Discovery by the defense

Does the defense in a court-martial under the Uniform Code of Military Justice (UCMJ) have to give discovery about your defense to the prosecution? Yes, sometimes.

There are several rules set out in the Manual for Courts-Martial that your military lawyer or civilian defense counsel knows about. The rules are contained in Rule 701.

Special defenses.

Rule 701(b)(2) is reasonably straightforward and requires notice “before trial” of

• An alibi defense. Basically, you were somewhere else than at the place of the alleged offense so you couldn’t be the person who committed the offense.
• A lack of mental responsibility (LMR) defense. Generally, this means that at the time of the alleged offense you had
  • “a severe mental disease or defect, and
  • was unable to appreciate the nature and quality or the wrongfulness of your acts.
  • An innocent ingestion defense. Generally, this comes up most frequently when someone tampers with a drink or food. Your military defense counsel will be able to discuss the ways in which you unknowingly or unintentionally ended up with drugs in your body.
  • The notice requires information about the time, place, and witnesses to the defense. This includes expert witnesses who will testify about an LMR at the time of the offense or at trial.
    • It is my view as a military defense counsel that you do not have to give everything to the prosecution at this stage, but there are several other rules that later will require you to give more information such as any witness statements you have.

Evidence on the merits.

If, repeat if, your military defense lawyer has submitted a discovery request to the prosecution then Rule 701(b)(3) requires you to disclose evidence you intend to use the item in the defense case-in-chief at trial. I take a narrow view of this rule. Please note that all competent military defense counsel is usually going to submit a detailed discovery request on your behalf. I have in a couple of cases not submitted a written discovery request purposefully so Rule 701(b)(3) doesn’t apply. This is tricky because you are relying on the prosecutor to provide Brady material and discovery that is required of them.

If you have the evidence in your possession, custody, or control, and

You will present the evidence through a defense witness, a certified copy of a document, or judicial notice, you must provide it before trial on the merits, and the prosecution asks for it. If the prosecutor doesn’t ask you don’t have to give. I will say, however, that it is best to give anyway. If you don’t the prosecutor will whinge to the judge and the judge will be unhappy because there’s a delay in moving the trial forward. Usually, any “anger” is directed to the defense counsel even though it is the prosecutor’s fault for not asking.

What is the defense case-in-chief?

• The prosecution has rested their presentation of evidence, and
• it is the defense’s time to call witnesses.

That is your case-in-chief period.

• In my view, you do not have to disclose anything to be introduced through the accused’s testimony until he actually takes the stand. This is because his right to remain silent protects that information. When he takes the stand the right to silence is waived on the issues about which the accused testifies as well as the attorney-client privilege.

Sentencing.

Unfortunately, the military justice process requires that your defense counsel prepare a sentencing case in the event of a conviction. In the process, your military defense lawyer will gather documents (from your service record) and statements from people who would be rehabilitation and character witnesses.

Under Rule 701(b)(1)(B) your defense counsel must provide a list and contact information for witnesses and also allow the prosecution to “inspect” any written materials. Technically, to inspect means to be allowed to read and review. But the common practice is for each side to share copies of any documents and statements.