Names and addresses of sentencing witnesses. RCM 701(b)(1)(B)(i). Due upon request.
Written sentencing materials. RCM 701(b)(1)(B)(ii). Due upon request.
Reciprocal discovery. If the defense requests discovery under RCM 701(a)(2), upon compliance with such request by the government, the defense, on request of the trial counsel, shall permit the trial counsel to inspect:
Papers, documents, photographs, objects within the possession, custody and control of the defense and which the defense intends to introduce as evidence in the defense case-in-chief. RCM 701(b)(3). Due upon government request and government compliance with defense request.
Reports of physical or mental examinations and scientific tests or experiments within the possession, custody and control of the defense and which the defense intends to introduce as evidence in the defense case-in-chief or which were prepared by a defense witness who will be called at trial. RCM 701(b)(4). Due upon government request and government compliance with defense request.
Statements by a witness that testifies (after testifying, upon motion). RCM 914.
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.
RCM 914 is a counterpart to the Jencks Act, 18 U.S.C. § 3500.
For a complete discussion of RCM 914 and the Jencks Act, see paragraph IV.b.5 above.
Writings used to refresh memory (while testifying, or before testifying if the judge determines it is necessary in the interest of justice). MRE 612.
Keep track of what your witness looks at in preparation for testifying.
Inconsistent prior statements (on request). MRE 613(a).
Full contents of the sanity board (upon motion). MRE 302(c).
If the defense offers expert testimony concerning the mental condition of the accused, the military judge shall order the release of the full contents (except for statements made by the accused).
If the defense also offers the statements made by the accused at the sanity board, the military judge may also order the disclosure of those statements.
Practice tip. Note that if the trial counsel does not ask for certain information, the defense is under no obligation to provide it – so ask for it.