R.C.M. 701 — Discovery | Manual for Courts-Martial

Chapter VII · Pretrial Matters

R.C.M. 701. Discovery

2024 Manual for Courts-Martial, United States

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(a) Disclosure by trial counsel. Except as otherwise provided in R.C.M. 701(f) and (g)(2), and unless previously disclosed to the defense, trial counsel shall provide the following to the defense:

(1) Papers accompanying charges; convening orders; statements. As soon as practicable after service of charges under R.C.M. 602, the trial counsel shall provide the defense with copies of, or, if extraordinary circumstances make it impracticable to provide copies, permit the defense to inspect:

Discussion

The purpose of this rule is to ensure the prompt, efficient, and fair administration of military justice by encouraging early and broad disclosure of information by the parties. Discovery in the military justice system is intended to eliminate pretrial gamesmanship, minimize pretrial litigation, and reduce the potential for surprise and delay at trial. Parties to a court-martial should consider these purposes when evaluating pretrial disclosure issues. In addition to this rule, other sources, to include other Rules for Courts-Martial, case law, and rules of professional conduct, may require disclosure of additional information or evidence.

(A) All papers that accompanied the charges presented to the convening authority;

(B) Any written determination made by a special trial counsel pursuant to Article 34;

(D) Any papers sent with charges upon a rehearing or new trial;

(E) The convening order and any amending orders; and

(F) Any sworn or signed statement relating to an offense charged in the case that is in the possession of trial counsel.

(2) Documents, tangible objects, reports.

(A) After service of charges, upon request of the defense, the Government shall permit the defense to inspect any books, papers, documents, data, photographs, tangible objects, buildings, or places, or copies of portions of these items, if the item is within the possession, custody, or control of military authorities and—

(i) the item is relevant to defense preparation;

(ii) the Government intends to use the item in the case-in-chief at trial;

(iii) the Government anticipates using the item in rebuttal; or

(iv) the item was obtained from or belongs to the accused.

(B) After service of charges, upon request of the defense, the Government shall permit the defense to inspect the results or reports of physical or mental examinations, and of any scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of military authorities, the existence of which is known or by the exercise of due diligence may become known to the trial counsel if

(i) the item is relevant to defense preparation;

(ii) the Government intends to use the item in the case-in-chief at trial; or

(iii) the Government anticipates using the item in rebuttal.

Discussion

For specific rules concerning certain mental examinations of the accused or third party patients, see R.C.M. 701(f), R.C.M. 706, Mil. R. Evid. 302 and Mil. R. Evid. 513.

(3) Witnesses. Before the beginning of trial on the merits, trial counsel shall notify the defense of the names and contact information of the witnesses the trial counsel intends to call:

(A) In the prosecution case-in-chief; and

(B) To rebut a defense of alibi, innocent ingestion, or lack of mental responsibility, when the trial counsel has received timely notice under R.C.M. 701(b)(1) or (2).

Discussion

Such notice should be in writing except when impracticable.

(4) Prior convictions of accused offered on the merits. Before arraignment, the trial counsel shall notify the defense of any records of prior civilian or court-martial convictions of the accused of which the trial counsel is aware and which the trial counsel may offer on the merits for any purpose, including impeachment, and shall permit the defense to inspect such records when they are in the trial counsel’s possession.

(5) Information to be offered at sentencing. Upon request of the defense, the trial counsel shall:

(A) Permit the defense to inspect such written material as will be presented by the prosecution at the presentencing proceedings; and

(B) Notify the defense of the names and contact information of the witnesses the trial counsel intends to call at the presentencing proceedings under R.C.M. 1001(b).

(6) Evidence favorable to the defense. The trial counsel shall, as soon as practicable, disclose to the defense the existence of evidence known to the trial counsel which reasonably tends to—

(A) Negate the guilt of the accused of an offense charged;

(B) Reduce the degree of guilt of the accused of an offense charged;

(D) Adversely affect the credibility of any prosecution witness or evidence.

Discussion

Nothing in this rule prohibits trial counsel or other Government counsel from disclosing information earlier than required by this rule or in addition to that required by this rule. In addition to the matters required to be disclosed under subsection (a) of this rule, the Government is required to notify the defense of or provide to the defense certain information under other rules. Mil. R. Evid. 506 covers the disclosure of unclassified information which is under the control of the Government. Mil. R. Evid. 505 covers disclosure of classified information. Other Rules for Courts-Martial and Military Rules of Evidence concern disclosure of other specific matters. See R.C.M. 308 (identification of accuser), 405 (report of Article 32 preliminary hearing), 706(c)(3)(B) (mental examination of accused), 914 (production of certain statements), and 1004(b)(1) (aggravating factors in capital cases); Mil.R. Evid. 301(d)(2) (notification of immunity or leniency to witnesses), 302 (mental examination of accused), 304(d) (statements by accused), 311(d)(1) (evidence seized from accused), 321(d)(1) (evidence based on lineups), 507 (identity of informants), 612 (memoranda used to refresh recollection), and 613(a) (prior inconsistent statements). Requirements for notice of intent to use certain evidence are found in: Mil. R. Evid. 202(b) (judicial notice of foreign law), 301(d)(2) (notification of immunity or leniency to witnesses), 304(d) (notice of intent to use undisclosed confessions), 304(f)(3) (testimony of accused for limited purpose on confession), 311(d) (notice of intent to use undisclosed evidence seized), 311(d)(6) (testimony of accused for limited purpose on seizures), 321(d)(3)(notice of intent to use undisclosed line-up evidence), 321(d)(5) (testimony of accused for limited purpose of line-ups), 404(b) (intent to use evidence of other crimes, wrongs, or acts), 412(c)(1) and (2) (intent of defense to use evidence of sexual behavior or sexual predisposition of a victim); 505(i) (intent to disclose classified information), 506(h) (intent to disclose privileged government information), and 609(b) (intent to impeach with conviction over 10 years old). In accordance with R.C.M. 701(d), trial counsel have a continuing duty to identify and disclose information that is favorable to the defense throughout the prosecution of the alleged offenses against the accused. In general, trial counsel should exercise due diligence and good faith in learning about any evidence favorable to the defense known to others acting on the Government’s behalf in the case, including military, other governmental, and civilian law enforcement authorities. In the spirit of eliminating “gamesmanship” from the discovery process, trial counsel should not avoid pursuit of information or evidence because the counsel believes it will damage the prosecution’s case or aid the accused, nor should counsel intentionally attempt to obscure information identified pursuant to this subsection by disclosing it as part of a large volume of materials.

(b) Disclosure by the defense. Except as otherwise provided in subsection (f) and paragraph (g)(2) of this rule, the defense shall provide the following information to trial counsel:

(1) Names of witnesses and statements.

(A) Before the beginning of the trial on the merits, the defense shall notify trial counsel in writing of the names and contact information of all witnesses, other than the accused, whom the defense intends to call during the defense case in chief, and provide all sworn or signed statements known by the defense to have been made by such witnesses in connection with the case.

(B) Upon request of trial counsel, the defense shall also—

(i) Provide trial counsel with the names and contact information of any witnesses whom the defense intends to all at the presentencing proceedings under R.C.M. 1001(d); and

(ii) Permit trial counsel to inspect any written material that will be presented by the defense at the presentencing proceeding.

Discussion

See R.C.M. 701(f) for information that would not be subject to disclosure.

(2) Notice of certain defenses. The defense shall notify trial counsel in writing before the beginning of trial on the merits of its intent to offer the defense of alibi, innocent ingestion, or lack of mental responsibility, or its intent to introduce expert testimony as to the accused’s mental condition. Such notice by the defense shall disclose, in the case of an alibi defense, the place or places at which the defense claims the accused to have been at the time of the alleged offense, and, in the case of an innocent ingestion defense, the place or places where, and the circumstances under which the defense claims the accused innocently ingested the substance in question, and the names and addresses of the witnesses upon whom the accused intends to rely to establish any such defenses.

Discussion

See R.C.M. 916(k) concerning the defense of lack of mental responsibility. See R.C.M. 706 concerning inquiries into the mental responsibility of the accused. See Mil. R. Evid. 302 concerning statements by the accused during such inquiries. If the defense needs more detail as to the time, date, or place of the offense to comply with this rule, it should request a bill of particulars. See R.C.M. 906(b)(6).

(3) Documents and tangible items. If the defense requests disclosure under subparagraph (a)(2)(A) of this rule, upon compliance with such request by the Government, the defense, on request of trial counsel, shall permit trial counsel to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, or copies or portions of any of these items, or, in the case of buildings or places or portions thereof, inspect or photograph, if—

(A) the item is within the possession, custody, or control of the defense; and

(B) the defense intends to use the item in the defense case-in-chief at trial.

(4) Reports of examination and tests. If the defense requests disclosure under R.C.M. 701(a)(2)(B), upon compliance with such request by the Government, the defense, on request of the trial counsel, shall (except as provided in R.C.M. 706, Mil. R. Evid. 302, and Mil. R. Evid. 513) permit the trial counsel to inspect the results or reports, or copies thereof, of any physical or mental examinations and of any scientific tests or experiments made in connection with the particular case if the item is within the possession, custody, or control of the defense; and—

(A) the defense intends to use the item in the defense case-in-chief at trial; or

(B) the item was prepared by a witness whom the defense counsel intends to call at trial and the results or reports relate to that witness’ testimony.

(5) Inadmissibility of withdrawn defense. If an intention to rely upon a defense under paragraph (b)(2) of this rule is withdrawn, evidence of such intention and disclosures by the accused or defense counsel made in connection with such intention is not, in any court-martial, admissible against the accused who gave notice of the intention.

Discussion

In addition to the matters covered in subsection (b) of this rule, defense counsel is required to give notice or disclose evidence under certain Military Rules of Evidence: Mil. R. Evid. 202(b) (judicial notice of foreign law), 304(f)(3) (testimony by the accused for a limited purpose in relation to a confession), 311(d)(6) (same, search), 321(d)(5) (same, lineup), 412(c)(1) and (2) (intent to offer evidence of sexual misconduct by a victim), 505(i) (intent to disclose classified information), 506(h) (intent to disclose privileged government information), 609(b) (intent to impeach a witness with a conviction older than 10 years), 612(a)(2) (writing used to refresh recollection), and 613(a) (prior inconsistent statements).

(c) Failure to call witness. The fact that a witness’ name is on a list of expected or intended witnesses provided to an opposing party, whether required by this rule or not, shall not be ground for comment upon a failure to call the witness.

(d) Continuing duty to disclose. If, before or during the court-martial, a party discovers additional evidence or material previously requested or required to be produced, which is subject to discovery or inspection under this rule, that party shall promptly notify the other party or the military judge of the existence of the additional evidence or material.

Discussion

Trial counsel are encouraged to advise military authorities or other governmental agencies involved in the case of their continuing duty to identify, preserve, and disclose to the trial counsel or other Government counsel the information required to be disclosed under this rule.

(e) Access to witnesses and evidence. Each party shall have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence, subject to the limitations in paragraph (e)(1) of this rule. No party may unreasonably impede the access of another party to a witness or evidence.

(1) Counsel for the Accused Interview of Victim of Alleged Offense.

(A) Upon notice by counsel for the Government to counsel for the accused of the name of an alleged victim of an offense whom counsel for the Government intends to call as a witness at a proceeding, counsel for the accused, or that lawyer’s representative, as defined in Mil. R. Evid. 502(b) (3), shall make any request to interview that victim through the special victims’ counsel or other counsel for the victim, if applicable.

(B) If requested by an alleged victim who is subject to a request for interview under subparagraph (e)(1)(A) of this rule, any interview of the victim by counsel for the accused, or that lawyer’s representative, as defined in Mil. R. Evid. 502(b)(3), shall take place only in the presence of counsel for the Government, counsel for the victim, or if applicable, a victim advocate.

(2) [Reserved]

(f) Information not subject to disclosure. Nothing in this rule shall be construed to require the disclosure of information protected from disclosure by the Military Rules of Evidence. Nothing in this rule shall require the disclosure or production of notes, memoranda, or similar working papers prepared by counsel and counsel’s assistants and representatives.

(g) Regulation of discovery.

(1) Time, place, and manner. The military judge may, consistent with this rule, specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just.

(2) Protective and modifying orders. Upon a sufficient showing, the military judge may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Subject to limitations in Part III of the Manual for Courts-Martial, if any rule requires, or upon motion by a party, the military judge may review any materials in camera, and permit the party to make such showing, in whole or in part, in writing to be inspected only by the military judge in camera. If the military judge reviews any materials in camera, the entirety of any materials examined by the military judge shall be attached to the record of trial as an appellate exhibit. The military judge shall seal any materials examined in camera and not disclosed and may seal other materials as appropriate. Such material may only be examined by reviewing or appellate authorities in accordance with R.C.M. 1113.

Discussion

In reviewing a motion under this paragraph, the military judge should consider the following: protection of witnesses and others from substantial risk of physical harm, bribes, economic reprisals, and other intimidation; maintenance of such secrecy regarding informants as is required for effective investigation of criminal activity; confidential information recognized by law, including protection of confidential relationships and privileges; and any other relevant considerations. If the military judge defers discovery or inspection, the military judge should ensure that all material and information to which a party is entitled are disclosed in sufficient time to permit counsel to make beneficial use of the disclosure. The terms of the sealing order may provide parameters for examination by or disclosure to those persons or entities whose interests are being protected.

(3) Failure to comply. If at any time during the court-martial it is brought to the attention of the military judge that a party has failed to comply with this rule, the military judge may take one or more of the following actions:

(A) Order the party to permit discovery;

(B) Grant a continuance;

(D) Enter such other order as is just under the circumstances. This rule shall not limit the right of the accused to testify in the accused’s behalf.

Discussion

Factors to be considered in determining whether to grant an exception to exclusion under subsection (3)(C) include: the extent of disadvantage that resulted from a failure to disclose; the reason for the failure to disclose; the extent to which later events mitigated the disadvantage caused by the failure to disclose; and any other relevant factors. The sanction of excluding the testimony of a defense witness should be used only upon finding that the defense counsel’s failure to comply with this rule was willful and motivated by a desire to obtain a tactical advantage or to conceal a plan to present fabricated testimony. Moreover, the sanction of excluding the testimony of a defense witness should only be used if alternative sanctions could not have minimized the prejudice to the Government. Before imposing this sanction, the military judge must weigh the defendant’s right to compulsory process against the countervailing public interests, including (1) the integrity of the adversary process; (2) the interest in the fair and efficient administration of military justice; and (3) the potential prejudice to the truth-determining function of the trial process. Procedures governing refusal to disclose classified information are in Mil. R. Evid. 505. Procedures governing refusal to disclose other government information are in Mil. R. Evid. 506. Procedures governing refusal to disclose an informant’s identity are in Mil. R. Evid. 507.

(h) Inspect. As used in this rule “inspect” includes the right to photograph and copy.