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

App. 21, R.C.M. 701(b) APPENDIX 21
requirements by the defense will better serve to foster the truthfinding
process.
1991 Amendment: Subsection (b)(2) was revised to add the
requirement that the defense give notice of its intent to present
the defense of innocent ingestion. The innocent ingestion defense,
often raised during trials for wrongful use of a controlled substance,
poses similar practical problems (e.g., substantial delay in
proceedings) as those generated by an alibi defense, and thus
merits similar special treatment.
2002 Amendment: Subsection (b)(4) was amended to take into
c o n s i d e r a t i o n t h e p r o t e c t i o n s a f f o r d e d b y t h e n e w
psychotherapist-patient privilege under Mil. R. Evid. 513.
1991 Amendment: Subsection (b)(5) was amended to clarify
that when the defense withdraws notice of an intent to rely upon
the alibi, innocent ingestion, or insanity defenses, or to introduce
expert testimony of the accused’s mental condition, neither evidence
of such intention, nor statements made in connection therewith,
are admissible against the servicemember who gave notice.
This rule applies regardless of whether the person against whom
the evidence is offered is an accused or a witness. Fed. R. Crim.
P. 12.1 and 12.2, upon which the subsection is based, were
similarly amended [ See H.R. Doc. No. 64, 99th Cong., 1st Sess.
17–18 (1985)].
(c) Failure to call witness. This subsection is based on repealed
subsection (a)(4) and (b)(3) of Fed. R. Crim. P. 16. Those subsections
were inadvertently left in that rule after the notice of witnesses
provisions were deleted by the conference committee. Act
of December 12, 1975, Pub. L. No. 94–149, § 5, 89 Stat. 806. But
see Fed. R. Crim. 12.1(f). Because notice of witnesses under
R . C . M . 7 0 1 i s r e q u i r e d o r o t h e r w i s e e n c o u r a g e d ( s e e a l s o
R.C.M. 703), such a provision is necessary in these rules.
(d) Continuing duty to disclose. This subsection is based on Fed.
R. Crim. P. 16(c). See also ABA Standards, Discovery and Procedure
Before Trial § 11–4.2 (1978).
(e) Access to witnesses and other evidence. This subsection is
based on Article 46; paragraphs 42 c and 48 h of MCM, 1969
(Rev.); United States v. Killebrew, supra; Halfacre, v. Chambers,
supra; United States v. Enloe, 15 U.S.C.M.A. 256, 35 C.M.R.
228 (1965); United States v. Aycock, 15 U.S.C.M.A. 158, 35
C.M.R. 130 (1964). The subsection permits witness (e.g., informant)
protection programs and prevents improper interference with
preparation of the case. See United States v. Killebrew and United
States v. Cumberledge, both supra. See also subsection (f) of this
rule; Mil. R. Evid. 507.
1986 Amendment. The discussion was added, based on United
States v. Treakle, 18 M.J. 646 (A.C.M.R. 1984). See also United
States v. Tucker, 17 M.J. 519 (A.F.C.M.R. 1984); United States v.
L o w e r y , 1 8 M . J . 6 9 5 ( A . F . C . M . R . 1 9 8 4 ) ; U n i t e d S t a t e s v .
Charles, 15 M.J. 509 (A.F.C.M.R. 1982); United States v. Estes,
28 C.M.R. 501 (A.B.R. 1959).
(f) Information not subject to disclosure. This subsection is based
on the privileges and protections in other rules (see, e.g., Mil. R.
Evid. 301 and Section V). See also Goldberg v. United States,
4 2 5 U . S . 9 4 ( 1 9 7 6 ) ; U n i t e d S t a t e s v . N o b l e s , 4 2 2 U . S . 2 2 5
(1975); Hickman v. Taylor, 329 U.S. 495 (1947). It differs from
Fed. R. Crim. P. 16(a)(2) because of the broader discovery requirements
under this rule. Production under the Jencks Act, 18
U.S.C. § 3500, is covered under R.C.M. 914.
A21-34
(g) Regulation of discovery. Subsection (1) is based on the last
sentence of Fed. R. Crim. P. 16(d)(2). It is a separate subsection
to make clear that the military judge has authority to regulate
discovery generally, in accordance with the rule. Local control of
discovery is necessary because courts-martial are conducted in
such a wide variety of locations and conditions. See also R.C.M.
108.
Subsection (g)(2) is based on Fed. R. Crim. P. 16(d)(1). Cf.
Mil. R. Evid. 505; 506. See also ABA Standards, Discovery and
Procedures Before Trial § 11–4.4 (1978).
Subsection (g)(3) is based on Fed. R. Crim. P. 16(d)(2), but it
also incorporates the noncompliance provision of Fed. R. Crim.
P.12.1(d) and 12.2(d). But see Williams v. Florida, supra at 83 n.
14; Alicea v. Gagnon, 675 F. 2d 913 (7th Cir. 1982). The discussion
is based on United States v. Myers, 550 F.2d 1036 (5th Cir.
1977), cert. denied, 439 U.S. 847 (1978).
1993 Amendment. The amendment to R.C.M. 701(g)(3)(C),
based on the decision of Taylor v. Illinois, 484 U.S. 400 (1988),
recognizes that the Sixth Amendment compulsory process right
does not preclude a discovery sanction that excludes the testimony
of a material defense witness. This sanction, however,
should be reserved to cases where the accused has willfully and
blatantly violated applicable discovery rules, and alternative sanctions
could not have minimized the prejudice to the Government.
See Chappee v. Commonwealth Massachusetts, 659 F.Supp. 1220
(D. Mass. 1988). The Discussion to R.C.M. 701(g)(3)(C) adopts
the test, along with factors the judge must consider, established
by the Taylor decision.
(h) Inspect. This subsection is based on Fed. R. Crim. P. 16.
Rule 702 Depositions
(a) In general. This subsection is based on the first sentence in
Fed. R. Crim. P. 15(a). The language concerning preferral of
charges is added based on Article 49(a). The language concerning
use at Article 32 investigations is also added because depositions
may be used at such hearings.
“Exceptional” means out of the ordinary. Depositions are not
taken routinely, but only when there is a specific need under the
circumstances. As used in Fed. R. Crim. P. 15(a) “exceptional
circumstances” is generally limited to preserving the testimony of
a witness who is likely to be unavailable for trial. See 8 J. Moore,
Moore’s Federal Practice Para. 15.02[1]; 15.03 (1982 rev.ed.);
United States v. Singleton, 460 F.2d 1148 (2d Cir. 1972). A
deposition is not a discovery device under the Federal rule. 8.J.
Moore, supra Para. 15.02[1]. See also United States v. Rich, 580
F.2d 929 (9th Cir.), cert. denied, 439 U.S. 935 (1978); United
States v. Adcock, 558 F.2d. 397 (8th Cir.), cert. denied, 434 U.S.
921 (1977). The Court of Military Appeals has held that depositions
may serve as a discovery device in certain unusual circumstances.
See Analysis, subsection (c)(3)(A) infra. Consequently,
“exceptional circumstances” may be somewhat broader in courtsmartial.
Nevertheless, the primary purpose of this rule is to preserve
the testimony of unavailable witnesses for use at trial. See
Article 49; Hearings on H.R. 2498 Before a Subcomm. of the
C o m m . o n A r m e d S e r v i c e s 8 1 s t C o n g . 1 s t S e s s . 1 0 6 4 – 1 0 7 0
(1949).
The first paragraph in the discussion is based on Article 49(d)
and (f) and on paragraph 117 a of MCM, 1969 (Rev.). The
second and third paragraphs are based on Article 49(d), (e), and