Articles Posted in Discovery

In the world of military justice it’s the small things that seem most encouraging at times.  So . . .  In my standard Article 32, UCMJ, production request (based on R.C.M. 405(f)(9)(10) primarily) or trial discovery demand one of the provisions is this:

3.  Declination to Produce or Disclose.

    a.  If any information responsive to this request is not produced because of a claim of privilege, identify each item that would fall within the request and/or information affected, the basis of the privilege, and the current location of each document or information (i.e. a Vaughn Index, see Vaughn v. Rosen, 157 U.S. App. D.C. 340; 484 F.2d 820 (DC Cir. 1973)).  Such material should be submitted, with notice to the defense, to the investigating officer or military judge for in camera review.  See e.g. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984).

ACCA has issued an opinion in United States v. Trigueros, 68 M.J. ___ (A. Ct. Crim. App. 2010).  [Post updated to address a CAAFLog point, to add some links, and try to fix some formatting.]

This case involves the common problem of discovery of a victims mental health records.  There are two troubling aspects to this case:  the trial counsel never made any effort to determine whether or not information responsive to a specific discovery request was available, and when the prosecution has access – as they frequently do – how can it not be a violation of  Article 46, UCMJ, for them to fail to turn over the information.

On 9 May 2007, trial counsel responded to the defense discovery request, stating in relevant part “[t]he Government is not aware of the existence of any such documentation regarding the records of the victims, Mrs. [JLC] and Mrs. [SCR].” In fact, trial counsel had not asked Mrs. SCR whether she had attended mental health counseling before responding to the defense discovery request.

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.

I came across this item reading some history on the current court-martial.  DNA has gained a prominent place in the prosecution and defense of criminal cases.  But this piece illustrates that the DNA may only be as good as the testing done and the people doing the testing.

The Army began its prosecution in 2006 after a cold case detective with the Cumberland County Sheriff’s Office ordered DNA tests on the rape kit of Eastburn and on a blood sample from Hennis. That testing, conducted by the N.C. State Bureau of Investigation, matched Hennis’ DNA to sperm found in the rape kit, according to court documents.

The military has done further testing, lawyers said Monday.

A case pending at the U.S. Supreme Court was recently settled out of court, and the case withdrawn from consideration.  It appears that there has been a settlement of $12M, for prosecutorial misconduct.

"This means prosecutors who step outside their traditional role and who act as investigators (in criminal cases) can still be subject to civil rights lawsuits just as police would be."

Prosecutors are normally immune from lawsuits involving work during trials. The 8th U.S. Circuit Court of Appeals decided in McGhee vs. Pottawattamie County in 2008 that plaintiffs could sue prosecutors under civil rights statutes if the alleged wrongdoing arose from investigatory work before the trial started.

Discovery obligations apply to court-martial motions practice, for example when there is to be a suppression hearing.

The government has a mandatory duty to disclose evidence in its possession that is favorable to the defense, "either because it was exculpatory or of impeachment value . . . ." . The government breaches the duty established by Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, including Giglio v. United States, 405 U.S. 150 (1972), when it withholds such evidence, either willfully or inadvertently, and the withheld evidence is found to be "material." Id. In the context of non-disclosed impeachment evidence, materiality is assessed in terms of whether the reliability of the witness in question may well be determinative of the outcome of the proceedings. See Pennsylvania v. Ritchie, 480 U.S. 39 (1987). That is, the evidence must be such that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Stated otherwise, "the relevant question is: ‘when viewed as a whole and in light of the substance of the prosecution’s case, did the government’s failure to provide . . . [the] Brady impeachment evidence to the defense . . . lead to an untrustworthy [result]. . . ." (some citations omitted).

United States v. Best, No._________, 2009 U.S. Dist. LEXIS 119802, at *19–20 (M.D. Pa. Dec. 23, 2009).

Why am I not surprised by Issue III.  See one of my earlier blogs — The Prosecutor’s Gamble.  I’ve blogged several times about trial counsel “suppression” of evidence or information favorable to the defense, despite frequent public relations statements and appellate cases lauding the more open discovery to which a court-martial accused is entitled to under the UCMJ. 

The military justice system provides for broader discovery than required by practice in federal civilian criminal trials. See United States v. Williams, 50 M.J. 436, 439-40 (C.A.A.F. 1999).

Statutory and implemental regulatory discovery rights of a military accused are more generous than the constitutional discovery rights of his civilian counterpart. See, e.g., United States v. Simmons, 38 M.J. 376 (C.M.A. 1993); United States v. Green, 37 M.J. 88 (C.M.A. 1993); United States v. Eshalomi, 23 M.J. 12 (C.M.A. 1986).

United States v. Mott, once again, explores the prosecution obligation to disclose favorable evidence to the defense at court-martial.  In this case, the prosecutions own expert agreed with the defense theory as to the accused’s mental status.  None of this was disclosed to the defense.

In the instant case, this first step of analysis need not detain us. The Government concedes that their expert, Dr. Hagan, verbally informed the trial counsel that he agreed with the defense expert that the appellant suffered from a severe mental disease and that said disease caused the appellant not to understand the wrongfulness of his actions at the time of the charged misconduct. We have no doubt that knowledge of the existence of a Government medical expert whose professional opinion wholly supported the opinion of the defense expert is a fact both favorable to the appellant and material to an assessment of his guilt and/or punishment. We find, therefore, that the trial counsel’s failure to disclose the expert medical opinion of their expert, Dr. Hagan, was error.

“[N]eed not detain,” because it is patently obvious the information is discoverable.  This case is from RLSO Norfolk.  Doesn’t surprise me in the least.

Need to find a current address for a witness in a case?
Boxbreaker, Slang for a form used by the United States Post Office. Its called Request for Boxholder Information for Service of Legal Process. Take the form to the nearest Post Office to your targets last know address and the U.S Postmaster will provide you with a forwarding address. The forwarding address can also be obtained using a blank envelope and mailing a letter to the last know address with the following words capitalized AND underlined.


This usually comes back in a week and again almost always works so long as the forwarding address is on file with the USPS.


From time to time I try to get a judge to accept and instruct on an adverse inference.  Or at least argue it.  Generally adverse inferences come up when evidence is “lost” or there has been a refusal of discovery.  Basically the argument goes that if the evidence isn’t provided for a reason within the control of the adverse “party,” then it can be argued or presumed that the information would have been favorable to the accused.  Here is a nice little piece – from a civil case – that is of interest.

District Court concludes duty to preserve electronic and other evidence commenced on pre-complaint telephone call, warranting adverse-inference instruction sanction, in KCH Services, Inc. v. Vanaire, Inc., et al., _ F.Supp.2d _ (W.D. Ky July 22, 2009) (Civil Action No. 05-777-C).

It seems to me that CID/NCIS/OSI/CGIS have a duty to preserve evidence, along with gathering it.  To the extent you may be able to find problems with evidence gathering, handling, witness notes or statements, etc., there may be a way to fit the adverse inference into a botched investigation argument.  Just a thought.

/tip Federal Evidence blog.

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