Article 32 Discovery

Yes you can get discovery at a "new" Article 32 preliminary hearing--despite what many say. Talk to your military defense lawyer about this. In January 2015 Article 32 was changed to make it easier to refer charges to trial and prevent the defense interviewing under oath a complaining witness the a military sexual assault. The changes were intended to shield witnesses from being challenged and make it hard to defend against false allegations. Effective litigation of your case at the Article 32 is still necessary, perhaps more so.

Yes, we remember how the "old" 32 investigation provided robust discovery opportunities at an early stage in the case. As we remember, the purpose of the Article 32 was to be a "bulwark against baseless charges."

The Article 32 is a defense discovery mechanism. United States v. Samuels, 27 C.M.R. 280, 286 (C.M.A. 1959)(It is apparent that the Article [32 investigation] serves a twofold purpose. It operates as a discovery proceeding for the accused and stands as a bulwark against baseless charges.). See also, United States v Nichols, 23 C.M.R. 343 (C.M.A. 1957).

No longer a bulwark against baseless charges, courtesy of Congress, you can still get discovery at the "new" Article 32, it's just not as much. As a civilian military defense counsel I am constantly exploring ways to get early discovery in a case so we can make the best decisions. Pretrial discovery is one of the core competencies your military defense lawyer should have.

The President added a Rule for Courts-Martial 405A, which contains an interesting discovery requirement at the time an Article 32 preliminary hearing is appointed. Two of the three prosecution obligations are:

1. Provide a list identifying the documents accompanying the charge sheet on which the preferral decision was based.

In the past there was no requirement for the prosecution to show the defense what the person preferring charges looked at. With this new requirement you might find more information not normally given you and you have a better chance to investigate an improper preferral.

2. Provide a list identifying the documents provided to the convening authority when deciding to direct the preliminary hearing.

Here is another interesting obligation. IMHO, if the prosecutor or staff judge advocate provided a written memorandum to support preferral, the prosecution has the obligation to disclose it at the time of the Article 32. This civilian military defense counsel now routinely asks for such items, does yours?

I'm going to recite all of the new discovery provisions, we can talk about that if I am hired as your military defense counsel. Here is the most important rule.

3. A copy of evidence that is within the possession or control of counsel for the government that negates or reduces the degree of guilt of the accused for an offense charged or that might be charged.

This is an interesting addition. What I believe the President has done is import the prosecutor's constitutional Brady discovery obligations i where it had not previously existed. Here is how I look at this new requirement.

• The requirement includes any known evidence tending to diminish the credibility of witnesses, both Government and Defense, including, but not limited to, prior convictions under Mil. R. Evid. 609 and evidence of other character traits, conduct, or bias under Mil. R. Evid. 608.
• "Within the possession or control of the government" is already defined by prior case law interpreting similar language in the former R.C.M. 405. Thus, the scope of information extends beyond government counsels case file.
• Government counsel must exercise due diligence in reviewing not only the evidence in his or her possession, but also that in the possession, control, or custody of other government authorities, to determine the existence of discoverable information.
• In Cone v. Bell, 556 U.S. 449 (2009), the United States Supreme Court explained: Although the Due Process Clause as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations. Each of the Services have professional responsibility rules modeled on the ABA Model Rules. See also, ABA Formal Opinion 09-454; Joy, Peter A., and McMunigal, Kevin C., ABA Explains Prosecutor's Ethical Disclosure Duty. 24(4) CRIM. J. (2010).

For example, R.C.M. 405(f)(2)(G) allows the defense to submit to the hearing officer "matters in defense and mitigation." So that the defense may properly exercise that right, please produce the following items now--etc., etc., etc.