Discovery-innocent ingestion

R.C.M. 701(b)(2) sets out the requirement for defense disclosure if there will be an innocent ingestion defense.

Assuming the accused is the only witness who may testify to an innocent ingestion, must the defense disclose that under the rule.  My answer is no.  To force a disclosure prior to testimony violates the accused’s right to silence at trial and under Article 31, UCMJ.  The President has addressed this issue in R.C.M. 701(g)(3)(D), and IMHO C.A.A.F. has also put the question to rest.

Appellant argues before this Court that the military judge improperly restricted his right to present his defense at this court-martial. This improper restriction, he asserts, stems from the trial judge’s misreading of RCM 701 and his resulting rejections of appellant’s profferred defense of "innocent ingestion." He contends that the trial judge erroneously prevented him from testifying to his belief that his drink was spiked, and to the circumstances supporting that belief, unless he had corroborating witnesses who actually tampered with his drink or saw someone else do it. We hold that the trial judge’s reading of RCM 701 was incorrect.

Instead, we more reasonably construe this rule as requiring notice of witnesses to innocent ingestion, other than an accused, only if an accused intends to call such witnesses to establish this defense at trial. Finally, even if the language of RCM 701(b)(2) might be construed to require such independent and direct proof, other language of this rule expressly states that "this rule shall not limit the right of the accused to testify in the accused’s behalf."

United States v. Lewis, 51 M.J. 376, 380 (C.A.A.F. 1999).