Overview of the production standards for the defense:
Witnesses. RCM 703(c)(2). The defense shall submit to the trial counsel a written list of the witnesses that the defense wants the government to produce.
Merits and interlocutory questions. Requests shall include: (1) A synopsis of the expected testimony sufficient to show its relevance and necessity. (2) The contact information found in RCM 703(c)(2)(B)(i). See, e.g., the United States v. Barreto , 57 M.J. 127 (C.A.A.F. 2002).
Sentencing. Requests shall include: (1) A synopsis of the expected testimony and why personal appearance is necessary under the standards set forth in RCM 1001(e). Personal appearance is required only if all of the below are satisfied: (a) The testimony is necessary for consideration of a matter of substantial significance to a determination of an appropriate sentence. (b) The weight or credibility of the testimony is of substantial significance to the determination of an appropriate sentence. (c) The other party refuses to enter into a stipulation of fact. (d) Other forms of evidence (depositions, interrogatories, former testimony, testimony by remote means) would not be sufficient in the determination of an appropriate sentence. (e) The significance of the personal appearance to the determination of an appropriate sentence, when balanced against the practical difficulties of producing the witness, favors production. (i) See RCM 1001(e)(2)(E) for a list of factors related to this balancing test. (2) The contact information found in RCM 703(c)(2)(B)(ii).
Evidence. RCM 703(f)(3).
Defense requests for evidence shall: (1) List the items of evidence to be produced, and (2) Must include a description of each item sufficient to show its relevance and necessity. (3) Must include a statement of where it can be obtained; and, if known, the name, address, and telephone number of the custodian of the evidence.
Generally, the government has no responsibility to create records to satisfy demands for them. United States v. Birbeck, 35 M.J. 519, 522 (A.F.C.M.R. 1992) (military judge did not err in denying defense request for the government to create laboratory reports on two negative urinalysis). The court used “discovery” language rather than “production” language. If the government will not produce a report, the defense can seek the employment of an expert witness, who can then test the evidence and produced a report. See, e.g., United States v. Walker, 66 M.J. 721 (N-M. Ct. Crim. App. 2008).
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