Articles Posted in Discovery

Here’s how we start our “discovery” requests–as “Disclosure Requests.” The defense requests disclosure of the following items in advance of any UCMJ art. 32, preliminary hearing. The request is a continuing one in accordance with UCMJ arts. 32((a)(2)(D) and46; Rules 701, 703, 405(a), (e), (1), (f)(7), (h)(3)(A), Rules for Courts-Martial, Manual for Courts-Martial, United States…

Are military law enforcement investigations complete, thorough, and unbiased? It depends. The MCIO leadership and agents will tell you they are. Our experience over the years both as military defense counsel and military prosecutors is that investigations can be incomplete, with leads not followed, evidence not retrieved, and bias in the reports submitted to prosecutors…

Over the transom comes the petition in Perez v. Colorado at the Supreme Court. Whether, and to what extent, the Sixth and Fourteenth Amendments guarantee a criminal defendant the right to discover potentially exculpatory mental health records held by a private party, notwithstanding a state privilege law to the contrary. The petition begins with, When…

Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective, By D. Kim Rossmo and Joycelyn M. Pollock. Their study suggests that 37% of wrongful convictions result from confirmation bias. Table 1: Causal Factors (≥ 10) Causal Factor Confirmation bias 37 Tunnel vision 24 High-profile crime/media attention 23 Management/supervision issues 22 Careless/incompetent…

Friend and colleague draws attention to McGee v. McFadden, a petition for a writ of certiorari to the U. S. Supreme Court. Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch,…

Here is a link to a few cases of interest that were provided me last week at the 49th VACLE Criminal Law seminar. Virginia is in the Fourth Circuit which, I believe, has a reputation as slightly conservative leaning. United States v. Abdallah, ___ F.3d___ (4th Cir. 18 December 2018). Code 45 Alumni and friend…

I have always argued for full and early discovery in court-martial cases. How can you defend someone when discovery is delayed or held-back. And how can you make a properly considered judgment on a PTA or not. “The Right to Evidence of Innocence Before Pleading Guilty,” on SSRN. Here is the abstract: George Alvarez, a…

I, currently, ask for the following as a minimal initial discovery request. Any and all adverse or negative information contained in the personnel files of any federal or state law enforcement agent who may have worked on this case in any manner. This includes but is not limited to Any “on-the-job” or field training records,…

Discovery Request 13 Aug 2012 Tripler Response to Discovery 20 Aug 2012 Supplement Discovery – Continuance Request 12 Sep 2012 Government Response to Discovery 16 Aug 2012 Gov Response to Defense Motion to Compel Discovery

ACCA is back online to the public. On 27 March the court decided United States v. Ellis, a case in which: Appellant asserts that the government’s failure to provide a copy of the accident report was a disclosure violation entitling him to relief on appeal. Appellant assigns both constitutional and non-constitutional error. We address both.…