Discovery Basics In The Military Justice System | UCMJ Attorneys

Introduction to discovery and production basics in the military justice system

The rules for discovery

The rules for discovery establish how each party will help the other party to develop the other party’s case. Fundamentally, these rules govern how the parties will exchange information. Discovery is a broad term. It means attaining that which was previously unknown. Black’s Law Dictionary 322 (6th ed. 1991). It includes “the pre-trial devices that can be used by one party to obtain facts and information about the case from the other party in order to assist the party’s preparation for trial.”
Id.

Generally, one party requests discovery , to which the other party provides disclosure of the material. Disclosure means to bring into view or to make known. Id. at 320. The terms “disclosure” and “allowing to inspect” are often used interchangeably. The difference is really just a question of which party has to press the button on the copy machine. Discovery includes disclosure of something tangible or notice of something intangible, like a party’s intent to do something.

The discovery rules in the military are very liberal and are designed to encourage an efficient system. Requiring parties to exchange information early in the process reduces pretrial motions practice; reduces surprise and gamesmanship; reduces delay at trial when delay is especially costly because the court is assembled; leads to better-informed decisions about the merits of the case; and encourages early decisions concerning withdrawal of charges, motions, pleas, and composition of court-martial. Showing your cards encourages realistic settlements. James W. McElhaney, Discovery is the Trial , A.B.A. J., Aug. 2007, at 26.

Discovery outline

This outline is set up so that you can go to your respective section (government or defense) and see what you must disclose (even without the other party asking for anything); what you must disclose if the other party asks; and what discovery you can seek from the other party. Look to the other party’s section on mandatory disclosures to see what that party owes you even if you do not ask for anything.

This outline contains those discovery requirements that are found in the Rules of Practice that relate to the exchange of information between the parties. The Rules of Practice contain other requirements for the exchange of information between the parties and the military judge, to include the exchange of information related to motions. Chapter 5, AR 27-10 also contains requirements for information exchanges with the military judge.

Production basics

Production and discovery are different concepts. Discovery deals with case development. Information learned during the discovery process may or may not ultimately be introduced at trial.

Production is where one party (typically, the defense) requests that the other party (typically, the government) be responsible for ensuring a witness or item of evidence makes it to the courthouse on the date scheduled for a motions hearing or trial. The party seeking production intends to call this witness or introduce this evidence at the hearing or trial. If the accused is denied production, or does not want to request that the government produce a witness or some evidence, the accused can always arrange for the production of that witness or evidence at his own expense (having family members drive in on sentencing but not seek reimbursement from the government, for example).

In the federal system, the judiciary is responsible for processing witness and evidence requests. In the military, the command which convened the court-martial is responsible for those duties. The production rules found in RCM 703 explain what the defense must include in its requests; that the trial counsel can grant the requests; and if the trial counsel denies the request, that the military judge will rule on the production of the witness or evidence.