Discovery Tag Archives — Court-Martial Trial Practice Blog

Discovery

February 9, 2023 | The Law Office of Philip D. Cave

Here’s how we start our “discovery” requests–as “Disclosure Requests.”

The defense requests disclosure of the following items in advance of any UCMJ art. 32, preliminary hearing. The request is a continuing one in accordance with UCMJ arts. 32((a)(2)(D) and46; Rules 701, 703, 405(a), (e), (1), (f)(7), (h)(3)(A), Rules for Courts-Martial, Manual for Courts-Martial, United States (2019),; Mil. R. Evid. 304(d)(1), 404(b), 705; United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999); United States v. Briggs, 48 M.J. 143, 144 (C.A.A.F. 1999); and Brady v. Maryland, 373 U.S. 83 (1963). See also, Uniform Rules of Practice before Air Force Courts-Martial, dated 1 October 2020; Rules 3.2 & 3.3; AFI 51‑201; AFGM2020-02, Administration of Military Justice, dated 5 October 2020, paragraph 5.12; AFI 51-110, Professional Responsibility Program, dated 11 December 2018, Attachment 2 (Air Force Rules of Professional Conduct); Rules 3.3, 3.4, 3.8 & 4.2 and Attachment 7 (Air Force Standards for Criminal Justice), Chapter 5. These items are relevant under UCMJ art. 32(a)(2)(D) and which calls upon the preliminary hearing officer to make a referral recommendation.

NOTE: In the event charges are referred to trial, this disclosure request immediately becomes the FIRST defense discovery request.

Discovery by the defense

April 3, 2022 | The Law Office of Philip D. Cave

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.

Wikipedia as a reliable source

August 19, 2012 | The Law Office of Philip D. Cave

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 e.g., United States v. Jones, ARMY 20090401 (A. Ct. Crim. App. December 14, 2011), Appellant was accused of effectively “Equating MOS trainees to permanent party – grandmothers to toads” The court cites to Wikipedia for the proposition that the expression “WIKIPEDIA, http://en.wikipedia.org/wiki/Apples_and_oranges (a Serbian expression akin to the familiar "apples to oranges" idiom in English) (last visited Dec. 1, 2011); in United States v. Magalhaes, NMCCA 200602480 (N-M Ct. Crim. App. February 21, 2008), the court cites to Wikipedia for the definition of the Pythagorean Theorem; in United States v. Ober, ACCA again resorts to Wikipedia for discussion of Kazza one of the early “programs” used to exchange many things over the internet, but for our purposes CP (which was also done in State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define "peer-to-peer file sharing").).

But the Fire Insurance Exchange court cites to these several cases and there is an interesting discussion of Wikipedia.

Discovery, anew

December 5, 2010 | The Law Office of Philip D. Cave

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 noted before, the biggest discovery issues are impeachment evidence and evidence that is favorable to the accused. Trial counsel don’t seem to have much problem disclosing all the bad stuff against the client, it is the good stuff favorable to the client that becomes the issue.

In the Behenna case the defense was semi fortunate.

[Tip? if a prosecution witness is suddenly no longer a witness, call them and ask why.]

Discovery

December 4, 2010 | The Law Office of Philip D. Cave

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 CID report of investigation to the [d]efense, even absent a discovery request of any kind.” and thus violated its disclosure duties under the United States Constitution and the UCMJ.See UCMJ art. 46; Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004); R.C.M. 701.

I think ACCA agrees.

AFCCA on a Art. 62 petition and witnesses

October 4, 2010 | The Law Office of Philip D. Cave

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.

I am informed that the issue of potential Brady material came up through an inadvertent disclosure at some sort of semi-official gathering at which the trial and defense counsel were present. I likened this method of disclosure as doing a reverse Ankeny. That’s in reference to United States v. Ankeny, 28 M.J. 780 (N.M.C.M.R. 1989). (Interestingly this case is another CAAF case cited in a federal habeas proceeding for a non-military accused. See Nickely v. Hannigan, 869 F. Supp. 875 (D.C. Kan. 1994). In Ankeny it was the defense who made the inadvertent disclosure to the prosecutor.

I’m encouraged, as occasionally I am

July 3, 2010 | The Law Office of Philip D. Cave

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 this request is not produced because of a claim of privilege, identify each item that would fall within the request and/or information affected, the basis of the privilege, and the current location of each document or information (i.e. a Vaughn Index, see Vaughn v. Rosen, 157 U.S. App. D.C. 340; 484 F.2d 820 (DC Cir. 1973)). Such material should be submitted, with notice to the defense, to the investigating officer or military judge for in camera review. See e.g. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984).

Behenna status

April 23, 2010 | The Law Office of Philip D. Cave

Main Justice reports:

A high-profile appeal of an Army First Lieutenant convicted last year of killing an unarmed detainee in Iraq could turn in part on whether military prosecutors withheld exculpatory evidence.

[The] case underscores how the government is being forced to explain, in the military courts as well as the civilian justice system, its compliance with Brady v. Maryland, the 1963 Supreme Court case that requires prosecutors to turn over exculpatory information to the defense.

LTC Lakin update [corrected]

April 20, 2010 | The Law Office of Philip D. Cave

TPMMuckraker reports:

Appearing on the G. Gordon Liddy radio show today, the attorney for Lt. Col. Terrence Lakin, the Birther Army doctor who is said to be facing a court martial for refusing orders, suggested that if his client is court-martialled, he will use discovery to try to further the Birther crusade.

Jensen said he expects an investigation of Lakin under Article 32 of the Uniform Code of Military Justice — which precedes a court martial — to begin as early as today or tomorrow.

More confessions and admissions coming

April 19, 2010 | The Law Office of Philip D. Cave

WorldNetDaily reports that LTC Lakin will be confessing on G. Gordon Liddy’s TV show tomorrow.

The officer refusing Army orders until Barack Obama documents his eligibility to be president and commander in chief is hitting the airwaves tomorrow to answer questions about his challenge to the president.

Lt. Col. Terry Lakin is scheduled to be on the G. Gordon Liddy show tomorrow from 10-11 a.m. EDT.