Articles Posted in Discovery

In the world of military justice it’s the small things that seem most encouraging at times. So . . . In my standard Article 32, UCMJ, production request (based on R.C.M. 405(f)(9)(10) primarily) or trial discovery demand one of the provisions is this: 3. Declination to Produce or Disclose. a. If any information responsive to…

ACCA has issued an opinion in United States v. Trigueros, 68 M.J. ___ (A. Ct. Crim. App. 2010). [Post updated to address a CAAFLog point, to add some links, and try to fix some formatting.] This case involves the common problem of discovery of a victims mental health records. There are two troubling aspects to…

R.C.M. 701(b)(2) sets out the requirement for defense disclosure if there will be an innocent ingestion defense. Assuming the accused is the only witness who may testify to an innocent ingestion, must the defense disclose that under the rule. My answer is no. To force a disclosure prior to testimony violates the accused’s right to…

I came across this item reading some history on the current court-martial. DNA has gained a prominent place in the prosecution and defense of criminal cases. But this piece illustrates that the DNA may only be as good as the testing done and the people doing the testing. The Army began its prosecution in 2006…

A case pending at the U.S. Supreme Court was recently settled out of court, and the case withdrawn from consideration. It appears that there has been a settlement of $12M, for prosecutorial misconduct. “This means prosecutors who step outside their traditional role and who act as investigators (in criminal cases) can still be subject to…

Discovery obligations apply to court-martial motions practice, for example when there is to be a suppression hearing. The government has a mandatory duty to disclose evidence in its possession that is favorable to the defense, “either because it was exculpatory or of impeachment value . . . .” . The government breaches the duty established…

Why am I not surprised by Issue III. See one of my earlier blogs — The Prosecutor’s Gamble. I’ve blogged several times about trial counsel “suppression” of evidence or information favorable to the defense, despite frequent public relations statements and appellate cases lauding the more open discovery to which a court-martial accused is entitled to…

United States v. Mott, once again, explores the prosecution obligation to disclose favorable evidence to the defense at court-martial. In this case, the prosecutions own expert agreed with the defense theory as to the accused’s mental status. None of this was disclosed to the defense. In the instant case, this first step of analysis need…

Need to find a current address for a witness in a case? Boxbreaker, Slang for a form used by the United States Post Office. Its called Request for Boxholder Information for Service of Legal Process. Take the form to the nearest Post Office to your targets last know address and the U.S Postmaster will provide…

From time to time I try to get a judge to accept and instruct on an adverse inference. Or at least argue it. Generally adverse inferences come up when evidence is “lost” or there has been a refusal of discovery. Basically the argument goes that if the evidence isn’t provided for a reason within the…