Articles Posted in Discovery

Here is a piece about a former Texas prosecutor who has been arrested and is being prosecuted for Brady violations.

The New York Times Sunday Review has an interesting piece about Brady, and the new practices being followed in North Carolina and Ohio to put in place a robust open file policy.

Many years ago we sought to improve our counsel performance at NLSO Norfolk with developing checklists, protocols, and a PQS system. It seemed to work. Now here is an article, Darryl K. Brown, Defense Counsel, Trial Judges, and Evidence Protocols, Brown, Darryl K., Defense Counsel, Trial Judges, and Evidence Protocols, Texas Tech Law Review, Vol.…

The new Mil. R. Evid. may not apply to any offense committed prior to it’s effective date? Is there an argument that application to an offense prior to the effective date violates the ex-post facto clause. See Calder v. Bull, 100 U.S. 1 (1798). Article I, section 9 of the United States Constitution states in…

Well, I use Wikipedia for research. But, I use it “in some limited situations . . . for getting a sense of a term’s common usage.” Fire Insurance Exchange v. Oltman & Blackner, Case No. 201004262-CA, 2012 UT App 230 (Utah App. 2012)(discussing the uses and reliability of Wikipedia as a source of information). See…

I have for some time been challenging the limitation on the defense opportunity to get depositions. The usual response is that a deposition isn’t for “good cause” because, according to the Discussion under R.C.M. 704, the witness “will be available at trial.” I argue that R.C.M. 704 and the discussion are not procedure authorized by…

I posted the other day about discovery, the appellate courts are seeing a number of cases about discovery issues. ACCA hears oral argument in the Behenna case which presents the question of trial counsel’s failure to comply with Brady/Bagley/Giglio/Article 46 in the context of a motion for mistrial and a motion for new trial. As…

I have always taken the view that disclosure of bad information about witnesses is a self-executing duty on trial counsel. I make this point because trial counsel often refuse to look into the background of it’s witnesses until the MJ orders that. The military judge properly concluded the government “had an obligation to provide that…

AFCCA issued an opinion in United States v. Rettinghouse today. It was an Article 62, UCMJ, appeal, with some teaching points. I note this issue arose because of – yes – trial counsel discovery violations, and then a refusal to accede to the judge’s remedy of producing witnesses for the defense. See a post here.…

Now, don’t get discouraged when your being encouraged doesn’t work out. Remember a primary court-room rule: never let them see they’ve hurt you. Not too long ago Judge Vowell was chief in the Army’s First Judicial Circuit. One of her rules of court was that both counsel must comply with Federal Rule of Civil Procedure…