U.S. v. Avery, 52 M.J. 496

Trial Stages: Pretrial: Discovery

1. the government is required to produce evidence that is relevant, material, and favorable to the accused, including information which may expose a witness’ motivation falsifying a rape complaint; the exposure of a witness’ motivation for testifying is a proper and important function of the constitutionally protected right of cross-examination
2. defense affirmatively waived any objection to government’s nondisclosure of report of victim’s prior rape allegation where: (1) defense made no motion for continuance; (2) defense made no motion to compel discovery; (3) defense counsel affirmatively stated at trial that the defense did not intend to go into the matter of the prior rape complaint; and, (4), after receiving the report after trial, defense did not raise the issue at a post-trial Article 39(a) session
3. although government erred by failing to provide a law enforcement report of investigation pursuant to a defense request for discovery before trial, there was no plain error where: (1) the defense had a number of opportunities to remedy this situation by requesting a continuance to compel discovery; (2) the defense made a tactical decision not to present evidence of the victim’s prior rape allegation against another soldier; and, (3) there was no evidence or indication in the report that the victim’s allegations were false

Trial Stages: Appeals: Preservation of Error / Plain Error

1. appellant has the burden to show plain error, which is error that is clear or obvious and that materially prejudices the substantial rights of appellant; once appellant has met his burden of persuasion, the burden shifts to the government to show that the error was not prejudicial
2. although government erred by failing to provide a law enforcement report of investigation pursuant to a defense request for discovery before trial, there was no plain error where: (1) the defense had a number of opportunities to remedy this situation by requesting a continuance to compel discovery; (2) the defense made a tactical decision not to present evidence of the victim’s prior rape allegation against another soldier; and, (3) there was no evidence or indication in the report that the victim’s allegations were false

Trial Stages: Appeals: Waiver

1. waiver of fundamental constitutional rights must be knowingly and intelligently rendered; courts indulge every reasonable presumption against such waiver and do not presume acquiescence in relinquishment of these rights; waiver of fundamental rights must be an affirmative action, not merely a failure to object
2. defense affirmatively waived any objection to government’s nondisclosure of report of victim’s prior rape allegation where: (1) defense made no motion for continuance; (2) defense made no motion to compel discovery; (3) defense counsel affirmatively stated at trial that the defense did not intend to go into the matter of the prior rape complaint; and, (4), after receiving the report after trial, defense did not raise the issue at a post-trial Article 39(a) session