Articles Posted in Discovery

Under the “old” Article 32, the right to call and examine witnesses and to obtain production (discovery) of evidence was pretty robust.

All Services except the Air Force and Coast Guard routinely recorded the audio of the hearing.  That audio could then be transcribed into a verbatim transcript.  The benefit to the government was that in the event a witness became unavailable at trial, there existed a “deposition,” or at least something akin to a deposition which could be used in evidence at trial in the extreme case.

The Article 32 testimony as substitute for the actual appearance of the witness is guided by United States v. Norris, 16 U.S.C.M.A. 574, 37 C.M.R. 194 (to be admissible, must be verbatim); United States v. Burrow, 16 U.S.C.M.A. 94, 36 C.M.R. 250; Pointer v. Texas, 380 U.S. 400 (1965)(testimony might be received only if “taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” Id., at page 407.

This was a reason I always wondered why the Air Force and Coast Guard didn’t record the 32.  Although the cynical thought was that it prevented the defense from having a record to use for impeachment.

But here is the question for the current Article 32 pretrial hearing.  Can the hearing be properly used as a substitute for a deposition, and testimony used in evidence should a witness become unavailable for trial.  I think the answer should be NO.  Largely I think this is because of the intent to avoid discovery and an appropriate amount of cross-examination of witnesses who did attend.  There is now almost no discovery and the ability to cross-examine witnesses who do appear is more limited.  Thus there is a strong constitutional argument that trying to use a transcript of Article 32 testimony violates the Sixth Amendment Confrontation Clause.

While the likelihood of needing prior testimony may not be a frequent event, there may come another day where this collateral impact of changing the Article 32 may come back to haunt.  On balance the intent to adversely affect the ability of the defense to prepare for and defend against a charge has been accomplished-but at a cost to a potential prosecution.

I posted a while back about the Texas prosecutor arrested and being prosecuted for Brady violations.

Here is a link from Prof. Berman about

The investigative journalism website ProPublica has now published another installment in its notable series of pieces concerning the problems of prosecutorial misconduct.  The series is titled "Out of Order: When Prosecutors Cross the Line," and here are links to all the pieces from the beginning:

Many years ago we sought to improve our counsel performance at NLSO Norfolk with developing checklists, protocols, and a PQS system.  It seemed to work.

Now here is an article, Darryl K. Brown, Defense Counsel, Trial Judges, and Evidence Protocols, Brown, Darryl K., Defense Counsel, Trial Judges, and Evidence Protocols, Texas Tech Law Review, Vol. 45, No. 1, 2012; Virginia Public Law and Legal Theory Research Paper, 2012-70. Available at SSRN:  The author

argues that constitutional criminal adjudication provisions are fruitfully viewed not primarily as defendant rights but as procedural components that, when employed, maximize the odds that adversarial adjudication will succeed in its various goals, notably accurate judgments. On this view, the state has an interest in how those procedural mechanisms, especially regarding fact investigation and evidence gathering, are invoked or implemented. Deficient attorney performance, on this view, can be taken as a problem of the state’s adversarial adjudication process, for which public officials – notably judges, whose judgments depend on that process – should assume greater responsibility. The essay briefly sketches how judicial responsibility for the integrity of criminal judgments is minimized in various Sixth Amendment doctrines and aspects of adversarial practice. Then, instead of looking to Sixth Amendment doctrine to enforce minimal standards for attorney performance, the essay suggests that judges could improve routine adversarial process through modest steps to more closely supervise attorneys’ performance without infringing their professional discretion or adversarial role. One such step involves use of protocols, or checklists, through which judges would have attorneys confirm that they have performed some of their tasks essential to adversarial adjudication, such as fact investigation, before the court would rely on their performance to reach a judgment, whether through plea bargaining or trial.

Huuum, why not a pretrial conference on discovery and physical evidence.

The new Mil. R. Evid. may not apply to any offense committed prior to it’s effective date?  Is there an argument that application to an offense prior to the effective date violates the ex-post facto clause.  See Calder v. Bull, 100 U.S. 1 (1798).

Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Here is Prof. Colin Miller TG’s blog on the retroactive application of FRE 413-414.

Well, I use Wikipedia for research.  But, I use it “in some limited situations . . . for getting a sense of a term’s common usage."  Fire Insurance Exchange v. Oltman & Blackner, Case No. 201004262-CA, 2012 UT App 230 (Utah App. 2012)(discussing the uses and reliability of Wikipedia as a source of information).

See e.g., United States v. Jones, ARMY 20090401 (A. Ct. Crim. App. December 14, 2011),   Appellant was accused of effectively “Equating MOS trainees to permanent party – grandmothers to toads”  The court cites to Wikipedia for the proposition that the expression “WIKIPEDIA, (a Serbian expression akin to the familiar "apples to oranges" idiom in English) (last visited Dec. 1, 2011); in United States v. Magalhaes, NMCCA 200602480 (N-M Ct. Crim. App. February 21, 2008), the court cites to Wikipedia for the definition of the Pythagorean Theorem; in United States v. Ober, ACCA again resorts to Wikipedia for discussion of Kazza one of the early “programs” used to exchange many things over the internet, but for our purposes CP (which was also done in State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define "peer-to-peer file sharing").). 

But the Fire Insurance Exchange court cites to these several cases and there is an interesting discussion of Wikipedia.

Citing Wikipedia is as controversial as it is common.2 Some courts approve it, others condemn it. Compare United States v. Lawson, 677 F.3d 629, 650 (4th Cir. 2012) (stating that the court is "troubled by Wikipedia’s lack of reliability"), Bing Shun Li v. Holder, 400 Fed. App’x 854, 857-58 (5th Cir. 2010) (expressing "disapproval of the [immigration judge]’s reliance on Wikipedia and [warning] against any improper reliance on it or similarly unreliable internet sources in the future"), Badasa v. Mukasey, 540 F.3d 909, 910-11 (8th Cir. 2008) (noting Wikipedia’s acknowledgment that, "at any given moment," an entry "could be in the middle of a large edit or it could have been recently vandalized" (citation and internal quotation marks omitted)), and In re Marriage of Lamoure, 132 Cal. Rptr. 3d 1, 15 (Cal. Ct. App. 2011) ("We do not consider Wikipedia a sufficiently reliable source" for defining the term "noncustodial."), with Prude v. Clarke, 675 F.3d 732, 734 (7th Cir. 2012) (citing Wikipedia entry, in the context of an Eighth Amendment challenge, for the proposition that an anal fissure "is no fun at all"), United States v. Brown, 669 F.3d 10, 18 & n.12 (1st Cir. 2012) (citing Wikipedia for its definition of "sovereign citizen movement," one of a criminal defendant’s "atypical legal beliefs"), Murdock v. Astrue, 458 Fed. App’x 702, 705 n.3 (10th Cir. 2012) (citing Wikipedia for "some examples of block lengths from cities in this country"), and State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define "peer-to-peer file sharing").

I have for some time been challenging the limitation on the defense opportunity to get depositions.

The usual response is that a deposition isn’t for “good cause” because, according to the Discussion under R.C.M. 704, the witness “will be available at trial.”  I argue that R.C.M. 704 and the discussion are not procedure authorized by the President consistent with his Article 36, UCMJ, powers, but are substantive.  If it is substance, then it is beyond the Article 36 power.

Here is an interesting article on the federal rules which may help with my argument, we’ll see.

The Criminal Rules Enabling Act, Max Minzner,  University of New Mexico School of Law
July 10, 2012
46 University of Richmond Law Review 1047 (2012)

The Rules Enabling Act authorizes the Supreme Court to prescribe “general rules of practice and procedure” as long as those rules do not “abridge, enlarge or modify” any substantive right. The Supreme Court has frequently considered the effect of these restrictions on the Federal Rules of Civil Procedure. In order to avoid Enabling Act concerns, the Court has imposed limiting constructions on a number of the Civil Rules. A significant academic literature has grown up analyzing and criticizing the Court’s approach in these cases, frequently arguing for more expansive interpretations of the REA that would place more significant constraints on the Civil Rules. The impact of these statutory restrictions on the Rules of Criminal Procedure, though, has been virtually unstudied. Neither the Supreme Court nor academics have focused on the Criminal Rules when interpreting the REA.
This article argues that this approach is a mistake. Even under the most constrained view of the Rules Enabling Act, several Criminal Rules are potentially invalid because they are insufficiently procedural. After outlining the current doctrine on the Enabling Act and the Civil Rules, I provide a framework for applying the Act to the Criminal Rules and examine the constraints of the REA with respect to four Rules of Criminal Procedure that face validity challenges. In addition to identifying these Enabling Act issues, this article proposes potential interpretations of these Rules that can reduce their substantive effect by either reading the Rules narrowly or grounding the doctrines in federal common law, rather the Enabling Act.

I posted the other day about discovery, the appellate courts are seeing a number of cases about discovery issues.  ACCA hears oral argument in the Behenna case which presents the question of trial counsel’s failure to comply with Brady/Bagley/Giglio/Article 46 in the context of a motion for mistrial and a motion for new trial.  As I have noted before, the biggest discovery issues are impeachment evidence and evidence that is favorable to the accused.  Trial counsel don’t seem to have much problem disclosing all the bad stuff against the client, it is the good stuff favorable to the client that becomes the issue.

In the Behenna case the defense was semi fortunate.

[Tip? if a prosecution witness is suddenly no longer a witness, call them and ask why.]

But how many times does something similar to that of Behenna’s counsel happen in cases.  A witness or expert tells the prosecution something they don’t want to hear or tells the prosecution something helpful to the defense?  How many times does the prosecution transmit that information to the defense?  That’s what the Behenna case is about big-picture-wise.  The military judge could have granted a mistrial, but that remedy is very highly disfavored because it is such a drastic remedy; the military judge (or the convening authority) could have granted a new trial which seems a less drastic remedy.  See United States v. Webb, 66 M.J. 89 (C.A.A.F. 2008).  In Webb the prosecution failed to disclose that the urinalysis observer had a prior Article 15 punishment and therefore had lied on his screening to be a urinalysis observer – goes to integrity and truthfulness.  AFCCA and CAAF agreed that the military judge had authority to hold a post-trial hearing and to order a new trial for this discovery violation.

The disclosure of Brady material is a self-executing duty which exists without the need for a request by the accused. See United States v. Agurs, 427 U.S. 97, 107 (1976); United States v. Webb.

The rule of Brady v. Maryland, 373 U.S. 83 , arguably applies in three quite different situations. Each involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.

In the first situation, typified by Mooney v. Holohan, 294 U.S. 103 , the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury. . . . a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.

The second situation, illustrated by the Brady case itself, is characterized by a pretrial request for specific evidence. In that case defense counsel had requested the extrajudicial statements made by Brady’s accomplice, one Boblit. This Court held that the suppression of one of Boblit’s statements deprived Brady of due process, noting specifically that the statement had been requested and that it was “material.”

Agurs addressed the “third” area of discovery where there is no specific request for evidence.  United States v. Williams,  50 M.J. 436 (C.A.A.F. 1999), is a relevant military case.  In Williams the court identified three types of “files” to be searched.

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

(2) investigative files in a related case maintained by an entity “closely aligned with the” prosecution.

(3) other files, as designated in a defense discovery request, that involved a specified type of information within a specified entity.

Impeachment evidence is Brady/Giglio material.  In my earlier posting about discovery I mentioned United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003).  In Agurs, the Supreme Court took the Thompkins line:

Nor do we believe the constitutional obligation is measured by the moral culpability, or the willfulness, of the prosecutor. If evidence highly probative of innocence is in his file, he should be presumed to recognize its significance even if he has actually overlooked it. Cf. Giglio v. United States, 405 U.S. 150, 154 .  (emphasis added).

Note that further in Agurs the HBRD standard is applied to the error.  Agurs, 427 U.S. at 112.  Keep in mind that unlike federal or state prosecutors, the trial counsel is bound also by Article 46, UCMJ, which is a guarantee of equal access to witnesses.

Discovery is not limited to matters within the scope of trial counsel’s personal knowledge. “The individual prosecutor has a duty to learn of any favorable evidence known to others acting on the Government’s behalf.”  United States v. Mahoney, 58 M.J. 346, 348 (C.A.A.F. 2003)(quoting Strickler v. Greene, 527 U.S. 263, 281 (1999)).  “Trial counsel must exercise due diligence in discovering [favorable evidence] not only in his possession but also in the possession . . . of other ‘military authorities’ and make them available for inspection.”  United States v. Simmons, 38 M.J. 376, 381 (C.M.A. 1993). “The parameters of the review that must be undertaken outside the prosecutor’s own files will depend in any particular case on the relationship of the other governmental entity to the prosecution and the nature of the defense discovery request.”  Williams, 50 M.J. at 441.

United States v. Jackson, 59 M.J. 330, 334 (C.A.A.F. 2004).  In Williams the court admonished:

The Supreme Court emphasized in Kyles v. Whitley, supra, that the prosecutor “has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” 514 U.S. at 437 (emphasis added). As noted by the court below, “a prosecutor’s duty is not to win the case, but to ensure that justice is done.” 47 MJ at 625.

In the Behenna email the trial counsel says:

I received this email this evening.  I am not sure that I believe [D]r. MacDonald’s new opinion is exculpatory, but I wanted to send it to you in an abundance of caution.

There are indications that the “new opinion” was known and that was the reason Herb MacDonald was released as a government witness.  Dr. MacDonald says, “. . . I could not believe how close it was to the scenario I had described to you on Wednesday [before I heard the accused’s testimony].”  So, the indications are that he told the prosecutors that and got the, ‘thanks we don’t need you anymore,’ but not the, ‘before you go can you explain that same theory to the defense.’

“The prudent prosecutor will resolve doubtful questions in favor of disclosure.” . . . Such disclosure will serve to justify the trust in the prosecutor as “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

Kyles v. Whitley, 514 U.S. 419, 439 (1995) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976); Berger v. United States, 295 U.S. 78, 88 (1935)).

Remember that discovery practice is not focused solely upon evidence admissible at trial.  See United States v. Stone, 40 M.J. 420, 423 (C.M.A. 1994)(materiality standard normally “is not a heavy burden,” evidence is material as long as there is a strong indication that it will “play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.)(citations omitted); United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004).

Ultimately the result in Behenna is going to come down to a “so what?”  Best case for the defense is that the testimony of Dr. MacDonnell (“inventor” or close to and guru of blood spatter and an early reconstructionist) would have given strong credible corroboration to Behenna’s testimony, that the judge would have admitted it, and that it could have affected the outcome.


Brady v. Maryland, 373 U.S. 83, 87 (1963) (due process violated where prosecution withholds information requested by defense that is material to the issue of guilt or sentence); United States v. Bagley, 473 U.S. 667, 678 (1985)(evidence that could be used to impeach a government witness is subject to discovery.)

I have always taken the view that disclosure of bad information about witnesses is a self-executing duty on trial counsel.  I make this point because trial counsel often refuse to look into the background of it’s witnesses until the MJ orders that.

The military judge properly concluded the government “had an obligation to provide that CID report of investigation to the [d]efense, even absent a discovery request of any kind.” and thus violated its disclosure duties under the United States Constitution and the UCMJ.See UCMJ art. 46; Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004); R.C.M. 701.

I think ACCA agrees.

In a retrial of a premeditated murder case, we must decide whether the government’s failure to disclose impeachment information about the lead United States Army Criminal Investigation Command (CID) agent was harmless beyond a reasonable doubt.  We strongly condemn the government’s tactics in this case and remind practitioners that gamesmanship can play no part in the discovery process in the military justice system.

United States v. Dobson, ARMY 20000098, 2010 CCA LEXIS 86 (A. Ct. Crim. App. 2010).

In its 19 October 2006 written response to the defense request, the government stated, “Special Agent [JR] is currently being investigated for misconduct. . . . MAJ S was unsure whether the amount alleged to have been stolen was $50,000 or $500,000 and was further unsure what charges the government planned to prefer against SA JR. . . . Neither MAJ S nor any other government agent ever disclosed to the defense that SA JR was also under investigation for fraud. . . . On 13 March 2007, one week after appellant’s court-martial concluded, the government preferred numerous charges against SA JR, including dereliction of duty, larceny, fraud, and fraternization. On 30 May 2007, the defense filed a motion for a mistrial.

Interesting timing, and here’s an interesting comment on the government’s integrity.

the military judge found although government counsel “testified to the contrary,” the government made a “tactical decision not to prefer charges against [SA JR] prior to Dobson II . . . because of the potential impact preferral would have on [SA JR] as a witness in Dobson II.”

So trial counsel wasn’t being straight with the judge.  But then:

Despite the military judge’s finding that the government made a “tactical decision” as to when to prefer charges against SA JR, the military judge “cho[se] to believe and [found]” the government’s actions in this case were not intentionally designed to “conceal” the CID investigation from the Dobson defense team. Instead, the military judge found the government’s actions in “holding the CID investigation unless there was a specific request for it, . . . keeping the trial counsel in Dobson II in the dark as to [the existence of the CID investigation], and not preferring charges against [SA JR] until after Dobson II” were “borne from the [g]overnment’s significant misunderstanding of discovery rules and obligations.”  (Emphasis added.)

OK, now let’s keep in mind this was 2006.  So I don’t buy the lack of understanding of knowledge about discovery obligations.  The TJAGSA, NJS, etc., have been in business a while.  If this were in the 1950’s, or at least prior to Brady and Giglio . . .  Everyone gets discovery 101 at initial training, and there’s plenty of access to the rules and caselaw these days.  Judge Ham concludes:

While we defer to the military judge’s evaluation of the witnesses’ credibility and his finding that the government’s violation of discovery rules was not deliberate, but rather ignorant, neither is tolerable. Hiding the ball and “gamesmanship” have no place in our open system of discovery. See United States v. Adens, 56 M.J. 724, 731 (C.A.A.F. 2002) (broad discovery at an early stage reduces pretrial motions, surprise, and trial delays . . . leads to better informed judgments about the merits of the cases and encourages broad early decisions concerning withdrawal of the case, motions, pleas, and composition of the court-martial—in short its practice “is essential to the administration of justice . . .”); United States v. Dancy, 38 M.J. 1, 5 n.3 (C.M.A. 1993) (explaining the “unfortunate consequences of a trial counsel’s disregard for the discovery rights of an accused”); United States v. Lawrence, 19 M.J. 609, 614 (A.C.M.R. 1984).  Despite our holding in this case, we reiterate that all counsel must be competent. Ignorance or misunderstanding of basic, longstanding, and in this case, fundamental, constitutionally-based discovery and disclosure rules by counsel undermines the adversarial process and is inexcusable in the military justice system.  (Emphasis added.)

Unless the error is harmless beyond reasonable doubt.  Which fortunately for the government was apparent in this case.

Another point I make from time to time comes from United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003); and this arises in the context of trial counsel knowledge and experience as alluded to in Dobson.  When the prosecution or the MJ want to let the government get away with something because it was due to inexperience or lack of knowledge the question is not whether that inexperience or lack of knowledge is to be excused but whether there is an adverse impact on this accused’s trial.

Defense counsel moved for a mistrial under Rule for CourtsMartial 915.  The prosecution opposed the motion, stating that the assistant trial counsel’s actions were “due to inexperience and probably a lack of guidance” but were not deliberate.  Defense counsel argued that the issue on the motion for mistrial
was prejudice, rather than whether the actions were innocent or willful.

Note the chronology in this case.  The MJ excludes testimony or evidence, the prosecution brings it up, the defense objects and asks for a mistrial, and the prosecution does it again.

In Smith v. Phillips, 455 U.S. 209, 219 (1982), the Court opined that “the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.”  Accordingly, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness.  Id. at 220.