U.S. v. Guthrie, 53 M.J. 103

Trial Stages: Pretrial: Discovery

1. discovery in military practice is open, broad, liberal, and generous, and the duty to disclose extends to impeachment as well as exculpatory evidence
2. failure to disclose mental health notes of victim was not prejudicial where the differences between the notes and the victim’s sentencing testimony were minimal, semantic in nature, and thus subject to different interpretations, and where the notes would not have changed defense counsel’s tactical decision to treat this victim gingerly during cross-examination, if indeed there was any cross-examination

Trial Stages: Merits: Instructions › Generally

1. absent plain error, failure to object to instructions as given or to request additional instructions forfeits the issue on appeal; with three clear opportunities to request spillover instruction, defense counsel forfeited the issue by failing to request the instruction
2. although spillover instructions are important, there was no plain error in the failure to give the instruction where: (1) the defense theory of the case did not lend itself to such an instruction; and (2) the government used distinct evidence to prove an earlier rape rather than evidence of a general criminal disposition

Trial Stages: Post-Trial Hearings: DuBay / Factfinding Hearings

1. the mere submission of an affidavit by an appellant does not trigger the need for a post-trial evidentiary hearing

Trial Stages: Appeals: Preservation of Error / Plain Error

1. the burden of persuasion in establishing plain error lies with the appellant

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellant bears the burden of proving that the government withheld discoverable evidence

Trial Stages: Appeals: Waiver

1. absent plain error, failure to object to instructions as given or to request additional instructions forfeits the issue on appeal