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Reciprocal Discovery in Military Practice: “I Don’t Think It Means What You Think It Means”

United States v. Stellato reminded military prosecutors of their discovery obligations to defense, the accused, and the system as a whole. From recent encounters with military prosecutors in several different jurisdictions, it seems that the government is at least in part deflecting the embarrassment of the Stellato opinion by reenergizing their efforts at demanding “reciprocal discovery.” Regrettably, however, military prosecutors have not come to understand the meaning of what is meant by “reciprocal.” Trial counsels keep using the word “reciprocal” interchangeably with the word “parallel.” Reciprocal and parallel are hardly the same in military criminal discovery practice, and the idea that a defense attorney’s obligations under discovery are the same as a military prosecutor’s is an affront to the system.

OBLIGATIONS OF THE DEFENSE COUNSEL WITHOUT ANY TRIGGERING EVENT

Pursuant to R.C.M. 701(b)(1)(A), “Before the beginning of trial on the merits, the defense shall notify the trial counsel of the names and addresses of all witnesses, other than the accused, whom the defense intends to call during the defense case in chief…” Even if the defense does not request production of any defense witnesses, the defense must hand over the names of its merits witnesses and the address of those witnesses. Additionally, the same rule requires that the defense hand over “all sworn or signed statements known by the defense to have been made by such witnesses in connection with the case.” The second portion of this rule has not been interpreted in this digital age of text messages, emails, and social media posts, though practitioners are well served by broadly interpreting this language so as not to risk later sanctions.

In accord with R.C.M. 701(b)(2), also without regard to any triggering action by the trial counsel, defense is required to provide notice of special defenses such as alibi, innocent ingestion, lack of mental responsibility, or the intent to introduce expert testimony regarding the accused’s mental status.

TRIGGERING THE DEFENSE’S OBLIGATIONS

The trial counsel has to “ask nicely.”

If the trial counsel asks, the defense must provide the names of witnesses for the pre-sentencing phase and “to inspect any written material that will be presented by the defense at the presentencing proceeding.” R.C.M. 701(b)(1)(B)(i).

 The trial counsel has to play “nicely,” then “ask nicely.”

The defense counsel has to request discovery, then the trial counsel has to play “nicely” by complying with their discovery obligations by giving the defense all required discovery, and then the trial counsel has to “ask nicely” before the defense has any additional discovery obligations. Only then must the defense “permit the trial counsel to inspect books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody, or control of the defense and which the defense intends to introduce as evidence in the defense case-in-chief at trial.” The defense only needs to hand over to the trial counsel those matters the defense has in their possession, custody or control and which the defense intends to introduce at trial during the case-in-chief.

Additionally, if the defense requests discovery, the trial counsel complies, and the trial counsel asks “the defense…shall (except as provided in R.C.M. 706, Mil. R. Evid. 302, and Mil. R. Evid. 513) permit the trial counsel to inspect any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, that are within the possession, custody, or control of the defense that the defense intends to introduce as evidence in the defense case-in-chief at trial OR that were prepared by a witness whom the defense intends to call at trial when the results or reports relate to that witness’ testimony.” Again, this rule isolates only those matters the defense intends to introduce in their case-in-chief or that were prepared by a witness the defense will call at trial when that report relates specifically to the testimony.

THE GOVERNMENT’S OBLIGATIONS

Juxtapose these narrow obligations of discovery with the government’s duty to provide reports or examinations, including those “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, and which are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial.” Perhaps most importantly, the government is required to obtain reports, etc. that are not within their possession, custody, or control. Second, the government is required to hand over more than what the trial counsel intends to introduce at trial; the government needs to hand over those matters that are “material to the preparation of the defense.” The rights and obligations of the government and defense are hardly parallel.

POLICY AT PLAY

If the trial counsel sits back for one moment to consider the policy at play behind the very narrow obligations the defense counsel has, hopefully it will make sense. Defense attorneys need to investigate their case without being required to hand over all potential evidence the defense counsel uncovers. Defense attorneys find evidence that is not favorable to their client and in finding such evidence defense does not take on any additional obligations of disclosure. A defense attorney has different obligations to his client than the government counsel has to the overarching duty to justice.

If the rules required the defense counsel to turn over any information that could potentially impact the case, defense counsel would not investigate the case or risk harming his client. Among the narrow pieces of information or documentation the defense counsel needs to hand over for inspection to the trial counsel is what she intends to introduce at trial. Please note that not every document or photograph that a defense attorney intends to use in cross-examination for potential impeachment is an item she intends to introduce into evidence. The rules of evidence are narrow in what documents are capable of introduction. See M.R.E. 608(c).

RECIPROCAL DOES NOT MEAN THE SAME

A defense attorney has no obligation to seek evidence on behalf of the government. That bears repeating: Never, ever is a defense counsel required to seek out evidence at the government’s request or for the government’s efforts to secure conviction. I recently received a trial counsel request that would necessitate me compiling data for that prosecutor. That is not going to happen. The proper response when one receives such a ludicrous request is words to the effect that “without acknowledging the existence of matters responsive to this request, your request is denied.” To do otherwise is to risk harming the client and a defense attorney may never be ameliorated from her duty to protect her client.

In a recent case, the trial counsel asked me to go out and seek information that could incriminate my client, and the counsel made his request under the auspices of “reciprocal discovery.” I don’t mean to imply that he was attempting to trick me in his request; he was earnest in his belief that he was entitled to such evidence. I invited him to review the rules.

When trial counsels, especially those whom have never been defense counsel, make such ridiculous requests as “reciprocal” they inform me, their opponent, of their inexperience and lack of initiative. The rules are clear, organized, and readily available.

Any trial counsel that asks for “reciprocal discovery” beyond the scope of the defense’s narrow obligations will appear as foolish because they use words that don’t mean what they think they mean.