovery errors alleged cannot be rendered harmless by granting the defense additional time to prepare or fashioning a less drastic remedy under the Dancy factors – the judge may consider dismissal with prejudice. See Stellato, supra,  74 M.J. at 488 (concluding that “dismissal with prejudice may be an appropriate remedy for a discovery violation” where an error cannot be “rendered harmless[.]”).

1. 1000. See also:

United States v. Vargas, 83 M.J. 150 (C.A.A.F. 2022): Military judge has no obligation to choose “least drastic” remedy; under circumstances, military judge may choose whatever remedy is “just,” but must articulate rationale.

United States v. Warda, 84 M.J. 83 (C.A.A.F. 2022). Military judge failed to abate when trial counsel could not produce requested evidence due to complaining witness’s refusal to consent to disclosure.

1. 14. Key Factors for Abatement:

• Complaining witness was sole government witness (credibility central to case)

• Witness participation in immigration system provided potential motive to fabricate

• Evidence potentially exculpatory under defense theory

• Military judge made no findings of fact or conclusions of law

Practical Implication: Defense entitled to continuance or abatement where unavailability of evidence cannot be remedied by “substantial leeway on cross-examination.” 

• • Timing Sufficiency Standard

Whether disclosure is sufficiently complete or timely to satisfy Brady can only be evaluated in terms of “the sufficiency, under the circumstances, of the defense’s opportunity to use the evidence when disclosure is made.” United States v. Behenna,  71 M.J. 228, 246 (C.A.A.F. 2012) (citing Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) (“The opportunity for use under Brady is the opportunity for a responsible lawyer to use the information with some degree of calculation and forethought.”)).

1. 16. Trial v. Appellate Standards of Review

RCM 701(a)(6)(D) obligates the trial counsel to disclose evidence that “reasonably tends” to negate the guilt of the accused, while the Brady test focuses on the materiality of the evidence at issue for purposes of determining whether the accused has been afforded due process. This reflects the difference in applying rules of disclosure during discovery versus the standard applied by appellate courts post-conviction. At the trial level, military judges must decide disclosure issues based on the potential relevance of evidence and should use RCM 701(a)(6). Appellate courts will determine whether an alleged nondisclosure actually affected the trial outcome and apply the “materiality” test. Note that much of the case law related to the term “material” may not translate well to litigation at trial because it focuses on applying a post-trial prejudice analysis rather than evaluating pre-trial disclosures.

9. Timing of Disclosures

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

2. Disclosures due after preferral of charges: As soon as practicable after notifying the accused of preferred charges, trial counsel must provide the defense copies of the charges and any matters that accompanied the charges when preferred. R.C.M. 308(c); see also Rules of Practice Before Army Courts Martial (2023) 3.1 (“In addition to the RCM 308 requirement for commanders to immediately inform the accused of preferred charges, trial counsel must deliver a copy of preferred charges to the appropriate Trial Defense Service (TDS) field office at the earliest possible date so that military defense counsel can be appointed and begin case preparation.”)

3. Report of preliminary hearing (promptly after completion). RCM 405(m)(4).

4. RCM 701:

Allied Papers (as soon as practicable after service of charges under RCM 602) - RCM 701(a)(1):

• Any papers that accompanied the charges when referred

• Any written determination made by special trial counsel pursuant to Article 34

• Any written recommendation from a commander as to disposition

• Any papers sent with charges upon a rehearing or new trial

• The convening orders and any amending orders

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

5. Additional requirements from the Rules of Practice:

Soldier Record Brief or Soldier Talent Profile and referred charges must be provided within 24 hours to the accused, the defense counsel, and the military judge. Rule of Practice 3.1. It is the trial counsel’s responsibility under this rule to ensure that the Soldier Record Brief or Soldier Talent Profile contains correct and complete information as to the following: (1) the accused’s date of birth; (2) the accused’s MOS or Branch Code; the accused’s marital status; (3) the accused’s GT score; (4) the accused’s Basic Active Service Date; (5) the accused’s gender/REDCAT; and (6) the accused’s complete civilian education.

6. Prior convictions of the accused (before arraignment).

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

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

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

1. Statements of the Accused (Prior to Arraignment)

Disclosure Requirement: The prosecution must disclose all statements of the accused, oral or written, that are:

• Relevant to the case

• Known to the trial counsel

• Within the control of the Armed Forces

• Evidence derived from such statements that the prosecution intends to offer against the accused at trial

Authority: MRE 304(d)

Late Disclosure: Counsel must provide timely notice of an intent to offer a statement that was not disclosed prior to arraignment; military judge retains discretion as to whether to admit such a statement. MRE 304(f)(2).

Relevance Standard: The disclosure requirement applies only to “relevant” statements. The relevance of some pretrial statements made by the accused may not be foreseen until the defense has presented its case. Under those circumstances, the Government cannot be penalized for earlier nondisclosure. However, if there is a reasonable prospect that the statement might be offered in evidence during the trial, then disclosure is required.

United States v. Dancy, 38 M.J. 1, 4 (citing United States v. Callara, 21 M.J. 259, 263 (C.M.A. 1986)).

10. Scope of “All Statements”

The term “all statements” encompasses the following:

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

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

11. Sources of Statements of the Accused

• Sworn statements

• Oral statements made during law enforcement or command interviews

• Oral statements made to friends, co-workers, victims

• Statements on counseling forms

• Emails, texts, social media posts

• Other documented communications

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

50. Evidence seized from the accused or property owned by the accused (prior to arraignment):

The prosecution shall disclose all evidence seized from the accused or property owned by the accused, or evidence derived therefrom, that it intends to offer into evidence against the accused at trial. MRE 311(d)(1).

Trial counsel must provide timely notice of an intent to offer this evidence that was not disclosed prior to arraignment. MRE 311(d)(2)(B).

1000. Identifications (prior to arraignment):

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

Rule of Practice 4.1.6 requires that Section III disclosures be made not later than two duty days after the trial date is set if arraignment is the day of trial.

14. Similar sex assault or molestation crimes (5 days prior to entry of pleas):

If the government intends to offer evidence of similar crimes (sexual assault or child molestation), the trial counsel must notify the defense of its intent and disclose the evidence. MRE 413 and 414.

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

While there is no specific rule on point, case law suggests that trial counsel should also provide notice of testing that may consume only available samples of evidence. United States v. Garries, 22 M.J. 288 (C.M.A. 1986) (“best practice” to inform the accused when testing may consume the only available samples and permit the defense an opportunity to have a representative present).

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

The trial counsel shall notify the defense of the names and contact information of the witnesses the trial counsel intends to call: (i)In the prosecution case-in-chief; and (ii) to rebut a defense of alibi, innocent ingestion, or lack of mental responsibility, when the trial counsel has received timely notice of such a defense.

Notice must be provided no later than seven duty days prior to trial. Rule of Practice 4.1.7.

17. Disclosures and notices made upon defense request

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

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

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

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

Unlike RCM 701(a)(6) and Brady, this matter does not have to be favorable – just relevant to defense preparation. Unfavorable matter can be disclosable under RCM 701(a)(2)(A). See United States v. Adens, 56 M.J. 724 (Army Ct. Crim. App. 2002) (finding prejudicial error where the trial counsel violated RCM 701(a)(6) by withholding disclosure of available evidence collection kits because they planned to use them in rebuttal, stating, “[s]uch a tactic clearly violates R.C.M. 701(a)(2)(A), which prohibits any intended use of, not just offering into evidence of, undisclosed tangible objects during the government’s case-in-chief.”)

Note that, per H.V.Z. v. United States, 85 M.J. 8 (C.A.A.F. 2024) military medical facilities will likely be treated as “military authorities” under RCM 701(a). (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)

r. Other potential categories of RCM 701(a)(2)(A) information include:

Information that might affect the accused’s decision on how to plead. United States v. Adens, 56 M.J. 724 (Army Ct. Crim. App. 2002) (the availability of tangible evidence); United States v. Trigueros, 69 M.J. 604 (Army Ct. Crim. App. 2010) (counseling statements that could be used to impeach a complaining witness).

May inform lines of investigation, defenses, or trial strategies. United States v.Eshalomi, 23 M.J. 12 (C.M.A. 1986) (setting aside findings and sentence where government failure to disclosure prior statements of the complaining witness that undermined trial testimony and made appellant’s testimony less “incredible” and “might have persuaded the convening authority not to go forward with trial.”); United States v. Webb, 66 M.J. 89 (C.A.A.F. 2008) (military judge did not abuse her discretion by ordering a new trial in a case where the defense discovered an undisclosed instance of nonjudicial punishment that would have disqualified a government witness from acting as a urinalysis observer).

Information defense could use to persuade the convening authority not to refer the case. United States v. Eshalomi, 23 M.J. 12 (C.M.A. 1986) (evidence requested by the defense and withheld by the trial counsel that undermined the credibility of the victim).

Inadmissible information that is nonetheless relevant to defense preparation. United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011) (“ Indeed "[a]n 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.")

10. Trial Counsel’s Duty to Search

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

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

1. 3. United States v. Stellato, 47 M.J. 473 (2015): “[A] trial counsel cannot avoid R.C.M. 701(a)(2)(A) through ‘the simple expedient of leaving relevant evidence to repose in the hands of another agency while utilizing his access to it in preparing his case for trial.’”

KEY HOLDINGS:

• Government need not physically possess evidence for it to be within military authorities’ control

• Trial counsel with knowledge of and access to potentially disclosable material must review it

• Cannot avoid disclosure obligations by leaving evidence with other agencies

1. 4. United States v. Shorts, 76 M.J. 523 (Army Ct. Crim. App. 2017):

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

1. 5. Pursuant to Defense Request

1. 1. 1. Reports (after service of charges and upon defense request). RCM 701(a)(2)(B).
      2. Results or reports of physical of mental examinations, and of scientific tests or experiments (1) in the possession, custody, or control of military authorities, the existence of which is known or by the exercise of due diligence may become known to the trial counsel, AND (2) either relevant to defense preparation OR intended for use by the trial counsel as evidence in the case-in-chief OR the government intends to use the material in rebuttal.

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

1. 7. Sentencing information (upon request). RCM 701(a)(5).

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

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

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

Rule of Practice 4.1.7 requires notice  of witnesses to be called no later than seven duty days prior to trial (or any 39(a) hearing).

1. 8. Notice of uncharged misconduct. MRE 404(b).

The government must provide reasonable pretrial notice of the general nature of evidence of other crimes, wrongs, or acts which it intends to introduce at trial for some nonpropensity purpose. Notice of such evidence must be given with “reasonable notice … so that the accused has a fair opportunity to meet it[.]” M.R.E. 404(b)(3)(A). The notice must specify the permitted purpose for which the evidence will be used and the reasoning supporting such purpose. M.R.E. 404(b)(3)(B). The “reasonable notice” requirement may be waived during trial if the military judge excuses it for good cause. M.R.E. 404(b)(3)(C).

1. 1. RCM 914 – Witness Statements After Testimony (the Jencks Act)

A witness, not the accused, testifies.

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

1. Purpose and Authority: RCM 914 is a counterpart to the Jencks Act, 18 U.S.C. § 3500. Congress enacted the Jencks Act to “’further the fair and just administration of criminal justice’ by providing for disclosure of statements for impeaching government witnesses.” United States v. Muwwakil, 74 M.J. 187, 191 (C.A.A.F. 2015) (citing Goldberg v. United States, 425 U.S. 94, 107 (1976)).

2. Overlap with Other Discovery Rules: As Jencks seeks to preserve the ability of the accused to impeach the government’s witnesses, much of what the government would have to disclose to the defense under RCM 914 will also fall under other discovery rules like RCM 701(a)(1), (2), or (6), and Brady.

3. Remedy for Non-Disclosure

In the event that the government does not provide all prior statements of witnesses to the accused and the defense counsel makes a motion under RCM 914, the “military judge shall order that the testimony of the witness be disregarded by the trier of fact and that the trial proceed, or, if it is the trial counsel who elects not to comply, shall declare a mistrial if required in the interest of justice.” RCM 914(e).

4. What counts as a statement?

Definitions of “Statement”

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

TYPE 2 - Recorded: “A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in a recording or a transcription thereof.” RCM 914(f)(2); United States v. Holmes, 25 M.J. 674 (A.F.C.M.R. 1987).

5. KEY CASE LAW:

• United States v. Clark, No.19-0411 Crim. App. No. 20170023 (C.A.A.F. 2020): CID agent’s questions during video-recorded interview constituted a statement; government’s inability to produce portions violated RCM 914

• United States v. Sigrah, 82 M.J. 463, 468 (C.A.A.F. 2022): Military judge abused discretion by failing to strike victim’s testimony when government failed to produce recorded statement, even where recording was lost prior to preferral

 

6. CID Agent investigator notes:

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

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

Administrative board hearings. United States v. Staley, 36 M.J. 896 (A.F.C.M.R. 1993), review denied, 38 M.J. 168 (C.M.A. 1993) (finding no error where a military judge found that statements made by witnesses before an administrative discharge board were within the general mandate of RCM 914 but declined to find a violation of RCM 914 because the statements were destroyed in good faith pursuant to ordinary administrative procedures).

7. Drafts and notes:

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

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

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

4. United States v. Thompson, 81 M.J. 391 (C.A.A.F. 2021): A child victim created a personal timeline with help of mother and child used timeline during interview with CID. CID did not collect timeline, and child later lost timeline. No Jencks violation for government non-disclosure after child testified, because the timeline was never in possession of the government. There is no obligation by government to affirmatively create RCM 914 material and court declined to find constructive possession of RCM 914 material.

1. 10. Privilege:

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

1. 11. Standards of Review for Nondisclosure on Appeal

1. 1. 1. Specific Defense Requests for Disclosure

United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004). Defense counsel made a specific written request for “any statements made by [government witness] regarding the incident” during pretrial discovery. The government failed to disclose witness statements that contradicted the witness’s trial testimony. The statements were discovered post-trial, and defense moved for a new trial based on the discovery violation. The Court of Appeals for the Armed Forces established that when the defense makes a specific request for discoverable material and the government fails to disclose, a presumption of prejudice arises that shifts the burden to the government to prove harmless error beyond a reasonable doubt. The court emphasized that this standard is more protective than the traditional Brady materiality analysis.

Roberts clarifies that when defense makes specific discovery requests, the harmless error analysis differs significantly from Brady violations. Under Roberts, if the nondisclosed evidence “might have” affected the verdict, the government cannot meet its burden to prove harmless error beyond a reasonable doubt. This creates a lower threshold for finding prejudice than Brady’s “reasonable probability” standard, recognizing that specific requests indicate defense counsel’s strategic assessment of evidence importance.

1. 1. 2. Where the defense made a specific defense request for disclosure: If the government failed to disclose information specifically requested by the defense, the appellate courts presume that the evidence was material unless the government demonstrates that the failure to disclose was “harmless beyond a reasonable doubt.”  United States v. Hart, 29 M.J. 407, 410 (C.M.A. 1990).

1. 1. 3. If the nondisclosure ‘might have’ affected the verdict, the government’s nondisclosure will not be harmless beyond a reasonable doubt. United States v. Ellis, 77 M.J. 671 (Army Ct. Crim. App. 2018); see also United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004).

1. 1. 4. Definition of a Specific Request: A specific request:

• Identifies the specific file, document, or evidence

• Reasonably identifies the location of the evidence or the custodian

• Provides a statement of the expected materiality of the evidence to the preparation of the defense case

United States v. Ellis, 77 M.J. 671 (Army Ct. Crim. App. 2018).

1. 1. 5. Brady Violations

United States v. Banks, 43 M.J. 391 (C.A.A.F. 1995). The government failed to disclose that a key prosecution witness was a paid government informant who received monetary compensation for information leading to appellant’s arrest and prosecution. Brady violation established where government suppressed material impeachment evidence regarding witness’s financial motive to provide incriminating testimony. The court emphasized that informant status and compensation arrangements must be disclosed regardless of whether defense specifically requests such information.

United States v. Harden, 37 M.J. 594 (A.F.C.M.R. 1993). Government failed to disclose prior inconsistent statements made by alleged victim during initial interviews, which contradicted key elements of trial testimony. Brady violation where suppressed statements would have significantly impeached prosecution’s primary witness in case where witness credibility was central to conviction. Implies duty to preserve and disclose all witness statements from initial reports through final interviews, including informal conversations with command personnel and victim advocates.

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

1. 1. 6. Other Disclosure Requirements

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

11. Defense Discovery Responsibilities

1. 1. Mandatory Notifications

1. 1. 1. Notice of plea and forum. Unless the judge sets a different deadline, defense counsel will notify trial counsel and the judge, in writing, at least ten duty days before an Article 39(a) session to resolve motions or the date of trial (whichever is earlier), of the forum and pleas. Rule of Practice 4.2.2.  If the plea or forum changes after notification, defense counsel must immediately inform the judge and trial counsel of the change.

1. 1. 2. Notice of certain defenses (before the beginning of trial on the merits). RCM 701(b)(2):

1. 2. Notice of Certain Defenses (RCM 701(b)(2))

The defense shall give notice before the beginning of trial on the merits of its intent to offer the defense of:

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

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

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

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

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

2. Rule of Practice 4.2.5 requires notice at least ten duty days before trial.

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

1. 1. 1. The defense shall notify the trial counsel of the names and contact information of all witnesses, other than the accused, whom the defense intends to call during the defense case-in-chief, and shall provide all sworn or signed statements known by the defense to have been made by such witnesses in connection with the case.  The defense witness list for trials must indicate whether the witness will be called during the merits or sentencing phase of trial, or both. Rule of Practice 4.2.6.

1. 1. 2. Rule of Practice 4.2.6 requires notice no later than seven duty days prior to trial.

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

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

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

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

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

C. Reciprocal Discovery Obligations

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

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

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

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

D. Privilege Protections

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

Defense discovery requests: see discussion of government discovery/disclosures due upon request supra.

12. Regulation of Discovery

1. 1. Generally

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

1. 2. Pretrial Orders

The military judge may issue pretrial orders that regulate when the parties will provide notices and make disclosures to the other party. (“The military judge may, consistent with this rule, specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just.” RCM 701(g)(1)).

Note that the Rules of Practice also contain guidance regarding the conduct of discovery, including specific procedures and timelines. (See Section IV. Pretrial Practice and Notice Requirements).

1. 3. Protective and modifying orders

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

1. 4. In Camera Review

1. 1. 1. WHEN APPLICABLE: Upon motion or if a rule requires, the military judge may review any materials in camera or permit a party to make a showing, in whole or in part, in writing to be inspected only by the judge.

1. 1. 2. RECORD REQUIREMENTS: In the case of in camera review, the military judge must:

• Attach any materials examined by the judge to the record of trial as an appellate exhibit

• Seal any materials examined in camera that were not disclosed to the accused

1. 1. 3. AUTHORITY: RCM 701(g)(2)

Failure of military judge to seal and attach military records of government's key witness, after denying defense request for their disclosure for impeachment purposes, made proper appellate review impossible. United States v. Abrams, 50 M.J. 361 (C.A.A.F. 1999) (failure to create a record for review in accordance with RCM 1103(b)(2) creates a rebuttable presumption of prejudice).

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

1. 5. Potential situations that may warrant in camera review:

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

1. 1. 2. Medical records, mental health records, therapist notes: United States v. Cano, 61 M.J. 74 (C.A.A.F. 2005); United States v. Abrams, 50 M.J. 361 (C.A.A.F. 1999); United States v. Briggs, 48 M.J. 143 (C.A.A.F. 1998) (military judge did not err when denying defense discovery request for a complaining witness’s medical records, however best practice suggests in camera review); United States v. Kelly, 52 M.J. 773 (Army Ct. Crim. App. 1999)(“Where a conflict arises between the defense search for information and the Government’s need to protect information, the appropriate procedure is in camera review by the military judge.” (citing United States v. Rivers, 49 M.J. 434, 437 (C.A.A.F. 1998); United States v. Trigueros, 69 M.J. 604 (Army Ct. Crim. App. 2010).

1. 1. 3. Personnel records. United States v. Kelly, 52 M.J. 773 (Army Ct. Crim. App. 1999).

1. 1. 4. Inspector General’s Report of Inquiry. United States v. Sanchez, 50 M.J. 506 (A.F. Ct. Crim. App. 1999).

1. 6. Standard for Relevance

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

1. 7. Remedies for nondisclosure.

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

1. 1. 1. Available Remedies Under RCM 701(g)(3)

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

Grant a continuance. RCM 701(g)(3)(B).

1. 1. 2. United States v. Trimper, 28 M.J. 460 (C.M.A. 1989): Defense counsel moved to preclude use of a urinalysis report that was disclosed by the government just before trial. The military judge denied the request for exclusion, but granted a continuance, which was an appropriate remedy.

1. 1. 3. United States v. Murphy, 33 M.J. 323 (C.M.A. 1991): Government did not disclose its sole witness (an eyewitness accomplice) that they learned of the night before trial, but used the witness on rebuttal. Exclusion of testimony was not necessary. Violation of disclosure was adequately remedied by military judge’s actions in granting accused a continuance for several hours to allow the defense to interview the witness, read her statement, interview the investigator that interviewed the witness, and conduct background checks of the witness.

1. 1. 4. Prohibit introduction of the evidence, calling a witness, or raising a defense not disclosed. RCM 701(g)(3)(C).

1. 1. 5.  Factors to Be Considered for Exclusion

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

• The extent of disadvantage that resulted from a failure to disclose

• The reason for the failure to disclose 

• The extent to which later events mitigated the disadvantage caused by the failure to disclose

• Any other relevant factors

1. 8. Special Standards for Excluding Defense Evidence

“The sanction of excluding the testimony of a defense witness should be used only upon finding that the defense counsel’s failure to comply with this rule was willful and motivated by a desire to obtain a tactical advantage or to conceal a plan to present fabricated testimony. Moreover, the sanction of excluding the testimony of a defense witness should only be used if alternative sanctions could not have minimized the prejudice to the Government.” R.C.M. 701(g)(3), discussion, II-75 (MCM (2024 ed)).

1. 1. 1. Before imposing the sanction, the military judge must weigh the right to compulsory process against the countervailing public interests, including:

• The integrity of the adversarial process;
• The interest in the fair and efficient administration of justice;
• The potential prejudice to the truth-determining function of the trial process.

1. 1. 2. The Sixth Amendment right to present witnesses is not absolute. Taylor v. Illinois, 484 U.S. 400 (1988): The sword of compulsory process cannot be used irresponsibly. Excluding testimony is allowable; however, alternative sanctions will be adequate and appropriate in most cases.

1. 1. 3. United States v. Nobles, 422 U.S. 225 (1975): Defense expert testimony excluded because expert refused to permit discovery of a “highly relevant” report. “The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth.”

1. 1. 4. Michigan v. Lucas, 500 U.S. 145 (1991): The Court held that the state court of appeals erred in holding that the exclusion of evidence for the violation of a notice requirement under a state rape-shield law always violates the Sixth Amendment. The preclusion may be appropriate where willful misconduct is designed to gain a tactical advantage over the prosecution.

1. 1. 5. United States v. Pomarleau, 57 M.J. 352 (C.A.A.F. 2002): The military judge erred by excluding defense evidence as a discovery sanction without conducting a fact-finding hearing or otherwise ascertaining the cause for untimely disclosure by the defense, and by not making findings of fact on the record as to whether less restrictive measures could have remedied any prejudice to the government. Specifically, in the absence of any findings of fact related to the cause of the defense’s delayed disclosures, the Court could not determine whether the defense acted in bad faith and whether the exclusion of their evidence was an appropriate remedy. Id. at 364.

1. 1. 6. United States v. Preuss, 34 M.J. 688 (N.M.C.M.R. 1991): Applying the RCM 703(g)(3) discussion factors, the court found that the military judge abused his discretion by excluding the defense’s alibi witness because the defense counsel failed to give notice of its intent to offer the alibi defense before the beginning of the trial.

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

1. 10. Mistrial. RCM 915.

1. 11. Order a deposition. RCM 702:

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

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

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

1. 50. Strike testimony and give curative instruction.

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

1. 1000. Dismissal with Prejudice.

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

1. 14.  Post-Trial Discovery Remedies:

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

Brady/RCM 701(a)(6) disclosure requirement lasts beyond trial.

If any member of the Judge Advocate Legal Service (JALS) learns of new, credible, and material evidence or information creating a reasonable likelihood that an accused did not commit an offence of which the accused has been convicted they must disclose that evidence or in- formation. AR 27-10, para. 5-68 (8 Jan 2025).

After adjournment but before entry of judgment, trial counsel or special trial counsel who learn of such evidence must disclose to defense counsel and make reasonable efforts to investigate. Any other member of JALS making such a discovery shall dis-close to the SJA. AR 27-10, para. 5-68b (8 Jan 2025).

After entry of judgment but before completion of appellate review, any member of JALS who learns of such evidence or information must promptly notify the Army Court of Criminal Appeals Clerk of Court. AR 27-10, para. 5-68c (8 Jan 2025). If the case is pending review pursuant to UCMJ, Artcile 66, the Clerk must promptly forward the notice to the appellate defense counsel of record, or, if none has been assigned, the Chief, DAD.

After completion of appellate review, any member of JALS who learns of such evidence or information must notify OTJAG. From there, the Criminal Law Division must promptly forward the notice to the last known address of the accused. AR 27-10, para. 5-68d (8 Jan 2025).

13. Production

1. 1. Generally.

RCM 703(a) provides that “[t]he prosecution and defense and the court-martial shall have equal opportunity to obtain witnesses and evidence . . . including the benefit of compulsory process.”

This rule is based on Article 46, UCMJ and implements the accused’s 6th Amendment right to compulsory process.
 

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

1. 3.  Production Standards

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

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

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

1. 4. Sentencing witnesses. RCM 703(b)(2):

Each party is entitled to the production of a witness whose testimony on sentencing is required under RCM 1001(f).

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

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

• The testimony is necessary for consideration of a matter of substantial significance to a determination of an appropriate sentence.
• The weight or credibility of the testimony is of substantial significance to the determination of an appropriate sentence.
• The other party refuses to enter into a stipulation of fact.

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

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

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

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

1. 7.  Production Process

STEP 1: The parties identify the witness or evidence that they want produced.

STEP 2: The trial counsel secures the presence of the witnesses or evidence required by the government. The defense  submits its production requests to the trial counsel.

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

STEP 3: The trial counsel secures the presence of defense witnesses and evidence that the government determines meet production standards. If the trial counsel contends that defense witnesses or evidence do not satisfy the production standards, the trial counsel denies production of those witnesses or evidence, and tells the defense.

STEP 4: The defense may file a motion to compel production with the military judge. The military judge rules on the motion to compel production.

STEP 5: If the military judge grants the defense motion to compel production in whole or in part, the trial counsel secures the presence of those witnesses and/or evidence. The trial counsel arranges for orders or subpoenas of witnesses, depending on the witnesses’ status, and arranges for requests or subpoenas for evidence, depending on who controls the evidence.

1. 8. Pre-referral production of evidence through investigative subpoenas

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

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

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

1. 1. Production process for prosecution witnesses and evidence:

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

1. 10. Production process for defense witnesses and evidence

1. 1. 1. Defense submits a production request to the trial counsel                                                        

1. 1. 2. Witness and evidence production lists must be submitted in reasonably sufficient time to give the government a chance to get the witnesses and evidence. RCM 703(c)(2)(C); RCM 703(f).

1. 1. 3. The military judge may set a date for production requests in the pretrial order, and can grant a continuance if the defense submits a request late in the proceedings.

1. 1. 4. Rule of Court 4.2.4 sets a deadline of 10 duty days prior to trial or an Article 39a session unless the military judge sets a different deadline.

1. 11. Witness requests. RCM 703(c)(2):

Defense counsel shall submit to trial counsel a written list of witnesses that defense seeks the government to produce.

1. Standard – Merits, Motions, Interlocutory Questions

Requests shall include:

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

• A synopsis of the expected testimony sufficient to show its relevance and necessity.

2. Standard - Sentencing

Requests shall include:

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

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

1. 50. Evidence. RCM 703(f):

1. 1. 1. Defense requests for evidence shall:

• List the items of evidence to be produced;
• Include a description of each item sufficient to show relevance and necessity; and
• Include a statement of where it can be obtained; and, if known, the name, address, and telephone number of the custodian of the evidence.

1. 1. 2. Trial counsel evaluates defense production requests and either arranges for the presence of defense-requested witnesses and evidence, or contends that production is not required. RCM 703(c)(2)(D); RCM 703(f).

1. 1. 3. Denials of witnesses/evidence whose production is requested by the defense must be made in writing and must detail the reasons for denial. Rule of Practice 2.2.3.

1. 1. 4. If trial counsel contends that the defense requests for witness/evidence production are not required by the rules, then the defense may file a motion to compel production with the military judge. RCM 703(c)(2)(D); RCM 703(f); RCM 906(b)(7).

1. 1. 5. If the military judge grants a motion to compel production, the trial counsel shall produce the witness or evidence, or the proceedings shall be abated. RCM 703(c)(2)(D); RCM 703(f).

1. 1. 6. The standard of review for the denial of a request for production is abuse of discretion. United States v. Powell, 49 M.J. 220 (C.A.A.F. 1998); United States v. Mosley, 42 M.J. 300 (C.A.A.F. 1995). If the military judge abused her discretion, then the test for prejudice is harmless beyond a reasonable doubt. United States v. Powell, 49 M.J. 220 (C.A.A.F. 1998).

1. 1000. Unavailable Witnesses and Evidence

1. 1. 1. A party is not entitled to the presence of a witness who is unavailable under MRE 804(a) or evidence that is destroyed, lost, or otherwise not subject to compulsory process.

1. 1. 2. However, if the testimony or the evidence is of such central importance to an issue that is essential to a fair trial, and there is no adequate substitute, the military judge shall:

• Grant a continuance or other relief in order to attempt to secure the witness or evidence; or

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

1. 1. 3. A party cannot seek a remedy under this rule if they are the reason that the evidence is unavailable. RCM 703(b)(3); RCM 703(e)(2)

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

United States v. Ellis, 57 M.J. 375 (C.A.A.F. 2002).

1. 1. 4. Cases.

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

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

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

1. 14. Procedures to facilitate production

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

1. 1. 2. Evidence under control of the government. RCM 703(g)(2): Trial counsel notifies the custodian of the evidence of the time, place, and date evidence is required and requests that the custodian send or deliver the evidence.

1. 1. 3. Civilian witnesses and evidence. RCM 703(g)(3): Trial counsel can issue a subpoena for witnesses not on active duty/evidence custodians not under the control of the government, who are within the United States for a court-martial occurring in the U.S. if it appears that a civilian witness will not appear, or a civilian custodian will not produce requested evidence, through noncompulsory means.

1. 1. 4. Subpoenas can be used for court-martial, military commission, court of inquiry, or deposition, but not for pretrial interviews or preliminary hearings. UCMJ art. 46(c).

1. 1. 5. Subpoenas can be issued by the summary court-martial, trial counsel, president of a court of inquiry, or an officer detailed to take a deposition. They are usually issued by the trial counsel. RCM 703(g)(3)(D).

1. 1. 6. Issuing authority should use DD Form 453. See the content requirements of RCM 703(g)(3)(B) and service instructions of RCM 703(g)(3)(E). Note that a subpoena may be served informally by certified first class mail, return receipt requested, and must be formally served by personal delivery. AR 27-10, para. 9-7 (8 Jan 2025).

1. 1. 7. Subpoenas are not required for civilian witnesses who will voluntarily appear, and are typically not required for civilian Department of Defense employees.

1. 1. 8. Relief from a subpoena. RCM 703(g)(3)(G): Subpoena recipients can request relief from a subpoena on the grounds that compliance would be unreasonable, oppressive, or prohibited by law, from the military judge or, if pri- or to referral, a military judge detailed under Article 30a. The military judge will review the request and order that the subpoena be modified or quashed, or order the person to comply with the subpoena.

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

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

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

United States v Harding 63 M J 65 (C A A F 2006): Defense counsel requested production of a rape victim’s medical records during discovery. Trial counsel subpoenaed the requested records; however the custodian, a private social worker who had counseled the victim, refused to produce the records. Defense counsel filed a motion asking the military judge to order production of the records, which he agreed to do after a hearing where he considered MRE 513 and decided an in camera review would be appropriate. When the social worker still declined to produce the records, military judge issued a warrant of attachment. The warrant of attachment authorized the United States Marshal Service to seize the records and deliver them to the judge.

The Marshal Service failed to seize the records, instead merely asking the social worker to produce the records, and gave up when she declined to do so. Faced with the government’s failure to enforce the warrant of attachment, and deciding that the case could not proceed without in camera consideration of the records, the military judge abated the proceedings with regard to the rape charge. Appellate courts upheld the military judge.

• • Enforcement of compulsory process

1. 1. 1. WARRANT OF ATTACHMENT AUTHORITY: If a subpoenaed person neglects or refuses to appear, or refuses to produce evidence, a military judge (or a military judge detailed under Article 30a or the GCMCA before referral) may issue a warrant of attachment to compel attendance or production. RCM 703(g)(3)(H).

1. 1. 2. PROBABLE CAUSE REQUIREMENTS: A warrant of attachment is issued only upon probable cause to believe that:

• The witness/custodian was duly served with the subpoena

• Fees and mileage were tendered

• The witness/evidence was material

• The witness/custodian refused or willfully neglected to appear

• No valid excuse exists

RCM 703(g)(3) (H)(ii).

1. 1. 3. EXECUTION LIMITATIONS: Only non-deadly force may be used to bring the witness/custodian before the court-martial. The witness/custodian should be released as soon as possible after testifying or providing the evidence. RCM 703(g)(3)(H)(iv).

1. 1. 4. EXECUTION AUTHORITY: Although a warrant of attachment can be executed by any person who is 18 years of age or over, it should be executed by a civilian officer of the United States where practicable. AR 27-10, para. 5-33b (8 Jan 2025).

1. 16. Refusal to appear or testify is a separate offense under Article 47.

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

1. 1. 2. PROSECUTION VENUE: Such persons shall be tried in U.S. District Court by a U.S. Attorney. UCMJ art. 47(b)-(c).