Government requests

Government requests for discovery

Discovery rules in a military court-martial

• 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.

• Discovery and Expert Assistance under the UCMJ
• Appointment and Production of Expert Assistance
• Appointment and Production of Expert Witnesses
• Discovery and trial advocacy
• Defense Discovery Responsibilities and Requests
• Disclosures or notices made upon government request (not based on reciprocity)
• Mandatory disclosure or notice requirements for defense counsel
• Disclosures made upon government requests (based on reciprocity)
• Discovery in the Military Justice system
• Mandatory disclosure or notice requirements for trial counsel
• Introduction to discovery in the military
• Duty to preserve evidence
• Enforcement
• Regulation of production of witness and evidence under the UCMJ
• Regulation of Discovery
• Protective and modifying orders
• Remedies for Nondisclosure

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.
• 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.
• If the trial counsel does not ask for certain information, the defense is under no obligation to provide it – so ask for it.