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 (2019),; Mil. R. Evid. 304(d)(1), 404(b), 705; United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999); United States v. Briggs, 48 M.J. 143, 144 (C.A.A.F. 1999); and Brady v. Maryland, 373 U.S. 83 (1963). See also, Uniform Rules of Practice before Air Force Courts-Martial, dated 1 October 2020; Rules 3.2 & 3.3; AFI 51‑201; AFGM2020-02, Administration of Military Justice, dated 5 October 2020, paragraph 5.12; AFI 51-110, Professional Responsibility Program, dated 11 December 2018, Attachment 2 (Air Force Rules of Professional Conduct); Rules 3.3, 3.4, 3.8 & 4.2 and Attachment 7 (Air Force Standards for Criminal Justice), Chapter 5. These items are relevant under UCMJ art. 32(a)(2)(D) and which calls upon the preliminary hearing officer to make a referral recommendation. NOTE: In the event charges are referred to trial, this disclosure request immediately becomes the FIRST defense discovery request.

Interestingly, in Cone v. Bell, 556 U.S. 449 (2009) the Supreme Court court suggests that the duty to provide Brayd[-plus] disclosures may be broader under a prosecutors ethical obligations. The military prosecutor’s ethical rules are:

• Rule 3.8(d), Air Force Instruction 51-110, Professional Responsibility Program.
• Rule 3.8.d, Army Regulation 27-26, Rules of Professional Conduct.
• U. S. Coast Guard, Legal Professional Responsibility Program, COMDTINST M5800.1.
• Rule 3.8.a(4), Judge Advocate General Instruction 5803.1, Professional Conduct of Attorney’s, applicable to both Navy and Marine Corps judge advocates.

We think an early Request is especially important in speedy trial situations–the client is in pretrial confinement or has been placed on restriction. The point is to make the prosecution either respond (thus showing some forward movement) or do nothing, in which case you may have an argument for a lack of reasonable diligence if the discovery comes much later. Remember,

“[O]nce an appellant is placed in pretrial confinement the Government is required to exercise “reasonable diligence” in bringing the accused to trial.” United States v. Danylo, 73 M.J. 183, 186 (C.A.A.F. 2014) citing United States v. Kossman, 38 M.J. 258, 262 (C.M.A. 1993) (internal quotation marks omitted).

Keep in mind that “The prosecution is deemed to have knowledge of information that is readily available to it. Kyles, 514 U.S. at 437; Williams v. Whitley, 940 F.2d 132, 133 (5th Cir. 1991); see Smith, 50 F.3d at 831. See generally United States v. Combs, 267 F.3d 1167, 1172-75 (10th Cir. 2001). Knowledge by any member of the prosecutor’s office is, and must be, imputed to any individual prosecutor responding to this demand, and because of the unusual role of a convening authority and staff judge advocate in the prosecutorial process this would include the convening authority and the SJA. Giglio v. United States, 405 U.S. 150, 154 (1972); Martinez v. Wainwright, 621 F.2d 184, 186-87 (5^th Cir. 1980). Additionally, and along the same line, the knowledge of governmental agencies connected with the investigation at bar is also imputed to any prosecutor responding to this demand. Gibbs v. Johnson, 154 F.3d 253, 256 (5th Cir. 1998); United States v. Avellino, 136 F.3d 249, 255 (2nd Cir. 1998); Fero v. Kirby, 39 F.3d 1462, 1472 n. 12 (10th Cir. 1994) cert. denied 515 U.S. 1122 (1995). Indeed, the prosecution is the only government agency with a Kyles duty to the accused. Mowbray v. Cameron County, 274 F.3d 269, 277 (5th Cir. 2001).”

According to the appellate decisions, the special victim counsel (SVC) and the trial counsel (TC) tried to discourage investigators from interviewing a witness. It worked for a while during which time it appears the witness had a less clear memory of events. The TC thought the witness might have “exculpatory” information which they are obligated to disclose to the defense and which might be helpful to the accused.

The Air Force Court of Criminal Appeals (AFCCA) decision has an extensive review of the facts and circumstances of what happened. Ultimately, the Air Force court and CAAF decided while it was wrong, there was no prejudice against the accused. This case represents how a prepared and aggressive military defense lawyer can help protect you and the record. Sadly, this could happen to you. It is not clear if the SVCs and TCs will learn anything from this case to study their practices and comply with the law and ethics rules. We shall see. The CAAF has these words,

Turning to the merits, we agree that some of the facts and circumstances that Appellant has identified would harm the public’s perception of the military justice system. Indeed, matters (1) through (5) generally concern a point that the Government itself concedes in its brief, namely, that the efforts of trial counsel and SVC “to discourage law enforcement agents from interviewing [the victim’s husband]—an outcry witness—were unwise and inadvisable” because neither side “benefits when [AF]OSI fails to fully investigate a case.” We also specifically agree that the trial counsel, as a judge advocate, should have known better than to discourage an AFOSI investigation into potentially exculpatory evidence.

“Unwise[?]” Really? If it were you the accused doing that, I bet there would be an obstruction or attempted obstruction of justice on your charge sheet.

“[S]hould have known better[?]” If it were you the accused, doing that, the prosecutor would argue that that isn’t a defense.

If you are an accused, how would you feel about this? How about your spouse, your mother, your family, your friends, your neighbors, or your town? Would people believe you will get a fair trial in the military at a court-martial under the UCMJ?

The prosecution was saved in this case because, according to CAAF, the SVC and TC were removed from any further participation in the case, there was very thorough litigation at trial, and there was no intent to prejudice the accused by this “regrettable error,” and, fortunately, it turns out that there was, in the court’s view, no actual prejudice. Of course, SVCs and TCs are not going to concede that your regrettable error should not be punished. They will go all out to have you found guilty.

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 a criminal defendant seeks potentially exculpatory information that is protected by the psychotherapist-patient privilege, a court must decide which prevails: the defendant’s interest in accessing that material, or the government’s policy interest embodied in the privilege. Both sides of the ledger are important: On the defendant’s side, his constitutional rights to due process, compulsory process, and confrontation may all be compromised if he is denied access to the information. On the government’s side, disclosing otherwise privileged information could compromise important public objectives, including “the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.” Jaffee v. Redmond, 518 U.S. 1, 11 (1996). Where the evidence is in the hands of the State and the privilege law at issue does not “absolute[ly] . . . shield [the] files from all eyes,” this Court has held that a criminal defendant’s constitutional right to due process trumps a privilege. Pennsylvania v. Ritchie, 480 U.S. 39, 57–58 (1987).

How many times have we seen the MCIO investigators have some access, but the trial counsel refuses to provide citing Mil. R. Evid. 513?

Let’s see if the Supremes grant. Follow the case here at SCOTUSblog.

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 investigation 20 Improper interrogations 20 Rush to judgment 19 Flawed forensics 15 Problematic witness/informant 14 Evidence analysis/logic failure 12 Interagency conflict/DA interference 10

Welcome to military sexual assault investigations and prosecutions.

confirmation bias, in particular, held a pivotal position in the causal structure of wrongful convictions. Faulty assumptions, probability errors, and groupthink often played supporting roles. Cognitive bias affects not just investigators, but also prosecutors, defense lawyers, scientists, military leaders, politicians-indeed, everyone.

“Believe the victim” and victim-centric interviews and investigations require the application of cognitive/ confirmation bias–IMHO deliberately. A presumption of guilt follows which reinforces CB.

Confirmation bias is a type of selective thinking. Once a hypothesis has been formed, our inclination is to confirm rather than refute it. We tend to look for supporting information, interpret ambiguous information as consistent with our beliefs, and minimize any inconsistent evidence. Types of confirmation bias include: (1) the biased search for evidence; (2) the biased interpretation of information; and (3) a biased memory (selective recall). Confirmation bias can cause a detective to interpret information in a biased manner-evidence that supports the investigative theory is taken at face value, while contradicting evidence is skeptically scrutinized. Other manifestations of confirmation bias include the failure to search for evidence that might prove a suspect’s alibi, not utilizing such evidence if found, and refusing to consider alternative hypotheses.

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, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

More information, including the petition at SCOTUSBlog here.

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 Jim Wynn is one of the panel members. This case involves two issues: invocation of the right to silence and the all-important Brady issue.

Invocation.

To invoke the right to remain silent or the right to counsel and thereby cut off questioning, the suspect’s invocation must be “unambiguous.” Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010) (request to remain silent); Davis v. United States, 512 U.S. 452, 459 (1994) (request for counsel). An invocation is unambiguous when a “reasonable police officer under the circumstances would have understood” the suspect intended to invoke his Fifth Amendment rights. Tice v. Johnson, 647 F.3d 87, 107 (4th Cir. 2011); Davis, 512 U.S. at 459. Accordingly, “a suspect need not speak with the discrimination of an Oxford don” to invoke his Fifth Amendment rights. Davis, 512 U.S. at 459; see also Emspak v. United States, 349 U.S. 190, 194 (1955) (explaining that “no ritualistic formula or talismanic phrase is essential in order to invoke” Fifth Amendment rights). This objective inquiry “‘avoids difficulties of proof and . . . provide[s] guidance to officers’ on how to proceed in the face of ambiguity.” Thompkins, 560 U.S. at 381-82 (citing Davis, 512 U.S. at 458-59). In its suppression memorandum, the district court found that “Defendant interrupted Agent [Lewis’s Miranda warnings] and stated that he ‘wasn’t going to say anything at all.'” Abdallah, 196 F.Supp.3d at 600 (emphasis added). Numerous courts—including this Court—have held that materially indistinguishable statements amount to an unambiguous invocation of Fifth Amendment rights. For example, in Tice v. Johnson, this Court took the position, in a habeas case, that when a defendant told interrogators, “I have decided not to say any more,” he unambiguously invoked his right to remain silent. Tice, 647 F.3d at 107 (“I have decided not to say any more.”); see also Jones v. Harrington, 829 F.3d 1128, 1140 (9th Cir. 2016) (“I don’t want to talk no more”); United States v. McCarthy, 382 F. App’x 789, 791-92 (10th Cir. 2010) (“I don’t want nothing to say to anyone.”); McGraw v. Holland, 257 F.3d 513, 515, 518 (6th Cir. 2001) (“I don’t wanna talk about it.”); Arnold v. Runnels, 421 F.3d 859, 865 (9th Cir. 2005) (“[T]he Supreme Court [never] has required that a suspect seeking to invoke his right to silence to provide any statement more explicit or more technically-worded than ‘I have nothing to say.'”); United States v. Reid, 211 F.Supp.2d 366, 372 (D. Mass. 2002) (cited favorably in Tice, 647 F.3d at 107) (“I have nothing else to say.”).

Brady.

Under Brady v. Maryland, Defendants are entitled to the disclosure of evidence that is “both favorable to the accused and material to guilt or punishment.” Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987); see also Brady v. Maryland, 373 U.S. at 87. Evidence is favorable “not only when it tends substantively to negate guilt but also when it tends to impeach the credibility of a key witness for the prosecution.” Love v. Johnson, 57 F.3d 1305, 1313 (4th Cir. 1995). Evidence is material if there is a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995). In a typical Brady case, a defendant has discovered exculpatory evidence after trial, which the defendant alleges the government unconstitutionally suppressed. King, 628 F.3d at 702. In these cases, the defendant establishes a Brady violation proving the materiality and favorability of the withheld evidence. Id. (citing Kyles, 514 U.S. at 433). But in some cases, like Defendant’s case, the government “may possess potential Brady material that it deems privileged or that is otherwise confidential.” United States v. Trevino, 89 F.3d 187, 189 (4th Cir. 1996). Because the defendant does not have access to the confidential material, the defendant “cannot possibly know, but may only suspect, that particular information exists which meets [Brady’s] requirements.” Love, 57 F.3d at 1313. In such cases, “a defendant need only make ‘some plausible showing’ that exculpatory material exists.” King, 628 F.3d at 703. To make this showing, the defendant must “identify the requested confidential material with some degree of specificity.” Id. Specificity ensures that the government’s Brady obligations do not become “unduly burdensome,” Monroe v. Angelone, 323 F.3d 286, 316 (4th Cir. 2003), and that the defendant does not conscript the court for “a groundless fishing expedition,” King, 628 F.3d at 703. Once the defendant identifies specific evidence that could plausibly be favorable to his defense, the defendant “does not become entitled to direct access to the information to determine for himself its materiality and favorability.” Love, 57 F.3d at 1313. Rather, the defendant is “entitled, in order to secure the basic right, to have the information he has sufficiently identified submitted to the trial court for in camera inspection and a properly reviewable judicial determination made whether any portions meet the [Brady] requirements for compulsory disclosure.” Id. Because the defendant is entitled to in camera review, the district court cannot solely “rely on the government’s good faith” as a basis to avoid review. King, 628 F.3d at 702.

*Note, Davis was on appeal from CAAF.

United States v. Burfoot, 899 F.3d 329 (4th Cir. 2018). Duplicitous pleadings.

United States v. Bell, 901 F.3d 455 (4th Cir. 2018).

The “informer’s privilege,” which protects a confidential informant’s identity, “is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information [about crimes]” to law enforcement. Roviaro v. United States , 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). In Roviaro , the Court declined to adopt a bright-line rule for determining when a defendant may pierce the privilege, stating that the issue instead calls for case-by-case “balancing [of] the public interest in protecting the flow of information [to law enforcement] against the individual’s right to prepare his defense.” Id. at 62, 77 S.Ct. 623. Whether disclosure should be ordered therefore depends “on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Id. And in applying Roviaro , we have held more particularly that “the government is privileged to withhold the identity of [an] informant when [he] was a ‘mere tipster,’ or was used only for obtaining a search warrant, but that failing todisclose the informant’s identity more likely amounts to error when the informant was an active participant in the events leading to the arrest of the accused.” United States v. Gray, 47 F.3d 1359, 1365 (4th Cir. 1995) (emphasis added) (citations omitted).

“The Right to Evidence of Innocence Before Pleading Guilty,” on SSRN. Here is the abstract:

George Alvarez, a ninth grade, special education student, pleaded guilty to assault of a peace officer in Texas. Four years into his sentence, Alvarez learned that the State had suppressed a video of the incident that proved his actual innocence. Alvarez claimed that the city violated the Brady doctrine by failing to disclose material exculpatory evidence. In rejecting his claim, the Fifth Circuit concluded that “case law from the Supreme Court, this circuit, and other circuits does not affirmatively establish that a constitutional violation occurs when Brady material is not shared during the plea bargaining process.” Given that 95% of convictions are secured through guilty pleas, such an interpretation of Brady means that few defendants are entitled to evidence of their innocence before being convicted. This article argues, however, that these courts are ignoring a forgotten Supreme Court opinion that was central to the creation of the Brady doctrine. In its opinion in Wilde v. Wyoming, the Court recognized that the suppression of favorable substantive evidence before a defendant’s guilty plea can violate the Due Process Clause. Later, the Court stated that its Brady opinion was merely an extension of its prior opinions such as Wilde. And yet, while each of the other opinions that formed the foundation for the Brady doctrine has had a lasting legacy, the Wilde opinion has been lost to time despite never being repudiated. This article calls for a resurrection of Wilde and the recognition of a right to evidence of innocence before pleading guilty.

This is from Prof. Colin Miller.

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, training test score results, evidence of credentials having ever been suspended or revoked. The defense does not agree that United States v. Henthorn sets the appropriate standard of production on this issue. In fact some years ago, counsel had a case where the NCIS gave a Henthorn disclosure to the prosecutor that turned out to be substantially and materially false—which surprised the trial counsel at trial.

We can expand the initial request as more information comes to light. I encourage counsel to review United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004).

In my view, the MCIOs (and trial counsel) do not comply with the law–let’s use Roberts as an example.

During an interview with defense counsel prior to trial, the lead AFOSI agent, SA M, revealed that he had previously been disciplined, but declined to provide any details. Defense counsel subsequently requested that the Government provide the defense with copies of all disciplinary actions taken against SA M. A Government attorney-adviser at AFOSI replied in a memorandum that he had reviewed records including those maintained on SA M, and found no information that had to be disclosed. The attorney-adviser further stated that his review of the SA M investigation “did not reveal that SA [M] lied or falsely testified about the matter.”

Huuum. Well, the MJ did the right thing and conducted an in-camera review, but denied the discovery–wrong.

The military judge reviewed the records concerning the investigation of SA M in camera. The information provided to the military judge revealed that approximately three years before Roberts’ court-martial, while SA M was at a training course, he had sexual intercourse with another married AFOSI member. The AFOSI investigative report of that incident contains a summary of an interview with SA M on February 13, 1997, in which he reportedly was given a rights advisement, and initially stated, “This is bullshit. There is no improper relationship,” before he stopped talking. SA M was subsequently given testimonial immunity and admitted to the intercourse with the married AFOSI member in a sworn statement. He was not criminally charged, but he did receive an Unfavorable Information File.

I ask you, how many of your clients have been prosecuted for this type of exchange during an interrogation? But that’s OK if an OSI agent. Don’t you wish your client could get the same break? I am continually surprised by the crimes MCIO agents commit and yet remain in the military and remain with the MCIO.

My suggestion is that Roberts controls and not Henthorn. Unlike federal courts, we have a broader discovery right despite the attempts of Congress, IMHO, to take away discovery mechanisms.

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. In so doing, we address when a law enforcement investigation is separate from the investigation into the charged offense under Brady v. United States, 397 U.S. 742 (1970). We also discuss what constitutes a “specific request” for disclosure under Rule for Courts-Martial [R.C.M.] 701(a), triggering a heightened standard of review.

Of note, this is another case in which the accused had information relevant to the case, did not disclose it to his counsel until after trial, and now it’s part of the appeal. Slip op. at 5. “The State has no obligation to point the defense toward potentially exculpatory evidence when that evidence is either in the possession of the defendant or can be discovered by exercising due diligence.” Slip op. at 8 (citations omitted).

The government violates Brady when they withhold favorable and material information from the defense. United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2012). Evidence is favorable if, among other things, it impeaches the government’s case. Id. at 238. “Evidence is material when ‘there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.’” Id. (quoting Smith v. Cain, 565 U.S. 73, 75 (2012)).

The court notes that there is “no such thing as a harmless Brady violation.” Slip op. at 6.

This is an excellent case discussing the interplay and burdens when looking for and litigating Brady information as opposed to a specific request for information under Williams. The court accepts that “Without a doubt, the regulatory and statutory discovery rights of an accused at court-martial are greater than the minimum prescribed by the constitution.” Slip op. at 8.

Bottom line, the court finds there are three tests for a discovery violation.

At the apex is the Hart test, which is applicable when the defense has made a specific request for disclosure. To provide relief to appellant we must first find that the government was required to disclose the information under the Constitution, the UCMJ, or the Manual for Courts-Martial. If the government fails to disclose the information, the appellant is entitled to relief unless the government can show that the effect of non-disclosure is harmless beyond a reasonable doubt. If the non-disclosure “might have” effected the verdict, the government’s non-disclosure will not be harmless beyond a reasonable doubt. Receiving lesser appellate scrutiny are alleged Brady violations. Unlike a Hart violation, to find a Brady violation we must first find that the information in question is material to appellant’s case. We will provide relief to an appellant upon finding a reasonable probability that the verdict would have been different had the government provided the information in question. Finally, if the government violates any other disclosure requirement we will test for material prejudice to a substantial right in accordance with Article 59(a), UCMJ. Such an example would be if the government were to fail in its disclosure obligation under R.C.M. 701(a)(1)(A).

Slip op. at 11 (citations omitted).

United States v. Pham from the NMCCA teaches us that we need to be precise in what we ask for when we are seeking the CW’s phone.

Here, the CW “voluntarily provided her cell phone, a Samsung Galaxy S-IV, to NCIS for forensic examination. NCIS investigators performed a logical extraction of the phone and returned it to PI the same day. In response to a January 2016 defense discovery request for a copy of the physical extraction” the defense got “a logical extraction performed 11 months earlier.”

A defense expert consultant confirmed this disclosure. So the defense moved to compel a physical extraction of the CW’s “Samsung Galaxy S-IV” cell phone. “The defense asserted that the report derived from the logical extraction did not include deleted data, hidden data, or mobile applications data.”

The NCIS expert explained that he could not perform a physical extraction because a “Galaxy S-IV” was not a “rooted” phone. The evidence provided in support of the defense expert conclusion that a physical extraction could be performed was a “screenshot,” of an apparently earlier version of the phone, a “Galaxy SIII, Alfa,” and the screenshot indicated it was a “rooted” phone. Based upon this limited and contradictory evidence, we agree with the military judge that the appellant failed to sustain his burden of persuasion. Furthermore, there was no evidence submitted at trial or to date that in February 2015, when NCIS had control of PI’s cell phone, the technology existed to conduct a physical extraction of a Galaxy S-IV cell phone.

Cellebrite can now unlock iPhone 6 and 6+, also extract data from array of popular apps, according to cyberscoop.com.

What Happens When You Press that Button? — according to Cellbrite.

[V]iolations of Brady are the most recurring and pervasive of all constitutional procedural violations, with disastrous consequences: innocent people are wrongfully convicted; the reputation of U.S. prosecutors suffer; and the absence of meaningful legal and ethical enforcement and accountability has a corrosive effect on the public’s perception of a justice system that often appears to be arbitrary, unjust, and simply unreliable.

Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 Case W. Res. L. Rev. 13, 15 (2007).

Let me start with some basics and two cases that prosecutors and defense lawyers know (or should know) well. In Brady v. Maryland, the Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Evidence is “material” if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Relatedly, in Giglio v. United States, the Supreme Court held that prosecutors must disclose to the defense any “understanding or agreement as to a future prosecution” that the government has made with a material witness. That notion has been expanded to requiring the production of impeachment information of a material character. Specifically, this is thought of as information that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.

Yes, we know this to be the law, the issue is whether it is practiced. I would add that a discovery request, which I call a Kyles Request (think Kyles v. Whitley, 514 U.S. 419 (1885)), should be part of your practice. We certainly have some well-documented instances of prosecutor error in military cases. Recently, former Chief Judge Effron made a recommendation through the Military Justice Review Group to adopt a military prosecutors manual in the style of the U. S. Attorney’s Manual.

SJ notes:

• In the District of Nebraska, and as suggested by Judge Kozinski, [they] already issue mandatory Brady/Giglio disclosure orders, the violation of which would justify discipline. More specifically, federal judges should use as a disciplinary gauge, and require federal prosecutors to scrupulously comply with, part 9-5.001 (Policy Regarding Disclosure of Exculpatory and Impeachment Information) and part 9-5.100 (“Giglio Policy”) of the U. S. Attorneys’ Manual. That Manual is a full and fair exposition of the law. Indeed, it explicitly “errs” on the side of disclosure if there is a question.[v] The Manual would serve as an excellent policy model for state prosecutors to adopt.

They may err because:

“The prudent prosecutor will resolve doubtful questions in favor of disclosure.” . . . Such disclosure will serve to justify the trust in the prosecutor as “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

Kyles, 514 U.S. at 439 (quoting United States v. Agurs, 427 U.S. 97, 108 (1976); Berger v. United States, 295 U.S. 78, 88 (1935)).

• Federal judges should not hesitate to employ their independent[vi] disciplinary authority to reprimand, suspend, or disbar prosecutors who violate our orders and the requirements of the Manual. See, e.g., NEGenR 1.7(b) & NEGenR 1.8(g). These judges should not wait for or depend on state disciplinary authorities to act. Nor should they wait for DOJ’s Office of Professional Responsibility to awake. In short, we federal judges are not and should not serve as potted plants, particularly when it comes to Brady/Giglio violators.[vii]

D. Whenever the Commonwealth intends to introduce expert opinion testimony at trial, the attorney for the Commonwealth shall notify in writing the accused of the Commonwealth’s intent to present such testimony not later than 14 days before trial, or as otherwise ordered by the court. The notice shall include the witness’s name and contact information, a summary of the witness’s qualifications, the substance of the facts and opinions to which the witness is expected to testify, a summary of the grounds for each opinion, and copies of written reports, if any, prepared by the witness.

There is a reciprocal requirement for the defense. The new VA rule is consistent with federal practice under Fed. R. Crim. Pro 16(a)(G), and with then Judge D. Vowell (Army) in her court-martial scheduling orders.

J. Each party shall provide to the opposing party a written list of names and addresses, if available, of all witnesses expected to testify at trial. Disclosure of rebuttal and surrebuttal witnesses is not required under this subsection. The Commonwealth shall provide a list no later than seven days before trial; the accused shall provide a list no later than three days before trial. Upon motion of either party, the court may modify the requirements of this subsection for good cause shown.

In military cases, this can be an issue where the list is not required until three days before trial. Anyone received a government witness list on Friday, before the Monday trial, and had to deal with a lengthy list of people not necessarily identified through discovery or investigative reports–huuuum? And then have to figure out if you need additional witnesses or investigation of your own? And then tried to get a delay to deal with it—huuum?

K. Upon indictment, waiver of indictment, or return of information, or prior to entry of a guilty plea or plea of nolo contendere, whichever first occurs, the attorney for the Commonwealth shall disclose to the accused all information in its possession, custody, or control that tends to negate the guilt of the accused, mitigate the offense charged, or reduce punishment, subject to modification or limitation by the court. Information that tends to impeach the Commonwealth’s witnesses shall be produced no later than seven days prior to the date scheduled for trial. The duty to disclose under this subsection shall not require any request, demand, or notice by the accused and shall be continuing in nature, as otherwise required by law.

The obligation to provide Brady material is an ongoing issue and has been addressed by some federal courts regarding IAC claims; it allows an accused to make an informed decision. I’m not sure it’s a big issue in the military because of how PTA’s are timed or negotiated, but it would be a welcome reform.

Here’s the problem in a nutshell: So much at trial can turn on the testimony of a police officer. For a criminal defendant, life and liberty may depend on the ability to impeach the officer’s testimony. The federal constitution, as interpreted by Brady v. Maryland and its progeny, requires prosecutors to disclose to defendants any favorable, material evidence known to the prosecution team, including evidence relating to a witness’s credibility. Much impeachment evidence can be found in a police officer’s personnel file. But in many jurisdictions, a thicket of state laws, local policies, and bare-knuckle political pressure prevents access to the material in these personnel files, despite the federal constitutional requirement to disclose. In the name of protecting police privacy, criminal defendants are denied their due process rights to a fair trial.

Here’s what I ask for in my discovery requests.

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, training test score results, evidence of credentials having ever been suspended or revoked, and investigations regardless of result into allegations of malpractice. The defense does not agree that United States v. Henthorn sets the appropriate standard of production on this issue, in military cases. In fact some years ago I had a case where the NCIS gave a Henthorn disclosure to the prosecutor which turned out to be substantially and materially false.

A senior judge has criticised a police detective and the Crown Prosecution Service for their handling of an accusation of gang rape after the case against four young men collapsed just as their trial was due to begin. Judge Jamie Tabor QC said DC Ben Lewis of Gloucestershire police had got too close to the complainant and did not understand his job properly. Tabor said the officer and the CPS had to bear responsibility for not disclosing “game-changing” material to the defence teams of the men who were due to stand trial. The trial had been due to begin at Gloucester crown court but at the last moment the prosecution offered no evidence and the four defendants were cleared. After the case collapsed, the defendants’ legal team accused Lewis in court of “cherry picking” evidence supportive of the prosecution’s case and “airbrushing out of the picture” anything that could have helped the men. It also emerged as the trial was due to begin that police failed to disclose that the complainant was a witness to an alleged rape on an army base in October 2014 and that there were inconsistencies in her evidence. The alleged rapist, a soldier, was later cleared. Tabor, the recorder of Gloucester, said Lewis had a “limited grasp of responsibilities” as disclosure officer – the person responsible for handing over relevant information to the defence.

You will have read or heard me talk about confirmation bias at work among MCIO’s and Trial Counsel. I heard today of a military case where the MCIO was actually having an affair with the complaining witness at the time of the investigation and trial, and allegedly the prosecution initially failed to disclose this to the defense.

Mr. Becker takes on the amount of damage done to military justice and the truth-seeking process because of the changes to Article 32 proceedings.

Amici are former federal prosecutors and senior Justice Department and government officials who have dedicated many years of service to the criminal justice system and have a continuing interest in preserving the fair and effective administration of criminal trials.2 As such, amici understand the duty of prosecutors “to seek justice within the bounds of the law, not merely to convict.” ABA Standards for Criminal Justice: Prosecution and Defense Function, Standard 3-1.2(c) (4th ed. 2015). Amici write to emphasize that fundamental to vindicating this responsibility is making timely disclosure of all material and favorable evidence to the defense. As the Supreme Court recognized in Brady v. Maryland, the failure to disclose favorable evidence “violates due process … irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963); see also United States v. Nixon, 418 U.S. 683, 709 (1974) (“The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.”). While this affirmative duty is above and beyond the demands of the “pure adversary model,” United States v. Bagley, 473 U.S. 667, 675 n.6 (1985), it is grounded in an understanding of the prosecutor’s “‘special role … in the search for truth in criminal trial,’” Banks v. Dretke, 540 U.S. 668, 696 (2004). From their years of combined experience, amici appreciate the challenging judgment calls prosecutors face on a daily basis, but they also deeply believe that fundamental fairness and public confidence in our justice system relies on prosecutors taking their disclosure obligations seriously and fulfilling this duty capaciously.

So begins the amicus pleading in support of the petitioner in Georgiou v. United States.

All Services except the Air Force and Coast Guard routinely recorded the audio of the hearing. That audio could then be transcribed into a verbatim transcript. The benefit to the government was that in the event a witness became unavailable at trial, there existed a “deposition,” or at least something akin to a deposition which could be used in evidence at trial in the extreme case.

The Article 32 testimony as substitute for the actual appearance of the witness is guided by United States v. Norris, 16 U.S.C.M.A. 574, 37 C.M.R. 194 (to be admissible, must be verbatim); United States v. Burrow, 16 U.S.C.M.A. 94, 36 C.M.R. 250; Pointer v. Texas, 380 U.S. 400 (1965)(testimony might be received only if “taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” Id., at page 407.

This was a reason I always wondered why the Air Force and Coast Guard didn’t record the 32. Although the cynical thought was that it prevented the defense from having a record to use for impeachment.

But here is the question for the current Article 32 pretrial hearing. Can the hearing be properly used as a substitute for a deposition, and testimony used in evidence should a witness become unavailable for trial. I think the answer should be NO. Largely I think this is because of the intent to avoid discovery and an appropriate amount of cross-examination of witnesses who did attend. There is now almost no discovery and the ability to cross-examine witnesses who do appear is more limited. Thus there is a strong constitutional argument that trying to use a transcript of Article 32 testimony violates the Sixth Amendment Confrontation Clause.

While the likelihood of needing prior testimony may not be a frequent event, there may come another day where this collateral impact of changing the Article 32 may come back to haunt. On balance the intent to adversely affect the ability of the defense to prepare for and defend against a charge has been accomplished-but at a cost to a potential prosecution.

Here is a link from Prof. Berman about

The investigative journalism website ProPublica has now published another installment in its notable series of pieces concerning the problems of prosecutorial misconduct. The series is titled “Out of Order: When Prosecutors Cross the Line,” and here are links to all the pieces from the beginning: Who Polices Prosecutors Who Abuse Their Authority? Usually Nobody Lasting Damage: A Rogue Prosecutor’s Final Case A Simple Fix: Should New York Compel Judges to Report Problem Prosecutors? Reversal of Fortune: A Prosecutor on Trial A Prosecutor, a Wrongful Conviction and a Question of Justice