Discovery basics in the military justice system
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.”
- 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
- Government requests for discovery
- Mandatory disclosure or notice requirements for trial counsel
- Duty to preserve evidence
- Regulation of production of witness and evidence under the UCMJ
- Regulation of Discovery
- Protective and modifying orders
- Remedies for Nondisclosure
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.
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.