Court-Martial Trial Practice Blog
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. 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).