Here’s how we start our “discovery” requests–as “Disclosure Requests.”

The defense requests disclosure of the following items in advance of any UCMJ art. 32, preliminary hearing. The request is a continuing one in accordance with UCMJ arts. 32((a)(2)(D) and46; Rules 701, 703, 405(a), (e), (1), (f)(7), (h)(3)(A), Rules for Courts-Martial, Manual for Courts-Martial, United States (2019),; Mil. R. Evid. 304(d)(1), 404(b), 705; United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999); United States v. Briggs, 48 M.J. 143, 144 (C.A.A.F. 1999); and Brady v. Maryland, 373 U.S. 83 (1963). See also, Uniform Rules of Practice before Air Force Courts-Martial, dated 1 October 2020; Rules 3.2 & 3.3; AFI 51‑201; AFGM2020-02, Administration of Military Justice, dated 5 October 2020, paragraph 5.12; AFI 51-110, Professional Responsibility Program, dated 11 December 2018, Attachment 2 (Air Force Rules of Professional Conduct); Rules 3.3, 3.4, 3.8 & 4.2 and Attachment 7 (Air Force Standards for Criminal Justice), Chapter 5. These items are relevant under UCMJ art. 32(a)(2)(D) and which calls upon the preliminary hearing officer to make a referral recommendation.

NOTE: In the event charges are referred to trial, this disclosure request immediately becomes the FIRST defense discovery request.

Interestingly, in Cone v. Bell, 556 U.S. 449 (2009) the Supreme Court court suggests that the duty to provide Brayd[-plus] disclosures may be broader under a prosecutors ethical obligations. The military prosecutor’s ethical rules are:

  • Rule 3.8(d), Air Force Instruction 51-110, Professional Responsibility Program.
  • Rule 3.8.d, Army Regulation 27-26, Rules of Professional Conduct.
  • U. S. Coast Guard, Legal Professional Responsibility Program, COMDTINST M5800.1.
  • Rule 3.8.a(4), Judge Advocate General Instruction 5803.1, Professional Conduct of Attorney’s, applicable to both Navy and Marine Corps judge advocates.

We think an early Request is especially important in speedy trial situations–the client is in pretrial confinement or has been placed on restriction. The point is to make the prosecution either respond (thus showing some forward movement) or do nothing, in which case you may have an argument for a lack of reasonable diligence if the discovery comes much later. Remember,

“[O]nce an appellant is placed in pretrial confinement the Government is required to exercise “reasonable diligence” in bringing the accused to trial.” United States v. Danylo, 73 M.J. 183, 186 (C.A.A.F. 2014) citing United States v. Kossman, 38 M.J. 258, 262 (C.M.A. 1993) (internal quotation marks omitted).

Keep in mind that “The prosecution is deemed to have knowledge of information that is readily available to it. Kyles, 514 U.S. at 437; Williams v. Whitley, 940 F.2d 132, 133 (5th Cir. 1991); see Smith, 50 F.3d at 831. See generally United States v. Combs, 267 F.3d 1167, 1172-75 (10th Cir. 2001). Knowledge by any member of the prosecutor’s office is, and must be, imputed to any individual prosecutor responding to this demand, and because of the unusual role of a convening authority and staff judge advocate in the prosecutorial process this would include the convening authority and the SJA.  Giglio v. United States, 405 U.S. 150, 154 (1972); Martinez v. Wainwright, 621 F.2d 184, 186-87 (5th Cir.  1980). Additionally, and along the same line, the knowledge of governmental agencies connected with the investigation at bar is also imputed to any prosecutor responding to this demand.  Gibbs v. Johnson, 154 F.3d 253, 256 (5th Cir. 1998); United States v. Avellino, 136 F.3d 249, 255 (2nd Cir. 1998); Fero v. Kirby, 39 F.3d 1462, 1472 n. 12 (10th Cir. 1994) cert. denied 515 U.S. 1122 (1995).  Indeed, the prosecution is the only government agency with a Kyles duty to the accused.  Mowbray v. Cameron County, 274 F.3d 269, 277 (5th Cir. 2001).”

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