Discussion of discovery in military court-martials
Below is a sample discovery request for a general court-martial.
A critical element of pre-trial organization is the obligation of trial advocates to comply with the discovery rules. Both Trial Counsel and Defense Counsel possess this reciprocal obligation in order to ensure a fair trial. For Trial Counsel, however, this obligation is especially significant because most if not all incriminating evidence is in the control of the prosecution and material to the preparation of the defense.
Regulation of Discovery
The basic rules for discovery, to include the basic remedies available for noncompliance, come from RCM 701(g). However, many discovery rules contain their own remedies for noncompliance. See RCMs 308(c), 405(j)(4), 914(e), 1004(b)(1)(A); MREs 301(c)(2), 302(d), 304(d)(2)(B), 311(d)(2)(B), 321(c)(2)(B), 505, 506, 507, 612
- 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
- Introduction to discovery in the military
- Duty to preserve evidence
- Regulation of production of witness and evidence under the UCMJ
- Protective and modifying orders
- Remedies for Nondisclosure
Pretrial discovery orders
The military judge may issue pretrial orders that regulate when the parties will provide notices and make disclosures to the other party. “The military judge may, consistent with this rule, specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just.” RCM 701(g)(1). The judiciary “may make rules of court not inconsistent with these rules for the conduct of court-martial proceedings.” RCM 108.
Exculpatory or impeachment evidence must be disclosed by the government
When Trial Counsel possesses exculpatory or impeachment evidence that is material to guild or punishment, this evidence must be disclosed to the defense. These rules are established by RCM 701, the Jencks Act, found at RCM 914, Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). It is absolutely imperative that trial advocates know these rules and consider thoroughly how to meet these obligations in each case.
Discovery is not for gamesmanship
Trial Counsel should be mindful that while the rules provide that the disclosures be made in sufficient time to permit the defendant to make effective use for the information at trial, it is never a wise practice to withhold the evidence for tactical purposes, only to disclose it in advance of trial but allowing the defense minimal opportunity to prepare. This is not an area for gamesmanship.
Providing broad and early discovery promotes military justice
Generally, providing broad and early discovery promotes the truth-seeking aspect of the pre-trial and trial process and can help foster speedy resolution of cases. There are countervailing circumstances to consider, however, particularly the safety of victims and witnesses, protection of privacy, privileged information, integrity of on-going investigations, etc. Trial advocates should be familiar with the rules and seek guidance from supervisors. Additionally, trial advocates should keep a thorough record regarding such disclosures. And failure to disclose this evidence has severe ethical consequences.
Below is a sample discovery request to be used in a military court-martial:
In anticipation of hearings and potential trial in this case, pursuant to any/all US military regulations, instructions, policies or other guidance governing discovery obligations, the Rules of Practice before courts-martial, the Rules for Courts-Martial (RCM), including RCM 405 and RCM 701; the Military Rules of Evidence (MRE); applicable military case law interpreting UCMJ, RCM and MRE discovery obligations; Federal Rule of Criminal Procedure 16; and Brady v. Maryland, 373 U.S. 830, the defense in the above referenced case respectfully submits this initial defense discovery request and asks that the government provide the information/discovery described below.
Continuing Discovery Request & Request for Formal Response:
The defense respectfully requests a formal response to its discovery requests that corresponds with each specific paragraph and subparagraph of the request, according to the numbers or letters of each (sub) paragraph. Response in this fashion will put the defense on notice of whether there are any discovery issues that require judicial determination.
This request is meant to supplement any request previously submitted by defense counsel. All defense discovery requests, including any previous requests, are continuing requests and apply to any pretrial hearing and up to, and through, trial in this case. RCM 701(d); United States v. Brickey, 16 M.J. 258 (C.M.A. 1983); United States v. Eshalomi, 23 M.J. 12 (C.M.A. 1986).
Privilege/Non Disclosure Log:
Applicable to all defense discovery requests, the defense respectfully requests that if the government knows of the existence of items/information responsive to the defense request(s), but does not consider the information to be discoverable due to relevance, privilege or some other justification for non-disclosure, the government identify the item(s) or information in a privilege/non disclosure log to be presented to a judge for inspection and judicial determination of discoverability.
The following request is meant to supplement, not supersede, any previous defense discovery requests. Please respond to each specific paragraph and subparagraph of this request, according to the numbers and/or letters below.
Any/all information or evidence obtained from body views and intrusions. [MRE 312]
Any/all information or evidence obtained from inspections and inventories. [MRE 313]
Any/all information or evidence obtained from searches not deemed to require probable cause. [MRE 314]
Any/all information or evidence obtained from searches deemed to require probable cause. [MRE 315]
Any/all information or evidence obtained from seizures. [MRE 316]
Any/all information or evidence obtained from interception of wire and oral communications. [MRE 317]
Any/all information or evidence derived from eyewitness identification. [MRE 321]
Any/all MRE 404 information or evidence to be used during any phase of trial, or pretrial hearing, regarding any witness, party, alleged victim or accused.
Any/all information or evidence which may be subject to a privilege identified in the 500 series of the Military Rules of Evidence which the government has discovered, obtained, possesses, exercises care, custody or control over, or which the government intends to attempt to admit at any phase of the trial, or pretrial hearing.
Any/all information or evidence addressed in MRE 608 that the government intends to use during any phase of trial, or pretrial hearing, regarding any witness, party, alleged victim or accused.
Any/all information or evidence addressed in MRE 609 which the government intends to use during any phase of trial, or pretrial hearing, regarding any witness, party, alleged victim or accused.
Any/all lay opinion testimony that the government intends to elicit during any phase of trial, or pretrial hearing, in accordance with MRE 701.
Any/all expert opinion testimony that the government intends to elicit during any phase of trial, or pretrial hearing, in accordance with MRE 702.
Any evidence of an exculpatory nature or which tends to negate the alleged guilt of the accused. RCM 701(a)(6)(A); DR 7-1038; JAJ Letter 83-2.
Any evidence which would lessen the punishment of the accused should he be found guilty of any offense. RCM 701(a)(6)(C).
Any evidence which would tend to mitigate the degree of the alleged offense. RCM 701(a)(6)(B).
Information About the Accused:
Statements: Any/all handwritten, typed or recorded statements by the accused in connection with the investigation of this case, to include summaries of conversations with any civilian or military investigator or any other representatives of the government.
Statements: The contents of any/all statements, oral or written, made by the accused that are relevant to the case, known to the trial counsel, and within the care custody or control of the armed forces. This disclosure must state the specific content of each individual statement, who the statement was made to, and when the statement was made. Disclosure is requested prior to arraignment pursuant to MRE 304(d)(1).
Evidence: Disclosure of any/all evidence seized from the person or property of the accused, or believed to be owned by the accused, that the government took possession of, or exercises care, custody or control over, during the investigation of this matter and/or intends to offer into evidence against the accused at trial or pretrial hearing. Disclosure is requested prior to arraignment pursuant to MRE 311(d)(1).
Uncharged Misconduct: Disclosure of any/all evidence of uncharged misconduct, and whether the government intends to present this evidence at any phase of a potential trial or pretrial hearing.
MRE 404 Evidence: Disclosure of any/all MRE 404 evidence, and whether the government intends to present this evidence at any phase of a potential trial, or pretrial hearing.
Personnel File: Any/all documentation within the accused’s personnel record, at all levels of command.
Financial Records: If done, copies of any/all documents used to obtain any of the accused’s financial records, as well as copies of all documents used to obtain the financial records of any witnesses in this case, if any.
Reading Rights: Copies of any/all documents that indicate occasions in which the accused was read his constitutional and/or Article 31 rights.
Credibility: Any/all known evidence tending to diminish credibility of witnesses/alleged victim/co-actor including, but not limited to:
(1) Prior civil or military convictions [See MRE 609] as well as discharge actions from the military, specifically including all associated records. The defense specifically requests that the government subpoena any such records not already within its control;
(2) Evidence of other character, conduct, or bias bearing on witness credibility including, but not limited to, evidence of prior to non-judicial punishment (Article 15) action(s) and adverse administrative actions in the government’s possession or reasonably obtainable. See MRE 608; Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972); U.S. v. Agurs, 427 U.S. 97 (1976); U.S. v. Brickey, 16 M.J. 258 (C.M.A. 1983), U.S. v. Gabrels, 33 M.J. 622 (AFCMR 1991).
Immunity: Disclosure of any/all immunity or leniency granted to witness or to potential witnesses. Disclosure is requested pursuant to MRE 301 (c)(2) and U.S. v. Webster, 1 M.J. 216 (C.M.A. 1975).
Personnel Records: Access to any/all relevant personnel records of all potential witnesses/alleged victim(s)/co-actor(s) who may testify against the accused in any pretrial hearing, at trial on the merits, or during a potential sentencing phase whether they are presently in the military or have been discharged at an earlier date. U.S. v. Reece, 25 M.J. 93 (C.M.A. 1987).
Witnesses: The names, locations, and telephone numbers of any/all witnesses and potential witnesses used in developing the case against the accused. This includes, but is not limited to, confidential informants. Any discovery requested in reference to a “witness” includes confidential informants.
Contact Information: The contact information for any/all witnesses identified in any investigative report or to be called as witnesses on behalf of the government in any trial or pretrial hearing.
Military Status: The military status of any/all witnesses/alleged victim(s)/co-actor(s). As to those presently in civilian status, request the date of separation from the military, the discharge or other provisions used to effect such discharge, and a summary of circumstances explaining any discharges for other than completion of the obligated term of service.
Witness List: A written list of witnesses (to include business address and phone number) to be used in any pretrial hearing or any phase of the potential trial.
Information About the Investigation:
Any/all documentation generated in the investigation of this case, including personal or business notes, logs, forms, reports, summaries, memoranda, and writings prepared by any/all investigators in this case which are not furnished pursuant to any other provisions of this request. This includes, but is not limited to:
(1) Any/all civilian law enforcement agents/investigators;
(2) Any/all military law enforcement agents/investigators;
(3) CID or military police or other investigative agent’s notes;
(4) Internal data pages;
(5) Interview logs;
(6) Informant’s notes
(7) Background information about any confidential informants/sources
Any/all completed CID and/or military police or other investigative reports (including any/all supplements, inserts, attachments, or additional reports), and any/all statements or reports which may later become discoverable under the Jencks Act, 18 U.S.C. 3500.
Copies of any/all reports, statements, or conclusions of experts or technicians made in connection with this case. This request includes, but is not limited to:
(1) Final Reports;
(2) Interim reports;
(3) Addendums, inserts and attachments;
(4) Expert’s notes;
(5) Written analysis,
(6) The contents of any/all communication between any/all analyst(s)/expert(s) and any governmental agency, by any means; and,
(7) Copies of any/all literature, reference materials, learned treatises, texts or other authoritative sources specifically referred to or relied upon by the analyst(s)/expert(s) in formulating his opinion. See Fed. Rules Crim. Proc.16 (a)(D).
The request in the subparagraph above also includes, but is not limited to:
(2) Medical doctors;
(4) Any/all medical personnel;
(5) Crime scene processors;
(6) DNA analysis;
(7) Fingerprint analysis;
(8) Fiber analysis;
(9) Field Test of Substances;
(10) Forensic Analysis of any Substances seized;
(11) Any law enforcement experts; and,
(12) Any psychological experts.
The names, locations, and telephone numbers of any/all investigators, military and civilian, who have participated in, or are presently participating in, the investigation of this case.
The nature and results of any/all electronic surveillance (including, but not limited to, wiretapping, bugging, and video surveillance) of the accused, his premises or conversations/communications.
Information which was obtained from an informant whose information and identity have not already been disclosed.
Notes, transcripts or recordings from any/all pretext phone conversations held in this case.
The names, locations, and contact information for all experts (consultant or potential witness) used by the prosecution to develop its case. Please be advised that the government is not entitled to the assistance of confidential experts (that is an exclusive defense right), therefore, please provide all requested information for any expert consulted by the government in this case or intended to be called as a witness for the government at any pretrial hearing or any phase of trial.
The following information from CID and/or military police or other investigative agencies which directly or indirectly mention or pertain to the accused or any government witnesses/alleged victim, or which is otherwise relevant to this case:
(1) Any investigative source and target management records;
(2) Investigative interview log documentation;
(3) The investigative agency Operations Plan and all addendums in this case;
(4) The Complaint Form and any continuation sheets;
(5) Documents relating to the assessment of sources to include, but not be limited to, agent notes, coordination documents, and the pre-operations meeting memo;
(6) All messages and documents used to communicate between various levels of investigative agency and government on the case (i.e. base level, command level, department level, etc.)
(7) Staff Summary Sheets or memoranda sent to headquarters and its staff to keep the investigative agency’s superiors appraised of the particular situation or operation;
(8) All Reports of Investigation, including all internal data pages, attachments, addenda, and post-operational assessment reports;
(9) Any documents relating to agent misconduct of the agents assigned to the investigation of this case. This includes, but is not limited to,
(i) Information as to whether the case agent’s credentials were ever revoked or suspended
(ii) Information as to whether the case agent was ever a suspect in any internal investigation.
(iii) Any/all disciplinary records, to include, but not be limited to, records of counselings, reprimands, admonitions, non-judicial punishment, etc.
(iv) Any/all complaints, allegation or charges made by against the case agent by any military member or civilian.
(10) Documents pertaining to the training of the agents involved in this case to include, but not be limited to, OJT records, CDC records, specialty training forms, revocation of agent’s credentials, and whether or not the agent was ever a suspect in an internal investigation. Documents and records pertaining to the training of the case agent, to include a list of all courses included in the curriculum of training and all criminal investigative courses attended by the case agent;
(11) Access to the performance reports of all agents assigned to the investigation of this case;
(12) Any checklists used in the case;
(13) Any agents’ notes;
(14) Notification of any information that has been destroyed;
(15) Complete copies of any written search authorizations or summaries of memoranda prepared concerning any oral search authorizations, together with any affidavits or statements in support of such authorizations and other writings prepared by the search authorizing authority, law enforcement agents or judge advocates in support of such authorizations or during the obtaining of the search authority;
(16) Copies of all evidence tags of other chain of custody documents concerning evidence the government intends to offer at trial or at any hearings;
(17) Any and all “developmental files” pertinent to this case;
(18) All CID or military police or other investigative agency documents, regulations, instructions, policies, guidelines and any other such guidance concerning:
Investigations of military members accused of the offense(s) the accused has allegedly committed;
Any and all memoranda or other written correspondence, including emails, between the Special Court Martial Convening Authority (SPCMA), the General Court Martial Convening Authority (GCMA), and the Squadron Commander, that discuss this particular case and include any recommendations as to disposition of the alleged offenses.
Any and all documents prepared and/or signed by the Squadron Commander prior to preferral of charges documenting his disposition recommendation to the SPCMCA in this particular case.
Any and all documents prepared and/or signed by the SPCMCA memorializing his initial disposition decision in this particular case.
Documents and any other items of real evidence (and their locations) intended to be used in any pretrial hearing to include an Article 32 hearing, and/or any potential phase of trial.
Access to pertinent background information of the prospective court members. This includes, but is not limited to:
(1) Court member data sheets for members selected to serve on the court;
(2) Court member data sheets for members not selected to serve on the court but whose names were submitted to the Convening Authority as possible court members; and,
(3) Any/all documentation generated in the referral process, to include but not be limited to, communications between the legal office and Convening Authority, court member selection documents, court member data, pretrial and court member selection legal advice.
(4) Any/all subpoena duces tecum issued by the prosecution to any entity.
(5) Any/all evidence in the possession of the government or otherwise known to trial counsel which reasonably may tend to:
(1) Negate the guilt of the accused;
(2) Reduce the guilt of the accused to the offense charged; or;
(3) Reduce the punishment, See RCM 701 (a)(6).
Any evidence, witnesses, or other matters the prosecution anticipates it may introduce in rebuttal at trial. U.S. v. Trimper, 28 MJ 461 (C.M.A. 1989).
All charge sheets and findings worksheets that will be used in the court-martial.
Photographs, Video, or Other Pictorial or Video Media (i.e. photo CD, DVD, digital, etc.):
Any/all photographs taken by any person officially involved in this case or to be presented as evidence by the prosecution at any pretrial hearing or any phase of trial. This includes, but is not limited to:
(1) Photographs of the interior and exterior of any crime scene; and
(2) Photographs of all evidence.
Any/all video recordings made in the investigation of this case. This includes, but is not limited to:
(1) Video of any crime scene;
(2) Video of all evidence;
(3) Video of any interviews of the accused; and,
(4) Video of any witness interviews.
All audio recordings made in this case. This includes, but is not limited to:
(1) Interviews of the accused;
(2) Interviews of any witnesses;
(3) Recordings of wiretapping, “bugging”, surreptitious recordings of the accused or recordings of pretext phone calls; and,
(4) Dictated notes made by investigators and/or experts.
Draft Statements/Affidavits: Please provide any draft statements/affidavits provided to any witness/victim in this case for edits, regardless of the author of the statement.
The defense is making this request on the grounds that the accused cannot properly prepare his case – any pretrial hearing, or trial – without production and inspection of the documents, items and information requested. Based on the nature and volume of the information requested, the defense will not be able to proceed to trial if receipt of this information is not timely.
The defense requests the government inform defense counsel if it does not intend to comply with any of the provisions of this request. You need not duplicate any requested information if already supplied; simply note that fact in your response.
This first discovery request is a continuing request and applies to any pretrial hearing and up to, and through, trial in this case. RCM 701(d); Standard 11-4.3; United States v. Brickey, 16 M.J. 258 (C.M.A. 1983); United States v. Eshalomi, 23 M.J. 12 (C.M.A. 1986).
The defense expects the government will make a reasonably diligent effort to comply with this discovery request; and, as to any particular requested information, the defense will regard any non-response or response without comment as an affirmative assertion by the government that the requested information does not exist. United States v. Green, 37 M.J. 88, 89, n.2 (C.M.A. 1993).
Attorney at Law
CERTIFICATE OF SERVICE
I hereby certify that a copy of this request was served on the Trial Counsel via email on 10 September 2021.
Attorney at Law