2008 edition - Fort Sam Houston - U.S. Army

Providing broad discovery at an early stage reduces pretrial motions
practice and surprise and delay at trial. It leads to better
informed judgment about the merits of the case and encourages
early decisions concerning withdrawal of charges, motions, pleas,
and composition of court-martial. In short, experience has shown
that broad discovery contributes substantially to the truth-finding
process and to the efficiency with which it functions. It is essential
to the administration of military justice; because assembling
the military judge, counsel, members, accused, and witnesses is
frequently costly and time-consuming, clarification or resolution
of matters before trial is essential.
The rule clarifies and expands (at least formally) discovery by
the defense. It also provides for the first time some discovery by
the prosecution. See subsection (b) of the rule. Such discovery
serves the same goal of efficiency.
Except for subsection (e), the rule deals with discovery in
terms of disclosure of matters known to or in the possession of a
party. Thus the defense is entitled to disclosure of matters known
to the trial counsel or in the possession of military authorities.
Except as provided in subsection (e), the defense is not entitled
under this rule to disclosure of matters not possessed by military
authorities or to have the trial counsel seek out and produce such
matters for it. But see Mil. R. Evid. 506 concerning defense
discovery of government information generally. Subsection (e)
may accord the defense the right to have the Government assist
the defense to secure evidence or information when not to do so
would deny the defense similar access to what the prosecution
would have if it were seeking the evidence or information. See
United States v. Killebrew, supra; Halfacre v. Chambers, 5 M.J.
1099 (C.M.A. 1976).
(a) Disclosure by the trial counsel. This subsection is based in
part on Fed. R. Crim. P. 16(a), but it provides for additional
matters to be provided to the defense. See ABA Standards, Discovery
and Procedure Before Trial § 11–2.1 (1978). Where a
request is necessary, it is required to trigger the duty to disclose
as a means of specifying what must be produced. Without the
request, a trial counsel might be uncertain in many cases as to the
extent of the duty to obtain matters not in the trial counsel’s
immediate possession. A request should indicate with reasonable
s p e c i f i c i t y w h a t m a t e r i a l s a r e s o u g h t . W h e n o b v i o u s l y d i s -
coverable materials are in the trial counsel’s possession, trial
counsel should provide them to the defense without a request.
“Inspect” includes the right to copy. See subsection (h) of this
rule.
Fed. R. Crim. P. 16(a)(1)(A) is not included here because the
matter is covered in Mil. R. Evid. 304(d)(1). The discussion under
subsection (a)(6) of this rule lists other discovery and notice
provisions in the Military of Evidence.
Subsection (1) is based on paragraph 44 h of MCM, 1969
(Rev.). See also paragraph 33 i, id. 18 U.S.C. § 3500(a) is contra;
the last sentence of Article 32(b) reflects Congressional intent that
the accused receive witness statements before trial.
Subsection (2) is based on paragraph 115 c of MCM, 1969
(Rev.) and parallels Fed. R. Crim. P. 16(a)(1)(C) and (D).
Subsection (3)(A) is based on the last sentence in the second
paragraph of paragraph 44 h of MCM, 1969 (Rev.). See also
Appendix 5 at A5–1 of MCM, 1969 (Rev.); United States v.
Webster, 1 M.J. 216 (C.M.A. 1975). Subsection (3)(B) is based
on Fed. R. Crim. P. 12.1(b). Fed. R. Crim. P. 12.2 (notice based
ANALYSIS
App. 21, R.C.M. 701(b)
on mental condition) contains no parallel requirement for disclosure
of rebuttal witnesses by the prosecution. The defense will
ordinarily have such information because of the accused’s particip
a t i o n i n a n y c o u r t - o r d e r e d e x a m i n a t i o n , s o t h e d i s t i n c t i o n
diminishes in practice. In the interest of full disclosure and fairness,
subsection (3)(B) requires the prosecution to notify the defense
of rebuttal witnesses on mental responsibility. See also
R.C.M. 706.
1991 Amendment: Subsection (a)(3)(B) was amended to provide
for prosecution disclosure of rebuttal witnesses to a defense
of innocent ingestion. This conforms to the amendment to R.C.M.
701(b).
Subsection (4) is based on Fed. R. Crim. P. 16(a)(1)(B). The
language is modified to make clear that the rule imposes no duty
on the trial counsel to seek out prior convictions. (There is an
ethical duty to exercise reasonable diligence in doing so, howeve
r . S e e A B A C o d e o f P r o f e s s i o n a l R e s p o n s i b i l i t y , D R
6–101(A)(2); EC 6–4(1975).) The purpose of the rule is to put the
defense on notice of prior convictions of the accused which may
be used against the accused on the merits. Convictions for use on
sentencing are covered under subsection (a)(5). Because of this
distinction, under some circumstances the trial counsel may not
be able to use a conviction on the merits because of lack of
timely notice, but may be able to use it on sentencing.
Subsection (5) is based on paragraph 75 b(5) of MCM, 1969
(Rev.) Cf. Fed. R. Crim. P. 32(c)(3).
Subsection (6) is based on ABA Standards, The Prosecution
Function § 3–3.11(a) (1979); ABA Standards, Discovery and Procedure
Before Trial § 11–2.1(c) (1978). See also United States v.
Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83
(1963); United States v. Brickey, 16 M.J. 258 (C.M.A. 1983);
United States v. Horsey, 6 M.J. 112 (C.M.A. 1979); United States
v. Lucas, 5 M.J. 167 (C.M.A. 1978); ABA Code of Professional
Responsibility, DR 7–103(B) (1975).
(b) Disclosure by defense. This subsection is based on Fed. R.
Crim. P. 12.1, 12.2, and 16(b)(1)(A) and (B). See generally Williams
v. Florida, 399 U.S. 78 (1970). The requirement in Fed. R.
Crim. P. 12.1 for a written request by the prosecution for notice
of an alibi defense was deleted because it would generate unnecessary
paperwork. The accused is adequately protected by the
opportunity to request a bill of particulars.
1986 Amendment. The phrase “a mental disease, defect, or
other condition bearing upon the guilt of the accused” was deleted
from this subsection, with other language substituted, in conjunction
with the implementation of Article 50a, and the phrase “or
partial mental responsibility” was deleted from the discussion to
conform to the amendment to R.C.M. 916(k)(2).
1991 Amendment: Subsection (b)(1) has been revised to expand
the open discovery that is characteristic of military practice.
It provides the trial counsel with reciprocal discovery and equal
opportunity to interview witnesses and inspect evidence as that
available to the defense under subsection (a). See Article 46,
U.C.M.J., and R.C.M. 701(e). Enhanced disclosure requirements
for the defense are consistent with a growing number of state
jurisdictions that give the prosecution an independent right to
receive some discovery from the defense. See Mosteller, Discovery
Against the Defense: Tilting the Adversarial Balance, 74
Calif. L. Rev. 1567, 1579–1583 (1986). Mandatory disclosure
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