U.S. v. Stellato, 74 M.J. 473

Trial Stages: Pretrial: Discovery

1. besides the discovery obligations under RCM 701, the government has disclosure obligations under MRE 301 to MRE 321; some military trial practitioners refer to these disclosure obligations as Section III disclosures, which require trial counsel to give the defense notice of (1) the grant of immunity or leniency to a prosecution witness, (2) the accused’s written or oral statements relevant to the case (known to the trial counsel and within the control of the armed forces), (3) all evidence seized from the accused that the prosecution intends to offer into evidence at trial, and (4) all evidence of a prior identification of the accused at a lineup or other identification process that it intends to offer at trial
2. parties to a court-martial do not need to repeat discovery requests because there is a continuing duty to disclose
3. Article 46, UCMJ, provides the trial counsel, defense counsel, and the court-martial with the equal opportunity to obtain witnesses and other evidence in accordance with the rules prescribed by the President; discovery in the military justice system, which is broader than in federal civilian criminal proceedings, is designed to eliminate pretrial gamesmanship, reduce the amount of pretrial motions practice, and reduce the potential for surprise and delay at trial
4. trial counsel’s obligation under Article 46, UCMJ, includes removing obstacles to defense access to information and providing such other assistance as may be needed to ensure that the defense has an equal opportunity to obtain evidence
5. the RCMs further define a trial counsel’s obligations under Article 46, UCMJ, and three provisions are of particular relevance to this case; first, each party shall have equal opportunity to interview witnesses and inspect evidence; second, trial counsel shall, as soon as practicable, disclose to the defense the existence of exculpatory evidence known to the trial counsel; and third, the government must permit the defense to inspect any books, papers, documents, photographs, tangible objects, or copies of portions thereof, which are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense
6. the government violates an accused’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment
7. the discovery rules in the RCMs ensure compliance with the equal-access-to-evidence mandate in Article 46; in doing so, the rules aid the preparation of the defense and enhance the orderly administration of military justice; and furthermore, the parties to a court-martial should evaluate pretrial discovery and disclosure issues in light of this liberal mandate
8. the RCMs do not provide any explicit requirement for the government to preserve evidence upon the defense’s request; however, they do require that the defense have equal opportunity to inspect evidence; the UCMJ also requires that the defense have equal opportunity to obtain witnesses and other evidence; as such, the government has a duty to use good faith and due diligence to preserve and protect evidence and make it available to an accused
9. the duty to preserve evidence includes: (1) evidence that has an apparent exculpatory value and that has no comparable substitute, (2) evidence that is of such central importance to the defense that it is essential to a fair trial, and (3) statements of witnesses testifying at trial
10. no party may unreasonably impede the access of another party to a witness or evidence
11. the government does not commit a discovery violation if diligent and good-faith efforts do not lead to a witness submitting to an interview; a potential witness at a criminal trial cannot normally be required to submit to a pretrial interview for either side; however, the government cannot impede access to a witness
12. the government is required to permit the defense to inspect, upon request, tangible objects that are within the possession, custody, or control of military authorities; generally speaking, an object held by a state law enforcement agency is ordinarily not in the possession, custody, or control of military authorities; however, a trial counsel cannot avoid the requirement to permit the defense to inspect tangible objects through the simple expedient of leaving relevant evidence to repose in the hands of another agency while utilizing his access to it in preparing his case for trial; in fact, a number of scenarios have been identified in which evidence not in the physical possession of the prosecution team is still within its possession, custody, or control; these include instances when: (1) the prosecution has both knowledge of and access to the object, (2) the prosecution has the legal right to obtain the evidence, (3) the evidence resides in another agency but was part of a joint investigation, and (4) the prosecution inherits a case from a local sheriff’s office and the object remains in the possession of the local law enforcement
13. under the RCMs, the government has a duty (1) to permit inspection of tangible objects within the possession, custody, or control of military authorities, and (2) to disclose, as soon as practicable, the existence of evidence known to the trial counsel that reasonably tends to be exculpatory
14. the government’s duty under the RCMs of disclosing exculpatory evidence encompasses more than producing what was in its physical possession, but also what is in its control; trial counsel must review their own case files for exculpatory evidence and must also exercise due diligence and good faith in learning about any evidence favorable to the defense known to the others acting on the government’s behalf in the case, including the police; in regard to the latter point, a trial counsel’s duty to search beyond his or her own prosecution files is generally limited to: (1) the files of law enforcement authorities that have participated in the investigation of the subject matter of the charged offenses; (2) investigative files in a related case maintained by an entity closely aligned with the prosecution; and (3) other files, as designated in a defense discovery request, that involved a specified type of information within a specified entity; however, this list is not exhaustive because trial counsel’s duty to search beyond his own files will depend in any particular case on the relationship of the other governmental entity to the prosecution and the nature of the defense discovery request
15. the RCMs generally do not place on the government a duty to search for exculpatory evidence held by people or entities not under its control, such as a witness; nevertheless, a trial counsel cannot avoid discovery obligations by remaining willfully ignorant of evidence that reasonably tends to be exculpatory, even if that evidence is in the hands of a government witness instead of the government; this prohibition against willful ignorance has special force in the military justice system, which mandates that an accused be afforded the equal opportunity to inspect evidence
16. military courts possess the authority to impose sanctions for noncompliance with discovery requirements; these sanctions include (1) ordering the party to permit discovery, (2) granting a continuance, (3) prohibiting a party from introducing evidence, calling a witness, or raising a defense not disclosed, (4) entering such other order as is just under the circumstances, and (5) fashioning a remedy as is just under the circumstances; where a remedy must be fashioned for a violation of a discovery mandate, the facts of each case must be individually evaluated
17. dismissal with prejudice may be an appropriate remedy for noncompliance with discovery requirements; nonetheless, dismissal is a drastic remedy and courts must look to see whether alternative remedies are available; in fact, if an error can be rendered harmless, dismissal is not an appropriate remedy; however, dismissal of charges may be appropriate if a military judge determines that the effects of the government’s discovery violations have prejudiced the accused and no lesser sanction will remedy this prejudice
18. dismissal with prejudice for a discovery violation does not require a finding that the trial counsel engaged in willful misconduct; however, bad faith certainly may be an important and central factor for a military judge to consider in determining whether it is appropriate to dismiss a case with prejudice
19. in determining whether discovery violations have prejudiced an accused’s right to a fair trial, a military judge may examine (1) whether the delayed disclosure hampered or foreclosed a strategic option, (2) whether the belated disclosure hampered the ability to prepare a defense, (3) whether the delay substantially influenced the factfinder, and (4) whether the nondisclosure would have allowed the defense to rebut evidence more effectively; in essence, prejudice can arise from discovery violations when those violations interfere with an accused’s ability to mount a defense
20. in this case, the military judge did not abuse his discretion in finding prejudice from the discovery violations where the violations resulted in the inability of the defense to call a key witness and the violations resulted in lost evidence, unaccounted for evidence, and evidence left in the hands of an interested party, thus compromising the ability of the accused to mount a defense; furthermore, the military judge, after considering all possible lesser, alternative remedies, did not abuse his discretion in concluding that no remedy short of dismissal with prejudice would adequately address the prejudice

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s rulings directly
2. in an Article 62, UCMJ, appeal, an appellate court is bound by the facts as found by the military judge unless those facts are clearly erroneous

Trial Stages: Appeals: Remedies › Generally

1. dismissal with prejudice may be an appropriate remedy for noncompliance with discovery requirements; nonetheless, dismissal is a drastic remedy and courts must look to see whether alternative remedies are available; in fact, if an error can be rendered harmless, dismissal is not an appropriate remedy; however, dismissal of charges may be appropriate if a military judge determines that the effects of the government’s discovery violations have prejudiced the accused and no lesser sanction will remedy this prejudice
2. dismissal with prejudice for a discovery violation does not require a finding that the trial counsel engaged in willful misconduct; however, bad faith certainly may be an important and central factor for a military judge to consider in determining whether it is appropriate to dismiss a case with prejudice
3. in this case, the military judge did not abuse his discretion in finding prejudice from the discovery violations where the violations resulted in the inability of the defense to call a key witness and the violations resulted in lost evidence, unaccounted for evidence, and evidence left in the hands of an interested party, thus compromising the ability of the accused to mount a defense; furthermore, the military judge, after considering all possible lesser, alternative remedies, did not abuse his discretion in concluding that no remedy short of dismissal with prejudice would adequately address the prejudice

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

1. in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s rulings directly
2. a military judge’s discovery rulings and remedies for discovery violations are reviewed for an abuse of discretion
3. the abuse of discretion standard calls for more than a mere difference of opinion; instead, an abuse of discretion occurs when the military judge’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law
4. in an Article 62, UCMJ, appeal, an appellate court is bound by the facts as found by the military judge unless those facts are clearly erroneous
5. in determining whether discovery violations have prejudiced an accused’s right to a fair trial, a military judge may examine (1) whether the delayed disclosure hampered or foreclosed a strategic option, (2) whether the belated disclosure hampered the ability to prepare a defense, (3) whether the delay substantially influenced the factfinder, and (4) whether the nondisclosure would have allowed the defense to rebut evidence more effectively; in essence, prejudice can arise from discovery violations when those violations interfere with an accused’s ability to mount a defense
6. in this case, the military judge did not abuse his discretion in finding prejudice from the discovery violations where the violations resulted in the inability of the defense to call a key witness and the violations resulted in lost evidence, unaccounted for evidence, and evidence left in the hands of an interested party, thus compromising the ability of the accused to mount a defense; furthermore, the military judge, after considering all possible lesser, alternative remedies, did not abuse his discretion in concluding that no remedy short of dismissal with prejudice would adequately address the prejudice