Court-Martial Trial Practice Blog
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 this case: the trial counsel never made any effort to determine whether or not information responsive to a specific discovery request was available, and when the prosecution has access – as they frequently do – how can it not be a violation of Article 46, UCMJ, for them to fail to turn over the information.
On 9 May 2007, trial counsel responded to the defense discovery request, stating in relevant part “[t]he Government is not aware of the existence of any such documentation regarding the records of the victims, Mrs. [JLC] and Mrs. [SCR].” In fact, trial counsel had not asked Mrs. SCR whether she had attended mental health counseling before responding to the defense discovery request.
Slip op. at 5 (emphasis added). This is so common – have a case right now where the prosecution admitted they’d not asked the NCIS investigator if there was anything in response to a very specific request.
Our superior court has previously noted that R.C.M. 701, “which sets forth specific requirements with respect to evidence favorable to the defense . . . implements the Supreme Court’s decision in Brady v. Maryland . . .” United States v. Williams, 50 M.J. 436, 440 (C.A.A.F. 1999) (internal quotations and emphasis omitted). We view our superior court’s guidance as requiring us to analyze nondisclosure issues under the statutory and executive order standards set forth by R.C.M. 701 and Article 46, UCMJ, which are broader than the Brady constitutional standard. See Santos, 59 M.J. at 321; United States v. Roberts, 59 M.J. 323, 326-27 (C.A.A.F. 2004). As a result, the government bears the higher burden of proving a nondisclosure in response to a specific request is harmless beyond a reasonable doubt. Webb, 66 M.J. 92; Roberts, 59 M.J. at 327. Issues of nondisclosure of evidence are reviewed de novo. See United States v. Eshalomi, 23 M.J. 12, 21-22 (C.M.A. 1986).
The military justice system provides for broader discovery than due process and Brady require. See Santos, 59 M.J. at 321; United States v. Adens, 56 M.J. 724, 731 (Army Ct. Crim. App. 2002). Article 46, UCMJ, mandates the trial counsel and defense counsel “shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.” The President has implemented Article 46, UCMJ in R.C.M. 701, which requires the government, upon defense request, to allow inspection of any tangible objects, such as papers and documents, that “are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense.” R.C.M. 701(a)(2)(A). See also R.C.M. 703(a); R.C.M. 703(f)(1). In particular, the government must, upon request, permit the defense to inspect “[a]ny . . . reports of physical or mental examinations, . . . which are within the possession, custody, or control of military authorities . . . and which are material to the preparation of the defense.” R.C.M. 701(a)(2)(B). See also United States v. Stewart, 62 M.J. 668, 671 (A.F. Ct. Crim. App. 2006). Although not a common occurrence, our court has previously recognized that an Article 46, UCMJ violation may occur without a coexistent violation of constitutional due process. Adens, 56 M.J. at 732 (government’s nondisclosure of inculpatory physical evidence violated a substantial right of the accused irrespective of a due process violation). We find the government’s nondisclosure violated Article 46, UCMJ, and R.C.M. 701, even though it did not violate Brady.
Ultimately the error was harmless beyond reasonable doubt.
[Update] CAAFLog points out that the court appeared to “spank” the prosecutors. Rightly so. It is not uncommon for prosecutors to do as this one did and blow-off the defense request by not making any effort to look for the requested information. The court describes such conduct as “dereliction.” Trigueros, Slip op. at 10-11.
As to the equal access. My point is that I often show up at an Article 39(a), UCMJ, session to litigate discovery, including mental health records, and the trial counsel says they have them and have looked at them. And they want to offer them to the MJ for in-camera review. At that point, why? If Article 46, UCMJ, means anything, why is the prosecution not required to turn them over? At least two Army judges I’m aware of, unfortunately retired now, have taken the position that if the prosecution has it the defense gets it. Whether or not the information is admissible is a different question. In some instances the disclosure has lead to admissible impeachment evidence. So much for the prosecution complying with Brady, Kyles, and Giglio.