Defense requests

Overview of defense requests:

  1. Documents and tangible objects. RCM 701(a)(2)(A).
    1. Where the defense makes a specific discovery request and the government fails to disclose that evidence, or where there is prosecutorial misconduct, the standard of review is harmless beyond a reasonable doubt.
    2. “Where an appellant demonstrates that the Government failed to disclose discoverable evidence in response to a specific request or as a result of prosecutorial misconduct, the appellant will be entitled to relief unless the Government can show that nondisclosure was harmless beyond a reasonable doubt.”
      United States v. Roberts
      , 59 M.J. 323 (C.A.A.F. 2004).
      See also United States v. Green
      , 37 M.J. 88, 90 (C.M.A. 1993) (Wiss, J., concurring);
      United States v. Stone
      , 37 M.J. 558 (A.C.M.R. 1993) (finding nondisclosure harmless beyond a reasonable doubt).
    3. For more, see the RCM 701(a)(2) discussion in section IV above.
  2. Reports. RCM 701(a)(2)(B)
  3. Sentencing materials and witnesses. RCM 701(a)(5):
  4. Notice of uncharged misconduct (reasonable notice in advance of trial). MRE 404(b).
  5. Statements by a witness that has testified (after testimony). RCM 914.
    1. 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 that relates to the subject of his testimony.
    2. RCM 914 is a counterpart to the Jencks Act, 18 U.S.C. § 3500.
    3. For more, see the RCM 914 in section IV above.
  6. Writings used to refresh memory (while testifying, or before testifying if the judge determines it is necessary in the interest of justice). MRE 612.
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