The Brady bunch: an examination of disclosure obligations in the civilian federal and military justice systems.
I. PERFECT STRANGERS II. THE FACTS OF LIFE A. Civilian Federal Law on Discovery B. Military Law on Discovery III. WHO'S THE BOSS? IV. ALL IN THE FAMILY V. GROWING PAINS A. United States v. Senator Ted Stevens B. United States v. Dr. Ali Shaygan C. United States v. 1LT Michael Behenna VI. DIFF'RENT STROKES VII. HOME IMPROVEMENT A. Giglio Material B. Tips for Prosecutors 1. Document Compliance 2. Ensure Compliance by All Law Enforcement Agencies 3. Do Not Go It Alone on Difficult Discovery Matters or Ethical Issues 4. Do Not Withhold Evidence Based on a Lack of Prejudice to the Defense C. Tips for Defense Counsel 1. Prepare Thorough Discovery Requests 2. Do Your Own Homework 3. Document and Know Your Remedies D. The Way Forward.
I. PERFECT STRANGERS
The civilian federal and military justice systems are two separate, distinct systems of justice. (1) By necessity, the military justice system proscribes far more conduct than its civilian counterpart in order to maintain the discipline necessary for an effective fighting force. (2) Each system also utilizes separate rules to guide its administration of justice. Despite these differences, the two systems share the common goal of achieving justice. (3)
In both systems, discovery practice serves as the bedrock of the criminal justice process; it is present from the very beginning and continues throughout the proceedings. Therefore, a comparison between these two systems appropriately begins with an examination of the rules surrounding discovery practice. A comprehensive understanding of discovery is imperative to ensure that the goal of justice is being served.
In each system of justice, complex rules and regulations govern discovery practice. Many of the disclosure obligations are similar in the civilian federal and military justice systems and an examination of those similarities will assist the practitioner by providing guidance, explanation, and persuasive authority. Where the rules and regulations are dissimilar will also help the practitioner understand and appreciate the requirements surrounding discovery.
This article will begin by examining the evolution of the rules concerning discovery in both the civilian federal and the military justice systems. It will then discuss current discovery obligations and remedies for noncompliance. The article will also briefly highlight examples of prosecutorial misconduct resulting from discovery violations. The article will conclude with a discussion of proposed solutions for discovery issues and offer some tips for practitioners to ensure compliance with discovery obligations.
II. THE FACTS OF LIFE
A. Civilian Federal Law on Discovery
The development of rules regarding discovery in criminal cases began as a function of common law. Not surprisingly, the United States Supreme Court concluded long ago that basic principles of constitutional due process prohibit prosecutors from obtaining convictions through the presentation of evidence that is known to be false. (4) The Court soon recognized that due process may likewise be offended where the government's failure to disclose the truth to a fact-finder is less blatant or deliberate. (5) In time, it became apparent that a prosecutor's duty to disclose the true facts of a case should extend not only to evidence that was presented during the actual trial but also to disclosure of evidence to an accused prior to trial in preparation for a defense. For example, in the landmark case of Brady v. Maryland, (6) the defendant and his accomplice were convicted of a murder that occurred during a robbery and were sentenced to death. (7) At trial, the defendant admitted that he was responsible for murder but argued that he should not receive the death penalty because it was his accomplice who actually killed the victim and not him. (8) Although the defense was provided several statements of the accomplice prior to trial, the government withheld a statement by the accomplice in which the accomplice admitted that he had done the actual killing and not the defendant. (9) The defense requested a new trial after learning of the prosecution's failure to disclose the accomplice's exculpatory statement post-conviction but the trial court denied the request. (10) On appeal, the Third Circuit concluded that failure to disclose the accomplice's exculpatory statement pretrial violated the defendant's due process rights and remanded the case for retrial on the issue of punishment under Maryland law. (11) The Supreme Court affirmed, (12) holding that constitutional due process requires a prosecutor to disclose evidence that is favorable to a defendant upon request by the defense, "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (13)
Over time, civilian courts have attempted to define, and in many ways expand, the "materiality" requirement announced in Brady. Evidence is considered to be material only "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (14) Under this "reasonable probability" standard, a defendant is not required to prove that it is more likely than not that presentation of the undisclosed evidence would have resulted in an acquittal. (15) Rather, "[a] 'reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression 'undermines confidence in the outcome of the trial.'" (16) The terminology used by civilian federal courts to define "material" evidence under this standard tends to vary to some degree. (17) In applying the standard, some civilian federal courts reach opposite conclusions when faced with somewhat similar facts on the issue of materiality. (18) Indeed, some courts have taken the view that a prosecutor should not use "materiality" and thus, the "reasonable probability" standard, as a basis for withholding evidence pretrial but should, instead, disclose any and all information which "tends to negate guilt of the accused or mitigate the offenses charged." (19)
In spite of the variations in terminology used to define and apply the "reasonable probability standard," the Supreme Court has continued to expand the requirements of Brady. For example, while the literal holding in Brady required the defense to make a request before the obligations under Brady apply, (20) it is now clear that Brady obligations exist without a specific request from the defense when the evidence at issue is "obviously of substantial value to the defense." (21) Moreover, favorable evidence may be deemed discoverable under Brady regardless of whether the evidence is ultimately deemed admissible at trial. (22) Although some courts have recognized that Brady does not provide the defense with unfettered discretion to search all government files, (23) the Supreme Court has expressly stated that the prosecution has an affirmative duty to preserve evidence pretrial that bears an "exculpatory value that was apparent before the evidence was destroyed." (24)
The requirements of Brady have likewise been extended to include disclosure of any evidence which has a tendency to impeach government witnesses. (25) This often overlooked form of Brady-derived, favorable evidence is commonly referred to as "Giglio material" in practice. As will be discussed later in this article, disclosure of Giglio material should be a major concern for prosecutors during pre-trial discovery, as it is extremely likely that such material exists in almost every criminal case prosecuted. Furthermore, a prosecutor's obligation to provide Brady material is a continuing duty in civilian federal courts that "continues throughout the judicial process." (26)
Additionally, Brady requirements have been further expanded to require a prosecutor to learn of favorable evidence known to others acting on behalf of the government during the prosecution, including information that is "known only to police investigators and not to the prosecutor." (27) As a general rule, a "[p]rosecutor will be deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant." (28) For example, an Assistant United States Attorney will likely be charged with knowledge of the criminal records of witnesses that are actually in the possession of FBI agents assisting with a prosecution, (29) as well as impeachment evidence against a cooperating witness in a drug case that is in possession of DEA agents involved in the case. (30) Courts have generally refused to charge prosecutors with knowledge of information in possession of government agencies that are not working with the prosecutor's offices jointly in an investigation, such as tax returns in the possession of the Internal Revenue Service, (31) documents in possession of a regulatory agency like the Securities Exchange Commission, (32) or information possessed by the Bureau of Prisons. (33) Note, however, that a prosecutor may be required to turn over favorable evidence from government agencies that he has access to and knowledge of even if the evidence is possessed by an agency that is not involved in the investigation. (34)
Practitioners in civilian federal courts as well as military courts who may be searching for a concise, straightforward rule to determine whether a Brady violation has occurred should consult the Supreme Court's decision in United States v. Strickler. (35) In this decision, the Supreme Court provides a somewhat user-friendly, three-part test for analyzing Brady issues. (36) The defendant in Strickler was convicted of capital murder and later sought habeas review in federal court based on the prosecution's discovery violation. (37) At trial, one of the eyewitnesses testified extensively about seeing the defendant and others abduct the victim. (38) The witness testified unequivocally that she observed the abduction, testifying in detail and with marked certainty that she could positively identify both the victim and the defendant. (39) However, post-trial, the defendant learned of a number of documents, including letters from the witness to police and notes of the investigating officer indicating that in the weeks and months following the incident, the witness' memory of the events was very poor. (40) More specifically, some of the documents described the witness as having a "vague memory" or "muddled memories" regarding the issue of identifying the victim and the defendant. (41) The documents further noted that the witness was not able to identify the victim until several days following the incident after spending time looking at photos of the victim with her boyfriend. (42)
Although the prosecution failed to disclose the information, the Court determined that the defendant was not entitled to a new trial based upon the discovery violation by the prosecutor. (43) In reaching this conclusion, the Court announced a three-prong test for materiality, stating, "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must be suppressed by the [prosecution], either willfully or inadvertently; and prejudice must have ensued." (44) Although the Court noted that the evidence was favorable to the accused and the prosecution failed to disclose the evidence under the first two prongs, the Court concluded that the defendant failed to establish prejudice. (45) In particular, the Court reasoned that there was sufficient evidence to establish guilt aside from the evidence that was not disclosed by the prosecution, including the testimony of two additional eyewitnesses and "considerable forensic and other physical evidence linking petitioner to the crime." (46)
Brady has been further expanded to address the question of whether a prosecutor's delay in turning over obviously favorable material constitutes a violation of due process. Discoverable material under Brady must generally be provided to the defense "'in a manner that gives the defendant a reasonable opportunity either to use the evidence in the trial or to use the information to obtain evidence for use in the trial.'" (47) Although "[t]here is nothing in Brady ... to require that such disclosures be made before trial," (48) "[t]he trial judge must be given a wide measure of discretion to ensure satisfaction of this standard." (49) As the United States Court of Appeals for the D.C. Circuit has noted,
[W]e believe that application of a strict rule in this area would inevitably produce some situations in which late disclosure would emasculate the effects of Brady or other situations in which premature disclosure would unnecessarily encourage those dangers that militate against extensive discovery in criminal cases, e.g. potential for manufacture of defense evidence or bribing of witnesses. Courts can do little more in determining the proper timing for disclosure than balance in each case the potential dangers of early discovery against the need that Brady purports to serve of avoiding wrongful convictions. (50)
Thus, courts will generally consider the value of the evidence to the defense in determining whether a Brady violation occurred due to late disclosure. (51) For example, where the evidence at issue either fails to support or is of little substantive value to the defense theory, no violation may be found. (52) Conversely, late notification of exculpatory evidence regarding a key government witness may constitute a Brady violation if the delay is so close to trial that the defense is not afforded an adequate opportunity to incorporate the information into the defense's case. (53)
In addition to the constitutional duty to disclose favorable evidence to a defendant pursuant to Brady and its progeny, Congress has implemented a number of rule-based requirements via Rule 16 of the Federal Rules of Criminal Procedure. (54) Rule 16 imposes a number of disclosure requirements on a prosecutor to disclose a variety of items to a defendant pretrial including, but not limited to, statements of the defendant, (55) the defendant's record, (56) information relating to government experts, (57) certain items in possession of the government and other items material to the defense of the case. (58) The requirements of Rule 16 and the requirements imposed under Brady should be analyzed separately because each serves a different purpose: Brady serves to protect the defendant's fundamental constitutional rights and Rule 16 serves to make the criminal process more fair and efficient. (59) In fact, Rule 16 is broader than constitutional requirements imposed under Brady in order to "'promote greater pretrial discovery,' in the view that 'broader discovery will contribute to the fair and efficient administration of justice ... by minimizing the undesirable effect of surprise at the trial.'" (60) In addition to aiding the defense in preparing for trial or moving to suppress evidence, broader discovery under Rule 16 may also promote judicial economy by conserving resources. (61)
The defense must request disclosure under Rule 16 in order to trigger the rule's mandatory obligations. (62) Rule 16 provides a continuing duty to disclose on the prosecution that continues throughout the trial. (63) As with Brady, the appropriate time to provide disclosure is nonspecific and somewhat vaguely defined as being simply "timely." (64) Rule 16 specifically exempts the prosecutor's work product from disclosure. (65) However, prosecutors must remain mindful of the fact that a claim of work product will not eliminate the prosecutor's obligation to turn over otherwise discoverable material under Rule 16. For example, if the prosecutor obtains exculpatory material while preparing for trial, work product is not a basis for failing to abide by the requirements of Rule 16 regarding disclosure. (66) Notably, when the prosecution provides disclosure as required, Rule 16 imposes reciprocal discovery requirements on the defense. (67)
As with any rule of constitutional importance, case law has developed over the years interpreting the provisions of Rule 16. For example, some courts interpret rough agent notes taken during an interview with a defendant as being a "statement" which must be disclosed under Rule 16, (68) while other courts do not mandate disclosure of notes if a summary report of the agent's interview is provided. (69) Although the obligations under Brady and Rule 16 should be analyzed separately, there are some concepts that are common to both. For example, under both Rule 16 and Brady, the prosecution must disclose information that is "material" to the defense. (70) Materiality under Rule 16 requires "some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant to significantly alter the quantum of proof in his favor." (71) The definition of materiality under Rule 16 is often considered to be broader than the definition of materiality under Brady. (72) In addition, as with Brady, Rule 16 requires prosecutors to seek discoverable information from law enforcement agencies assisting with an investigation. (73)
Rule 16 specifically authorizes courts to regulate and resolve disclosure issues providing that, "[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief." (74) In practice, this provision of Rule 16 can be very helpful to both prosecutors and defense. Often, prosecutors are faced with competing duties regarding discovery. One the one hand, prosecutors are specifically mandated to turn over favorable evidence to an accused while on the other hand, the prosecutor must be cautious to avoid unintended consequences of disclosure to the public welfare. For example, disclosure in some cases, while mandated by Brady and/or Rule 16, may pose a risk of harm to a victim or witnesses, or may compromise national security. (75) This provision of Rule 16 permits prosecutors to make an ex parte, in camera submission to the court of any potentially discoverable information so that the court may resolve the discovery issue. (76) The court may either require disclosure or issue a protective order finding that disclosure is not mandated under the circumstances. Since the court is authorized under this rule to "restrict" disclosure, (77) the court may choose to provide limited disclosure to the defendant only. In practice, a court may choose to disclose the information to the defendant with certain restrictions including limitations on who may access the information provided to the defense. Thus, by way of example, a defendant may suggest a protective order limiting disclosure where it seems that a trial judge may be reluctant to allow disclosure of otherwise discoverable information for fear of compromising the security of a witness or a victim.
In addition to the requirements of Rule 16, a civilian practitioner must be aware that most federal district courts have developed local rules addressing various procedural matters, some of which include pretrial discovery. (78) Some of these rules may impose obligations which seem more stringent that the constitutional Brady-Giglio requirements or the mandates of Rule 16. (79) For example, the United States District Court for the District of Massachusetts requires prosecutors to provide "Automatic Discovery" (80) of certain listed materials including exculpatory material. (81) Exculpatory material is broadly defined in that District to include any material that casts doubt on the defendant's guilt, on the admissibility of evidence, or on the credibility of any government evidence. (82) It also includes material that may diminish the defendant's culpability at sentencing. (83)
B. Military Law on Discovery
As in the civilian sector, military discovery rules stem from an accused's constitutional right to due process. (84) The military prides itself on its generous provisions for open and early discovery in trials by courts-martial. The Court of Appeals for the Armed Forces (C.A.A.F.) has emphasized that Congress and the President enacted higher standards for discovery in trials by courts-martial. (85) C.A.A.F. has also noted, "The military justice system has been a leader with respect to open discovery...." (86)
Military discovery is designed to be broader than in civilian federal criminal proceedings in an effort to eliminate pretrial "gamesmanship." (87) This liberal approach is evident throughout the military cases that adopt and expand Brady. As in the civilian sector, a Brady violation occurs if the government suppresses favorable evidence that is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. (88) In the military, however, courts have adopted a "materiality" test that reflects the expansive rights of an accused in a military trial.
A military court will review the concept of materiality at two levels. (89) The first is at the trial level and involves a determination as to whether the information would be "material to the defense" in the preparation of their case. (90) The second analysis is at the appellate level, and involves a determination of whether the evidence is "material either to guilt or to punishment." (91) As in the civilian system, the military recognizes that nondisclosure of evidence will result in a constitutional due process violation if there is a "reasonable probability" sufficient to "undermine confidence in the outcome." (92)
While the civilian federal courts may vary in their application of "materiality," the military courts consistently apply a two-step analysis when it reviews disclosure issues. (93) First, the court looks to see whether the information at issue was subject to disclosure and second, if the information was not disclosed, the court examines the effect of that nondisclosure on the accused's trial. (94) If the information was subject to disclosure but not disclosed, the court will review the materiality of the withheld information by examining "the impact that information would have had on the results of the trial proceedings." (95)
Military appellate courts have adopted two tests for improperly withheld evidence. (96) If the defense did not make a discovery request or made only a vague, general request for discovery, the accused will only be entitled to relief if he can show a "reasonable probability" of a different outcome at trial, had the information been disclosed. (97) If the defense made a specific request for discovery, however, or if there was prosecutorial misconduct, the application of the "reasonable probability" standard is much more favorable to an accused. Unlike the civilian system, a military court will "give the benefit of any reasonable doubt to the military accused"; that is, if the court has a reasonable doubt as to whether the outcome of the proceeding would have been different, it will grant relief to the military accused. (98) As such, the military prosecutor may face a heavier burden to uphold a conviction if discoverable evidence has been withheld. (99) This incredibly high standard embodied in the second test does not have a civilian counterpart; rather, it is a reflection of the expansive military discovery rights under Article 46, UCMJ. (100)
In addition to exculpatory evidence, the military also recognizes that impeachment evidence is subject to discovery. (101) Impeachment evidence, also known as "Giglio" material, includes disclosure of evidence that may affect the credibility of a government witness. (102) As with exculpatory evidence, impeachment evidence "can obviously be material evidence at a criminal trial." (103) Importantly, information does not have to be admissible at trial in order for it to be discoverable. (104)
Several different situations can result in Giglio material that must be disclosed to defense. For example, if a witness is testifying pursuant to a
grant of immunity, that information must be disclosed to the defense. (105) Knowledge that a witness has a monetary interest in the outcome of a trial is also Giglio material and must be disclosed. (106) Similarly, whether a government witness is under investigation for a crime of dishonesty is proper impeachment information and must be disclosed. (107)
In order to be discoverable, the information must be located within the parameters of the files that the prosecution must review for exculpatory material. (108) While the government is required to disclose discoverable information, it is not required to search indefinitely for that information. (109) C.A.A.F., in United States v. Williams, noted that the trial counsel has an absolute duty to review his own files, but went on to state that the extent to which he must reach beyond evidence in his immediate custody to files from other agencies requires an individual, case-by-case analysis. (110) This analysis must focus on "the relationship of the other governmental entity to the prosecution and the nature of the defense discovery request." (111)
To assist with the case-by-case analysis, C.A.A.F. developed a "due diligence" standard. (112) Trial counsel must review the files of other government authorities to determine whether those files contain discoverable information. (113) The court has explained that the "due diligence" requirements include searching the files of law enforcement authorities that have participated in the investigation; the files in a related case maintained by an entity "closely aligned with the prosecution"; and other files specifically identified in a defense request for discovery. (114) Regardless of whether the defense counsel could have discovered the information on his own, the trial counsel has an affirmative duty to exercise due diligence to discover information that is material to the preparation of the defense. (115) Additionally, if relevant files are known to be in the possession of another governmental agency, the prosecution must notify the defense and engage in "good faith efforts" to obtain the material. (116)
While the civilian federal criminal justice system has developed its own set of rules-based requirements relating to discovery, the military justice system has likewise established its own set of rules concerning discovery in criminal cases. The foundation for military discovery is Article 46 of the Uniform Code of Military Justice, which provides the trial counsel, the defense counsel, and the court martial with "equal opportunity" to obtain witnesses and evidence. (117) The court has noted that Article 46, UCMJ, may impose a heavier burden on the government to sustain a conviction in a court-martial than is constitutionally required when defense requested discovery is withheld. (118)
The President implemented Article 46 in Rules for Court Martial (R.C.M.) 701. (119) R.C.M. 701 sets forth specific discovery requirements, including required disclosures by both the trial counsel and the defense counsel. (120) While both Federal Rule of Criminal Procedure 16 and R.C.M. 701 are mandatory rules, R.C.M. 701 is truly treated as the practitioner's guide to discovery in the military criminal justice system. R.C.M. 701(a) describes various duties of trial counsel with respect to disclosing information to the defense. Even in the absence of a defense discovery request, the trial counsel must disclose papers accompanying the charges, the convening orders, and any signed or sworn statements in the possession of the trial counsel as well as the names and addresses of the prosecution's witnesses, and records of military or civilian convictions of the accused. (121) Other items must be disclosed once there has been a defense request for discovery. (122)
For certain items, the defense is also required to provide discovery to the trial counsel, even in the absence of a request for discovery. (123) In other areas, if the defense requests disclosure from the trial counsel of certain items, the defense must reciprocate. (124) In addition to the required disclosures under R.C.M. 701, the Military Rules of Evidence also provide required disclosures. (125)
This broad discovery is further reflected in R.C.M. 701(a)(6)(A)-(C), which implements the Supreme Court's holding in Brady. R.C.M. 701(a) requires the trial counsel, as soon as practicable, to "disclose to the defense the existence of evidence known to the trial counsel which reasonably tends to negate the guilt of the accused of an offense charged, reduce the degree of guilt of the accused of an offense charged, or reduce the punishment." (126) As in the civilian system, this obligation is independent of any defense discovery request. (127)
The military encourages open and early discovery. The analysis to R.C.M. 701 notes that there are several reasons for providing early discovery, including the likelihood of early decisions regarding the withdrawal of charges, motions, pleas, and composition of courts-martial. The analysis further states that broad discovery "contributes substantially to the truth-finding process and to the efficiency with which it functions." (128)
Although early and open discovery is encouraged, R.C.M. 701 puts a deadline on such discovery. Certain discovery must be accomplished after service of charges, even without a discovery request; (129) other discovery may follow a discovery request. (130) Additionally, some information must be disclosed before arraignment (131) and other information must be disclosed before trial on the merits. (132) For certain items, the defense must provide reciprocal discovery if the Trial Counsel has complied with defense's request for discovery. (133) R.C.M. 701(g) also allows the military judge to specify the time, place, and manner of making discovery.
The Air Force has expanded the requirements set forth in R.C.M. 701. The Air Force implemented the Air Force Standards of Criminal Justice (Standards) to guide Air Force military and civilian lawyers, paralegals, and nonlawyer assistants in the Air Force Judge Advocate General's Corps. (134) The Standards are also applicable to those civilian lawyers who practice before Air Force Courts Martial. (135) The Standards specifically, and "strongly" encourage early disclosure of discoverable material. (136) Importantly, all parties have a continuing obligation to disclose discoverable evidence, should additional evidence or material previously requested be discovered. (137)
III. WHO'S THE BOSS?
Civilian federal courts are given authority to remedy discovery violations by the provisions of Rule 16 as well as by the court's inherent supervisory powers to prevent misconduct by prosecutors during the judicial process. Under Federal Rule of Criminal Procedure Rule 16(d), a trial court may address a discovery violation by compelling production or suppressing evidence. (138) A judge is also authorized to grant a continuance, (139) which frequently occurs in practice when there is an unintentional late disclosure of discoverable evidence by the prosecution. This rule also provides the court with broad discretion to fashion an order which addresses the particular violation at issue on a case-by-case basis by providing the court with authority to "enter any other order that is just under the circumstances." (140)
Prosecutors who willfully abuse the discovery process may face seemingly unimaginable personal consequences as discussed in greater detail later in this article. However, in addition to unpleasant personal scrutiny, willful discovery violations may result in an outfight dismissal of the charges. Dismissal is generally considered to be "an extreme measure that is warranted only in those very rare cases where a defendant has suffered substantial prejudice that cannot be cured in any other way." (141) Charges are unlikely to be dismissed based on a discovery violation unless the court finds that the prosecutor's actions represent "flagrant" misconduct by either an intentional or reckless disregard of mandatory disclosure obligations. (142) In addition to dismissal, a court may vacate a sentence or reverse a conviction based upon a discovery violation. (143)
In the military, both the trial counsel and the defense counsel must comply with the rules of discovery. (144) If discovery violations occur, R.C.M. 701(g) provides the military judge with broad latitude to address those violations. (145) If either side refuses to disclose requested information, the court may review the evidence in camera. (146) Much the same as Federal Rule of Criminal Procedure 16(d), R.C.M. 701(g)(2) then allows the court to "order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate." (147) As in the civilian system, a military judge may impose a protective order if necessary. (148) Additionally, if it is brought to the attention of the military judge at any time during the court-martial that a party has failed to comply with R.C.M. 701, the military judge may order discovery; grant a continuance; prohibit the party from introducing evidence, calling a witness, or raising a defense not disclosed; or enter any other order as is just under the circumstances. (149)
When imposing a remedy, it is important that it not be disproportionate to the offense. (150) Additionally, a remedy is not appropriate if less restrictive means could minimize the harm to the government. (151) As such, the ultimate punishment of excluding a defense witness's testimony should be used only sparingly. (152) The Discussion to R.C.M. 701(g)(3) notes that this remedy should only be used "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." (153)
Importantly, when deciding whether to exclude evidence under this Rule, the court should articulate this balancing test on the record. (154) In United States v. Pomarleau, the accused was tried for two specifications of drunk driving and two specifications of involuntary manslaughter, resulting from a vehicle crash. (155) Defense requested the assistance of two experts in accident investigation and reconstruction to rebut the government's assertion that the accused was driving the vehicle. (156) The convening authority denied funding of one expert, but allowed partial funding of the other expert. (157) The trial counsel requested discovery from the defense, including copies of the exhibits to be introduced through their expert witness. (158) Part of the discovery was provided to trial counsel during trial while the trial counsel maintained that other discovery was never provided. (159) To remedy the discovery violation, the trial judge excluded the evidence and prohibited the expert witness from referring to the evidence in his testimony. (160) C.A.A.F. reversed, setting aside the findings and the sentence for a rehearing. (161) In doing so, the court noted that the trial judge excluded the evidence without noting his reasons on the record; thereby rendering it impossible to determine whether a less restrictive option, such as a continuance, could have been a better remedy. (162)
Before imposing sanctions, R.C.M. 701(g) also requires the military judge to evaluate "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." (163)
R.C.M. 701 is strikingly similar to Federal Rule of Criminal Procedure 16. As such, the military practitioner may choose to examine the available civilian remedies to address any issues of non-compliance. Although not binding on military courts, the civilian system may provide persuasive authority on issues surrounding discovery.
In addition to the considerations surrounding R.C.M. 701 and Federal Rule of Criminal Procedure 16, a prosecutor must also be mindful of additional rules that may impose further discovery obligations. One such rule is the Jencks Act. (164)
IV. ALL IN THE FAMILY
Although the civilian and military justice systems are guided by separate rules regarding discovery, the Jencks Act is equally applicable to both systems. (165) The Jencks Act requires that the prosecutor disclose pretrial statements or reports of a government witness, once that witness has testified on direct examination. (166) "Statements" includes both written and oral statements. (167) The statements must also be "of the witness," which include statements that have been signed or otherwise adopted by the witness. (168) Transcripts of oral statements by a witness must be disclosed if the transcript is "substantially verbatim." (169)
The civilian justice system has expanded the protections of the Jencks Act through Federal Rule of Criminal Procedure 26.2. (170) While the Jencks Act applies only to government witnesses, Rule 26.2 applies to any party who calls a witness. (171) Similarly, the military has also expanded the protections of the Jencks Act through R.C.M. 914. (172) R.C.M. 914 also requires both sides to produce pre-trial witness statements, upon a motion by the other party. (173) Both Rule 26.2 and R.C.M. 914 exempt the defense from producing prior statements of the defendant or accused. (174)
The purpose of the Jencks Act is to ensure that potential impeachment information is disclosed. (175) Although this rule does not require the statements to be turned over until the witness has testified on direct examination, the prudent trial counsel will comply with the military's directive of open and early discovery and provide the information prior to the witness's direct examination. In fact, the discussion to R.C.M. 914 states, "Counsel should anticipate legitimate demands for statements under this and similar rules and avoid delays in the proceedings by voluntary disclosure before arraignment." (176)
Practitioners should view the requirements of the Jencks Act as a separate discovery requirement that does not abrogate or limit any other discovery obligations imposed by case law or other criminal discovery rules. Indeed, it has been held that if a statement does not qualify as a discoverable statement under the Jencks Act, prosecutors must still disclose statements that are exculpatory under the separate requirements of Brady and its progeny. (177) Therefore, simply because a statement does not qualify for disclosure under the Jencks Act does not mean that it may be withheld if it is exculpatory or impeachment evidence.
V. GROWING PAINS
As noted previously, the rules in both the civilian and military justice systems provide trial judges with broad discretion to fashion a remedy for a discovery violation. While prosecutors will likely consider dismissal or suppression of evidence to be a very bad outcome in and of itself, violations of discovery rules may carry professional implications as well. For example, a prosecutor may be subjected to public scrutiny by being referenced in a published appellate decision. (178) Likewise, a trial judge may require a prosecutor to show cause as to why sanctions should not be imposed because of a discovery violation. (179) Moreover, when faced with discovery violations in high-profile cases, the media's appetite for reporting government abuse, whether perceived or real, will not go unsatiated. This point is best. illustrated by an examination of three separate cases involving charges against a former United States Senator, a physician, and an Army Ranger.
A. United States v. Senator Ted Stevens
On 29 July 2008, Senator Ted Stevens of Alaska was indicted on seven counts of making false statements by failing to include items of value on his Congressional financial disclosure forms. (180) The government alleged that Senator Stevens engaged in an ongoing effort to conceal his receipt of more than $250,000 of gifts from VECO Corporation and its Chief Executive Officer, Bill Allen. (181) Each count carded a maximum five-year prison term. (182)
The evidence presented at trial revealed that VECO Corporation, an oil services company, remodeled Senator Stevens' home. (183) Prosecutors alleged that Senator Stevens received more than $250,000 in gifts and services from VECO Corporation. (184) Senator Stevens said he paid $160,000 for the renovations, believing that covered the costs. (185) The charges centered around whether Senator Stevens knew he was receiving the additional benefit and whether he knowingly failed to disclose the gifts and services on the financial disclosure forms. (186)
The government's star witness was Mr. Allen, the founder and CEO of VECO Corporation. (187) Mr. Allen testified that he never billed Senator Stevens and said that Senator Stevens knew he was getting a special rate. (188) Senator Stevens denied the allegations. (189)
On 1 October 2008, the prosecutors sent the defense a copy of an FBI report of an agent's interview with Mr. Allen, after Mr. Allen had already been on the witness stand. (190) The notes indicated that Mr. Allen told the agent that he believed that Senator Stevens would have paid the bills had they been sent to him, which was inconsistent with the testimony that Mr. Allen gave against Senator Stevens. (191)
The defense moved for a mistrial, arguing that the prosecutors had withheld information they were required to disclose. (192) The judge, although palpably upset with the prosecutors, denied the motion. (193) On 27 October 2008, Senator Stevens was convicted of all seven charges. (194)
In December 2008, FBI agent Chad Joy came forward and accused the prosecution team of committing various forms of misconduct throughout the trial. (195) Agent Joy alleged that another FBI agent involved in the case engaged in an improper relationship with the government's key witness, Mr. Allen. (196) Agent Joy also alleged that the prosecutors, who had been previously admonished for sending a witness home to Alaska, did so intentionally, knowing the witness would have been favorable to the defense. (197) The witness later contacted the defense team and informed them that he'd spent considerably less time working on Senator Stevens' home than VECO's records indicated. (198)
Most importantly, Agent Joy revealed that the prosecutors purposefully withheld exculpatory evidence from the defense. (199) The evidence consisted of recently discovered notes indicating that Mr. Allen's in-court testimony regarding conversations he had about the renovations were markedly different from when he was interviewed nearly five months before the trial. (200) Had this evidence of inconsistency been turned over to the defense, they could have been used to cross-examine Mr. Allen or in closing argument to the jury. (201)
In February 2009, the District Judge held the prosecutors in civil contempt for not handing over documents to Senator Stevens' defense team. (202) The prosecutors complied with the judge's order and turned over the documentation; as such, the civil contempt charges were later lifted. (203)
On 7 April 2009, the District Judge set aside Senator Stevens' conviction. (204) The Judge also appointed an independent attorney to investigate possible prosecutorial misconduct. (205) Attorney General Eric Holder then dismissed the indictment and elected not to proceed with a new trial. (206) The Department of Justice also began its own internal investigation into alleged ethics violations and prosecutorial misconduct. (207)
After more than a year of enduring an investigation into alleged misconduct, one of the prosecutors involved in the case committed suicide. (208) On 15 November 2010, National Public Radio reported that the prosecutors will not face criminal contempt charges. (209) The Department of Justice's internal investigation also cleared the prosecutors of misconduct; however, the prosecutors may still face possible investigation and discipline from their local bar associations. (210)
B. United States v. Dr. Ali Shaygan
On 8 February 2008, Florida physician Dr. Ali Shaygan was charged with multiple counts of dispensing controlled substances and one count of dispensing controlled substances resulting in death. (211) On 26 September 2008, the United States Attorneys filed a Superseding Indictment, which added 115 more counts against Dr. Shaygan, bringing the total number to 141 counts. (212) After a four-week trial, Dr. Shaygan was acquitted of all charges on 12 March 2009. (213)
After the verdict, Dr. Shaygan filed a Motion for Sanction under the Hyde Amendment. (214) The Hyde Amendment provides that attorney's fees and related litigations costs may be awarded to a defendant who "establishes that the position the government took in prosecuting him was vexatious, frivolous, or in bad faith." (215) The district judge granted the Motion and imposed individual sanctions against the two United States Attorneys. (216) The district judge also ordered the United States to pay attorney's fees and costs from the date of the Superseding Indictment in the amount of $601,795.88. (217)
To support his ruling, the district judge set forth several acts of prosecutorial misconduct that occurred throughout the trial, which led him to believe that the decision to file the Superseding Indictment was done in bad faith. (218) Throughout the trial, the defense requested Brady material; however, the district judge found several instances where the prosecutors failed to turn over required Brady material. (219) For example, during one interview, a witness disclosed that Dr. Shaygan conducted a very thorough examination of her and that Dr. Shaygan was very interested in her well-being. (220) The prosecutors did not disclose these statements, arguing that they were not Brady material. (221) The district judge disagreed and found that these positive statements were very clearly Brady material. (222)
The prosecutors also disregarded the court's order to produce all reports prior to the beginning of the trial for an in camera review. (223) Instead, the prosecutors withheld two DEA reports. (224) The judge found that the reports contained Brady material and the failure to turn them over was willful, vexatious and in bad faith. (225)
The prosecutors also violated their discovery obligations when they failed to disclose to the defense that two witnesses were working with the government. (226) The prosecutors had the witnesses secretly tape the interactions with the defense counsel, thereby turning neutral witnesses into confidential informants. (227) In addition to not disclosing this information to the defense, the prosecutors also failed to disclose to the defense the witnesses' recorded statements at the time of their trial testimony, as required by the Jencks Act. (228) The court only became aware of this information when, on cross-examination, one of the confidential informants revealed that he had made a recording of his conversation with the defendant's lead attorney. (229) Even still, the prosecutors did not intend to disclose the recordings, which the judge declared was an "egregious abdication of their ethical obligations." (230)
On 9 April 2009, the district judge publicly reprimanded the United States Attorney and the Shaygan prosecutors in a scathing written opinion. (231) Judge Alan Gold wrote:
I enter a public reprimand against: (1) the United States Attorney and his senior staff members, for failure to exercise proper supervision over AUSA Karen Gilbert, the head of the Narcotics Section of the United States Attorney's Office; (2) AUSA Gilbert and her deputies for acting with gross negligence with regard to the events which ensued; and (3) the two prosecutors assigned in this case, AUSA Sean Paul Cronin and Andrea G. Hoffman. I conclude, without doubt, that AUSA Cronin, with the assistance of AUSA Hoffman, along with DEA Special Agent Christopher Wells, acted vexatiously and in bad faith in prosecuting Dr. Shaygan for events occurring after the original indictment was filed and by knowingly and willfully disobeying the orders of this Court. These lawyers are publically reprimanded and shall be sanctioned, as set forth in this Order. (232)
The United States also referred the matter to the Department of Justice's Office of Professional Responsibility for an independent investigation and disciplinary recommendations. (233)
As a result of the case, the prosecutor's supervisor, AUSA Gilbert, resigned as the Chief of the Narcotics section and one of the prosecutors, AUSA Cronin, requested a transfer out of the Criminal Division. (234)
C. United States v. 1LT Michael Behenna
Cases like those against Senator Stevens and Dr. Shaygan drew a tremendous amount of media attention and highlighted problems in the civilian justice system. At first glance, a military practitioner may feel comforted, knowing the military justice system prides itself on broad discovery. Unfortunately, this may lull the military practitioner into a false sense of security. As presented below, the military is not immune to issues surrounding discovery and is not without its own example of a high-profile case involving potential discovery violations.
On 20 March 2009, Army First Lieutenant (1LT) Michael Behenna was sentenced to 25 years in prison for killing an Iraqi detainee. (235) First Lieutenant Behenna was serving in Iraq as an Army Ranger when he took the detainee aside for questioning. (236) The detainee was Ali Mansur, believed to be an Al Qaeda operative who organized an attack on Behenna's platoon in April 2008. (237) That attack killed two U.S. Soldiers from Behenna's platoon. (238) Behenna shot the detainee twice: once in the head and once in the chest. (239)
The trial counsel's theory of the case was that it was premeditated murder, while defense argued that it was self-defense. (240) Trial counsel argued that Behenna believed that the detainee had killed two of his men and he was out for revenge. (241) Defense argued that Behenna had taken the man to question him about his terrorist activities; the detainee moved toward Behenna's weapon and Behenna shot him in self-defense. (242)
The trial counsel retained a bloodstain pattern expert who sat through the testimony of the witnesses. (243) When Behenna took the stand and described the shooting, the government's expert told the trial counsel that that Behenna's version of events was possible and was consistent with the forensic evidence. (244) The expert sent an email to the trial counsel that stated:
On Thursday afternoon when I heard Lt. Michael Behenna testify as to the circumstances of how the two shots were fired I could not believe how close it was to the scenario I had described to you on Wednesday. I am sure that had I testified I would have wanted to give my reenactment so the jury could have had the option of considering how well the defendant's story fit the physical facts. This, of course, would not have been helpful to the prosecution case. However, I feel that it is quite important as possible exculpatory evidence so I hope that, in the interest of justice, you informed Mr. Zimmerman of my findings. It certainly appears like Brady material to me. (245)
The expert never testified and his conclusions were not disclosed to the defense until after the trial had concluded. (246)
The defense argued that this information was Brady material and should have been disclosed to the defense prior to trial. (247) The defense moved for a mistrial but the trial judge denied the motion, saying the expert's testimony would not have changed the verdict. (248) The case is currently under review before the Army Court of Appeals. (249)
VI. DIFF'RENT STROKES
In addition to constitutional and rule-based requirements regarding discovery, a number of organizations and government agencies have developed internal policies and procedures affecting pretrial discovery practice in criminal cases. Although these policies differ in content and application, counsel on either side of a criminal case may benefit from an awareness of the guiding principles developed to manage the inevitable problems associated with pretrial disclosure. Often left with no clear answer as to whether material should be disclosed or withheld under law, practitioners may consult these sources when faced with questionable issues regarding discovery in practice.
Prosecutors, whether military or civilian, should begin by consulting their local bar and employer guidance for rules surrounding discovery. These additional rules may impose more stringent requirements for disclosure than those required by Brady and its progeny. (250) Prosecutors may also choose to examine the American Bar Association's Model Rules of Professional Conduct for additional guidance.
Many states have adopted the Model Rules of Professional Conduct, either in whole or in part. (251) Model Rule 3.8(d) describes a prosecutor's obligations regarding discovery and provides that prosecutors shall:
[M]ake timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal[.] (252)
As evident in the broad language of Model Rule 3.8(d), a prosecutor's duty to disclose evidence is more expansive than that required in Brady. Additionally, the Model Rules make no provision for whether the information is "material" to the defense; rather, it requires disclosure of "all evidence or information" which may negate the guilt or mitigate the offense of the accused. (253)
Additionally, prosecutors in the civilian federal system must follow the rules of their state as well as the local federal court rules in the jurisdiction in which they practice law. (254) Similarly, Air Force prosecutors are required to follow the rules of their state as well as the Air Force Rules of Professional Conduct, which provide the minimum standard of ethical conduct required. (255) The Air Force modified ABA Rule 3.8(d) and provides that trial counsel shall: [A]t sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the trial counsel, except when the trial counsel is relieved of this responsibility by a protective order of the tribunal[.] (256)
Although the Air Force only adopted the Model Rule with regard to sentencing, an Air Force practitioner must comply with Rule for Court Martial 701, which imposes the same broad requirements as the Model Rule. As discussed previously, Rule for Court Martial 701(a)(6) provides:
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; or (C) Reduce the punishment. (257)
Because of the various rules and requirements surrounding discovery, an Air Force practitioner is encouraged to consult all the sources to ensure proper compliance. Although Rules of Professional Conduct may not be punitive in nature, (258) noncompliance may result in severe administrative consequences, such as censure or disbarment. (259)
Although the Department of Justice has declined to follow ABA Rule 3.8(d), (260) the Department operates under well-established internal policies addressing the pretrial discovery contained in the United States Attorney's Manual that encourages discovery practices that are more liberal than those required by law. (261) The Manual is used by all federal prosecutors throughout the country and "contains general policies and some procedures relevant to the work of United States Attorneys' offices and to their relations with the legal divisions, investigative agencies, and other components within the Department of Justice." (262) With regard to disclosure of material evidence pretrial, the policy states:
[T]his policy encourages prosecutors to err on the side of disclosure in close questions of materiality and identifies standards that favor greater disclosure in advance of trial through the production of exculpatory information that is inconsistent with any element of any charged crime and impeachment information that casts a substantial doubt upon either the accuracy of any evidence the government intends to rely on to prove an element of any charged crime or that might have a significant bearing on the admissibility of prosecution evidence. (263)
The policy also provides prosecutors with guidance on other discovery-related issues such as the timing of disclosure, (264) supervisory approvals when dealing with classified information, (265) training (266) and obtaining potentially discoverable information from law enforcement agencies. (267) While encouraging seemingly more liberal discovery practices, the policy notes that issues such as witness security, preventing obstruction of future crimes and national security may justify limited or restricted disclosure. (268) In these instances, the policy directs, "[w]here it is unclear whether evidence or information should be disclosed, prosecutors are encouraged to reveal such information to defendants or the court for inspection in camera and, where applicable, seek a protective order from the court." (269) The policy adopts this approach to dealing with these issues in order to "ensure confidence in fair trials and verdicts." (270)
The message of the U.S. Attorney's Manual to prosecutors seems quite clear: if faced with a question of whether to disclose a piece of evidence or not, err on the side of disclosure unless there is a compelling reason to seek in camera review. Military and civilian defense counsel may eagerly cite the U.S. Attorney's Manual's provisions regarding discovery as persuasive authority in motions to compel where the government declines a request for production. On the other hand, the U.S. Attorney's Manual does not create substantive rights for the benefit of the criminally accused that are more expansive than provided by existing law. (271) Furthermore, the seemingly blatant discovery violations that occurred in the Stevens and Shaygan cases, noted above, occurred in spite of the policies in place.
The Department of Justice, however, responded to fallout from the Stevens case by establishing more explicit, comprehensive policies regarding pretrial discovery than those contained in the U.S. Attorney's Manual. On January 4, 2010, the Deputy Attorney General of the Department of Justice, David W. Ogden, issued a series of memoranda to all federal prosecutors addressing new department guidance on pretrial discovery. In the memorandum entitled Issuance of Guidance and Summary of Actions in Response to Report of the Department of Justice Criminal Discovery and Case Management Working Group, Ogden announced recent efforts by the Department to review and improve pretrial discovery practices in all components. (272) In early fiscal year 2010, Ogden convened a team of "senior level prosecutors" throughout all components of the Department for the purpose of examining Department policies and practices relating to pretrial discovery. (273) Ogden stated, "I called for the review in order to determine whether the Department was well positioned to meet its discovery obligations in future cases." (274) According to Ogden, "[t]he Working Group primarily focused on three areas pertinent to this determination: resources, training and policy guidance." (275)
The Working Group ultimately determined that discovery violations by Department prosecutors are rare in comparison to the number of cases prosecuted. (276) In this regard, Ogden stated, "It]his conclusion was not surprising and reflects that the vast majority of prosecutors are meeting their discovery obligations." (277) However, certain changes were made within the Department based upon the findings and suggestions of the Working Group. (278) First, Ogden released a comprehensive memorandum entitled Guidance for Prosecutors Regarding Criminal Discovery for the purposes of creating "the minimum considerations prosecutors should undertake in every case. (279) Discussed in greater detail later in this article, this memorandum is a must read for both military and civilian criminal practitioners as it definitively establishes the minimum considerations that a prosecutor must undertake regarding a number of very specific details of pretrial discovery. Second, the Department now requires each United States Attorney's Office to name a local discovery coordinator who must attend specialized training in the area of criminal discovery. (280) The coordinator will then return to his local district and act as an advisor with respect to discovery issues and develop an annual training program focusing on discovery obligations for his respective office. (281) Third, Ogden announced a number of Department-wide initiatives regarding discovery including training programs, online resources, and case management solutions. (282)
Through the efforts of the Working Group, a "consensus document" was created setting forth suggested guidelines for prosecutors to follow when making pretrial disclosure in all criminal cases. (283) Outlined in Ogden's memorandum, entitled Guidance for Prosecutors Regarding Criminal Discovery, "[t]he guidance is intended to establish a methodical approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department's pursuit of justice." (284) Commonly referred to in practice as "The Ogden Memo," Ogden announced a four-step "methodical approach" to making disclosures that all practitioners, whether prosecution or defense, should consider becoming familiar with and applying in all cases. (285) Similar to the provisions of the U.S. Attorney's Manual, the contents of the Ogden memo do not confer substantive rights on an accused and does not have the force of law. (286)
The first step of the methodical approach outlined in the Ogden memo is entitled "Gathering and Reviewing Discoverable Information." (287) During this step, prosecutors are encouraged to gather material from all members of the prosecution team. (288) In order to better define the prosecution team, the Ogden memo suggests a number of factors to consider with respect to each law enforcement agency participating in an investigation, including but not limited to, the role of the agency in the investigation, the prosecutor's knowledge of discoverable information contained in agency files, and the role of the agency in the decision-making processes in the case. (289) "Prosecutors are encouraged to err on the side of inclusiveness when identifying the members of the prosecution team for discovery purposes." (290)
The Ogden memo provides an excellent, user-friendly list of eight areas that a prosecutor should review for discoverable information in possession of the prosecution team. (291) The list includes specific guidance on making disclosure of material contained in investigative agency files, confidential informant files, evidence gathered during an investigation, information in the files of civil enforcement and regulatory agencies involved in parallel civil proceedings, substantive case-related communications, Giglio information and information contained in witness interviews. (292) With regard to Giglio information, the guidance establishes a thorough list of potential items of impeachment evidence that should be disclosed for both law enforcement and non-law enforcement witnesses. (293)
While all military practitioners should consider becoming familiar with every suggestion contained in the Ogden memo, the section in the Ogden memo regarding "Information Obtained in Witness Interviews" (294) is particularly helpful for military trial counsel. The Ogden memo strongly suggests that an agent be present for all witness interviews during which the prosecutor is present and memorialize the interview in a report that can be later turned over to the defense if required. (295) However, for trial counsel in a routine case, it is very unlikely in practice that this suggestion can be followed as agents in the military, unlike their civilian counterparts, do not often involve themselves in the trial preparation process. In this regard, the Ogden memo suggests, "[i]f exigent circumstance make it impossible to secure the presence of an agent during an interview, prosecutors should try to have another office employee present." (296) While not stated specifically in the Ogden memo, the implied reason for this suggestion is so that the employee can testify to any future inconsistencies by a witness and prevent trial counsel from becoming a witness. Therefore, particularly in cases where trial counsel has concerns that a witness may be hedging or likely to falsely testify, trial counsel should consider having a paralegal or other employee of the base legal office sit in on the interview.
Additionally, the Ogden memo provides two very good points of guidance regarding witness interviews. First, the memo states:
Some witnesses' statements will vary during the course of an interview or investigation. For example, they may initially deny involvement in criminal activity, and the information they provide may broaden or change considerably over the course of time, especially if there are a series of debriefings that occur over several days or weeks. Material variance in a witness's statements should be memorialized, even if they are within the same interview and they should be provided to the defense as Giglio information. (297)
With regard to interviews of witnesses by a prosecutor in preparation for trial, the Ogden memo also states:
Trial preparation meetings with witnesses generally need not be memorialized. However, prosecutors should be particularly attuned to new or inconsistent information disclosed by the witness during a pre-trial witness preparation session. New information that is exculpatory or impeachment information should be disclosed consistent with the provisions of USAM [section]9-5.001 even if the information is first disclosed in a witness preparation session. Similarly, if the new information represents a variance from the witness's prior statements, prosecutors should consider whether memorialization and disclosure is necessary consistent with the provisions [contained previously in the Ogden memo]. (298)
As previously stated, it is imperative that prosecutors remember to disclose Giglio information. While the rules of evidence in both the military and civilian federal system clearly authorize cross-examination regarding prior inconsistent statements as an authorized form of impeachment, a busy trial counsel faced with the inevitable pressures associated with preparing for a court-martial may forget that inconsistencies by a witness discovered while he is interviewing the witness must be disclosed as Giglio information. Though this is important when dealing with any witness, in practice, it will more frequently arise when dealing with confidential informants or victims. For example, a confidential informant may make inconsistent statements during trial preparation about his own culpability, the quantity of narcotics involved in a drug case, or the role of the accused. Likewise, a victim may become inconsistent about his description of events, identification of an accused, or add new details of a crime for the first time. Information of this sort is Giglio information and must be disclosed.
The second step outlined in the Ogden memo involves "Conducting the Review." (299) During this step, Ogden encourages prosecutors to not entirely delegate the function of reviewing information to determine if it constitutes discoverable information which must be disclosed to agents or paralegals. (300) Ogden points out that "prosecutors should not delegate the disclosure determination itself." (301)
The third step of the methodical approach outlined in the Ogden memo deals with "Making the Disclosure." (302) With regard to making disclosure, Ogden encourages broad and early disclosure of discoverable material. (303) In this regard, Ogden states, "Providing broad and early discovery often promotes the truth-seeking mission of the Department and fosters a speedy resolution of many cases. It also provides a margin of error in case the prosecutor's good faith determination of the scope of appropriate discovery is in error." (304) In this regard, civilian federal practice approaches the broad discovery requirements of the military justice system by encouraging open and early discovery.
The final step involves "Making a Record." (305) Noting that documenting compliance is a very important process of disclosing material to the defense, Ogden states:
Prosecutors should make a record of when and how information is disclosed or otherwise made available. While discovery matters are often the subject of litigation in criminal cases, keeping a record of the disclosure confines the litigation to substantive matters and avoids time-consuming disputes about what was disclosed. These records can also be critical when responding to petitions for post-conviction relief, which are often filed long after the trial of the case. Keeping accurate records of the evidence disclosed is no less important than the other steps [described in the Ogden memo], and poor records can negate all of the work that went into taking the first three steps. (306)
Just days after issuing memoranda regarding discovery, the Department of Justice announced the appointment and creation of a new, senior-level position within the Department responsible for implementing new department-wide training and resources intended to improve discovery practices within the Department. (307) Known as the National Coordinator of Discovery Initiatives, this position will also act as a liaison between U.S. Attorney's offices and "Main Justice" regarding certain discovery-related matters. (308)
While the Department of Justice has implemented guidance concerning discovery through the Ogden Memo, the Air Force has implemented the Air Force Standards of Criminal Justice to guide Air Force practitioners. (309) While the Standards are not as comprehensive as the Ogden memo, they emphasize the need to follow the rules surrounding discovery and expand the timelines of discovery by mandating disclosure before the deadlines specified in R.C.M. 701. (310)
VII. HOME IMPROVEMENT
Although the civilian and military justice systems have very similar rules involving discovery, there is one glaring distinction. Specifically, military law encourages liberal discovery across the board as an absolute binding mandate. (311) In fact, "[m]ilitary law provides a much more direct and generally broader means of discovery by an accused than is normally available to him in civilian courts." (312) In contrast, civilian courts may vary in their interpretation of certain discovery rules (313) and prosecutors may only be technically bound by internal procedures such as the Ogden Memo or the U.S. Attorney's Manual that do not provide substantive rights to a defendant. (314) Therefore, a military practitioner should generally resolve any questionable issue involving discovery in favor of disclosure directly to defense counsel or through in camera inspection by the trial judge.
Perhaps it is the clear mandate of liberal discovery in the military justice system that renders guidance similar to the Ogden Memo or the U.S. Attorney's Manual unnecessary in the military. On the other hand, one may conclude that recent attention to cases involving violations of the criminal discovery rules in both the civilian and military justice systems warrant more attention being placed on pretrial discovery from an educational and practical standpoint in the JAG Corps. The JAG Corps should provide more training on disclosure obligations and emphasize the importance of complying with discovery rules during initial JAG training. The military may also consider creating a working group similar to that of the Justice Department to address discovery matters and provide practical guidance for practitioners. The JAG Corps may even consider identifying one person in each office who can receive additional and continuing training on discovery. This person can then serve as a discovery point of contact for all prosecutors in the office.
At a minimum, a review of the eases involving Senator Stevens, Dr. Shaygen and 1LT Behenna should serve as eye-opening examples of the potential pitfalls associated with criminal discovery practice. The importance of a clear understanding of the rules cannot be overstated to both trial counsel and defense counsel as the consequences of noncompliance are too costly to ignore.
As discussed previously in this article, both the American Bar Association and the U.S. Department of Justice have created rules and procedures which encourage increased awareness of a prosecutor's disclosure obligations. In many cases, these new rules and procedures may impose more expansive disclosure obligations than imposed by both constitutional and rules-based requirements currently in place regarding disclosure. Although more rules may not deter a prosecutor who is intent on willfully violating a defendant's constitutional rights, it is illogical to presume that every violation of a prosecutor's Brady-Giglio obligations is an example of willful prosecutorial misconduct. Clearly, not all violations of disclosure obligations are the result of wayward prosecutors, intent on trampling on the rights of the criminally accused. Instead, violations of disclosure obligations may result in many cases from unintentional prosecutor error.
Even if unintentional, these errors can result in profound consequences for the criminally accused. In fact, unintentional errors regarding discovery obligations pose the greatest risk to an accused's rights. Consequently, both the civilian and military justice systems share an important interest in ensuring that all practitioners develop and apply a keen awareness of the rules regarding pretrial discovery to fully protect the rights of an accused. The continued efforts of the U.S. Department of Justice to increase awareness of discovery obligations, including more training, appointment of discovery coordinators and developing resources such as a discovery-related treatise, provide important examples for how to deal with this problem. Likewise, military justice practitioners should individually obligate themselves to gain a sound understanding of the discovery rules and develop common sense procedures to avoid errors in this area.
Below is a series of practical criminal discovery tips for both military trial counsel and defense counsel. Before discussing these tips, however, one area of the discovery practice applicable to both trial counsel and defense counsel deserves extra emphasis. "Giglio material" is an often overlooked area in military discovery practice but can have grave consequences.
A. Giglio Material
As noted previously, the Supreme Court concluded in Strickler that the first step to determining whether a Brady violation occurred requires that the evidence at issue be favorable to the accused, either because it is exculpatory, or because it is impeaching. (315) A close examination of cases involving criminal discovery suggests a very slight distinction between exculpatory information and impeachment information in practical application. Exculpatory evidence primarily includes evidence which tends to directly negate an element of the charged offense by its very nature. For example, an accomplice's statement accepting responsibility for killing a victim tends to directly contradict proof that the accused committed the crime, as was the case in Brady. (316) Likewise, evidence that someone other than the accused committed the charged offenses tends to undermine the prosecution's ability to prove all elements beyond a reasonable doubt. (317)
In contrast, impeachment evidence consists of evidence which tends to impeach or contradict a single government witness. (318) For example, police reports prepared pretrial indicating that a key prosecution witness was unable to identify the defendant as the perpetrator after the crime occurred would be inconsistent with the witness's trial testimony that the accused committed the charged offenses. (319) The police reports would provide impeachment information for the defense and would therefore be discoverable under Giglio. (320) The Supreme Court, however, has expressly refused to recognize a distinction between exculpatory evidence and impeaching evidence. (321) Therefore, failure to disclose impeachment evidence will be viewed with no less significance than a failure to disclose exculpatory evidence, and vice versa. (322)
However, the requirement of Giglio regarding a prosecutor's obligation to disclose impeachment evidence is frequently overlooked or applied too narrowly. In practice, attorneys tend to speak of "exculpatory material" or "Brady material" in formal motions or requests as well as during verbal discussions with opposing counsel. Perhaps this trend is rooted in the fact that the Brady opinion is widely cited and rightly viewed as a historical starting point in the development of case law involving disclosure obligations. (323) While defense counsel may be successful in obtaining impeachment information using this language, this approach fails to properly emphasize the importance of the disclosure requirements under Giglio in every single case. Consequently, both trial counsel and defense counsel should abandon the broad use of the terms "Brady material" and "exculpatory material" in favor of using "Brady-Giglio material" in an effort to give greater emphasis to the disclosure obligations under Giglio. This approach is frequently used in practice by civilian federal prosecutors, possibly in response to the increased emphasis on all disclosure obligations imposed by the U.S. Attorney's Manual and the recent Ogden Memo.
This proposed change is more than an insignificant play on words for two reasons. First, at the most basic level, using "Brady-Giglio material" rather than "Brady material" or "exculpatory material" will generally increase awareness of the importance of the requirements of Giglio regarding impeachment evidence. While even the newest criminal practitioners may be aware of the well-cited and oft-taught holding in Brady, use of Brady-Giglio on a regular basis will encourage practitioners to develop a sound grasp of the holding in Giglio as well. As noted previously, the Supreme Court sees no distinction in terms of the importance of impeaching material and exculpatory material. (324) Consequently, practitioners should treat the two with an equal level of importance even if that simply starts with changing the way counsel communicate with each other and the court.
Secondly, the requirements of Giglio deserve increased emphasis because in a routine, single-defendant criminal case, there is a greater likelihood that a practitioner will encounter impeachment evidence of a witness than exculpatory evidence. A prosecutor will not always possess facially exculpatory evidence such as a statement by an accomplice or a witness accepting responsibility for a crime and exculpating an accused. (325) However, the prosecution must always use witnesses to prove every criminal case. These witnesses quite frequently carry their own baggage into a proceeding, including bias, prior inconsistencies, or grants of immunity. Impeachment evidence is often subtle and may not facially exculpate the defendant of all charges, but its importance to both trial counsel and defense counsel in terms of disclosure cannot be overstated. For defense counsel, a thorough understanding of the requirement of Giglio is profoundly significant if one intends to gain the full benefit of discovery in order to adequately protect a client's interests by thoroughly preparing for cross-examination of the trial counsel's witnesses. A complete appreciation for the requirements of Giglio is equally important to trial counsel, as the trial counsel is charged with an obligation to exercise "due diligence" in obtaining discoverable information, including impeachment evidence, that may be in the possession of outside law enforcement agencies involved in the case. For example, if an investigating law enforcement agency is in possession of impeachment information on a confidential informant who is a testifying witness, the trial counsel is obligated to obtain the information and likely disclose it to defense counsel. (326)
Although the examples of discoverable impeachment evidence can be found in published decisions in both civilian and military courts, the examples are more plentiful in the civilian system. With standing trial courts from 94 federal judicial districts and 13 federal circuit courts of appeal publishing decisions, a military practitioner can gain helpful insight, as well as a bank of persuasive authority, to cite during Brady-Giglio challenges in military courts by examining civilian federal cases involving disclosure of impeachment evidence. This is especially true in light of the fact that the Military Rules of Evidence originate from and frequently emulate the Federal Rules of Evidence used in the civilian criminal justice system. (327) Note, however, that military courts operate under a liberal discovery mandate that does not exist in the civilian justice system and, consequently, military courts may be more inclined to err on the side of disclosure than civilian courts.
Moreover, in order to understand disclosure requirements of Giglio, one must have a sound understanding of what constitutes impeaching evidence under the Military Rules of Evidence. (328) Nevertheless, this article is not intended as a comprehensive guide to the rules of evidence regarding impeachment. While other well-written resources provide a more complete picture of what the rules regarding impeachment evidence authorize, (329) stated briefly, a witness may be impeached in one of many different ways. Some of the most commonly authorized methods of impeachment include cross-examining a witness with evidence of bias, (330) prior misconduct, (331) and prior inconsistent statements. (332) While the examples of discoverable impeachment information are virtually endless, this article will examine some of the more common examples seen in practice.
A witness's potential bias against an accused may provide fertile ground for discoverable impeachment information and is possibly the most common source of discoverable impeachment information. Bias exists in many forms and arises where there is evidence that a witness possesses some underlying motivation to fabricate testimony or exaggerate facts against an accused. (333) In its most basic form, discoverable evidence of bias may include evidence suggesting that the witness simply does not like the accused (334) or is motivated by revenge against the accused. (335)
Also, all promises made by the government to a witness will generally be discoverable Brady-Giglio material. (336) While this rule applies to promises made to all witnesses, in practice, discovery issues surrounding promises to witnesses frequently arise in cases involving confidential informants. For example, disclosure may be required of money received by a confidential informant in exchange for testimony as well as the nature of any promises of leniency on pending charges by the government. (337) Secret, undisclosed promises to witnesses are not authorized. (338) The government's agreement to make favorable recommendations at sentencing must also be disclosed. (339) In fact, the government's agreement to assist a witness in seemingly unrelated matters such as forfeiture proceedings should also be disclosed. (340) Therefore, trial counsel should disclose all promises of leniency made to a witness in writing or verbally even where the terms of the promise may have been made to the witness's attorney. Likewise, defense counsel should be diligent in obtaining this information through specific requests during pretrial discovery.
Courts may also require disclosure of promises made to a confidential informant in the past that may be unrelated to the charges pending against the accused. (341) Such evidence may tend to demonstrate bias by reflecting an ongoing, historical relationship between law enforcement and the confidential informant in which the confidential informant has come to expect certain benefits from law enforcement in exchange for cooperation. (342) Thus, trial counsel should become informed about the prior relationship between a confidential informant and an investigating law enforcement agency to determine what payments have been made to the informant in the past and what promises have been made in previous cases. When witness security or obstruction of ongoing investigations is an issue, trial counsel should consider seeking an in camera, ex parte review of the information so that the court can make the decision as to what should and should not be disclosed.
Furthermore, the prosecution must also disclose benefits provided to witnesses during an investigation or trial preparation including matters as far-ranging as conjugal visits with members of the opposite sex to more mundane benefits such as unsupervised telephone privileges. (343) The government is also required to disclose immunity agreements with witnesses. (344) Trial and defense counsel should also note any close relationships between the investigating officer and a confidential informant that go beyond professional involvement. (345) As a somewhat extreme example of a close relationship, at least one civilian federal court has found a law enforcement officer's romantic involvement with a cooperating witness may be considered Brady-Giglio material. (346)
A witness's bias or motivation to lie is often harder to detect as demonstrated by the case of United States v. Mahoney. (347) In Mahoney, the accused was convicted of wrongful use of cocaine. (348) Trial counsel failed to disclose a letter written by the base staff judge advocate (SJA) to the Numbered Air Force (NAF) SJA in which the base SJA was critical of the government's forensic toxicologist. (349) In the letter, the SJA criticized the government's expert for showing a lack of "enthusiasm or conviction" about the Air Force drug testing program in prior cases. (350) The SJA was also quite critical of the forensic toxicologist's testimony during a prior court-martial in which the toxicologist, "criticized the value of studies normally used by forensic toxicologists to draw conclusions and render opinions based on certain fact scenarios-to the point he could no longer credibly rely on these studies as an expert witness for the Government." (351) Of particular importance for disclosure purposes, the SJA questioned why the Air Force would continue to employ the forensic toxicologist if his testimony reflected his "honestly held opinion." The letter was "disseminated widely at the Drug Testing Laboratory and was the subject of formal training for [Drug Testing Laboratory experts]" and the witness was aware of its existence. (352)
The forensic toxicologist testified as an expert at trial and made favorable statements about the Air Force drug testing program including the lab processes commonly used by the Air Force. (353) The defense learned of the SJA's letter post-conviction and requested its production. (354) The Air Force Court of Criminal Appeals examined the letter in camera and ordered the letter sealed. The court determined, inter alia, that the SJA's letter was not discoverable Brady-Giglio material. (355) On appeal, the U.S. Court of Appeals for the Armed Forces disagreed. (356) Noting that the letter had been widely disseminated, the court stated that "appropriate Government inquiry of [the forensic toxicologist] should have led to discovery of the letter." (357) The court reasoned,
[The SJA's letter] arguably created a significant motive-the desire to receive favorable work evaluations and keep his job--for Dr. Mobley to testify positively about lab procedures and underlying scientific studies in future courts-martial. Cross-examining Dr. Mobley about the letter may have revealed this motive, serving to damage Dr. Mobley's credibility, and thereby enhance the defense's case. In short, the letter's substantial impeachment value undermines confidence in the trial's outcome. (358)
Thus, the court concluded that the SJA's letter was discoverable Brady-Giglio material and set aside the findings and the sentence. (359)
The court in Williams previously emphasized the importance of the prosecutor's burden of exercising "due diligence" (360) to obtain impeaching information from all entities that are "closely aligned with the prosecution," (361) including the actual witness, as well members of the trial counsel's own office. It is very unlikely, however, that the Brady-Giglio material at issue in Mahoney was included in the trial counsel's case file as it was a letter between the base SJA and the NAF SJA about the expert witness's performance in unrelated, prior courts-martial. Nevertheless, the court mandated disclosure. Additionally, the court's statement that "appropriate Government inquiry of [the forensic toxicologist] should have led to discovery of the letter" suggests that trial counsel should always inquire of witnesses about potential areas of bias and other impeaching information as part of routine trial preparation. (362)
A witness's prior inconsistent statements may also constitute Brady-Giglio material. (363) Prior statements of a witness that are materially inconsistent with either the witness's trial testimony or other pretrial statements must be disclosed. (364) For example, a failure to disclose a cooperating witness's prior misidentification of an accused may constitute a Brady violation. (365) Also, in addition to demonstrating bias, information that an informant was paid for his cooperation may also be discoverable as a prior inconsistent statement when the witness testifies at trial that he was never paid by the police. (366) Moreover, trial counsel must disclose statements made by a witness during an Article 32 hearing that are inconsistent with the witness's trial testimony. (367)
Of note, there is no legally defined time limitation on what constitutes a "prior" inconsistent statement in relation to when a trial begins. Witness statements tend to evolve from the initial stage where the witness is interviewed, usually by law enforcement, to the eleventh hour trial-preparation stage when the witness is being interviewed and prepared for testimony by trial counsel. Statements made by witnesses to trial counsel during trial preparation that are materially different from any previous statement the individual has made may be deemed discoverable as prior inconsistent statements. Having another person present and taking notes during trial preparation interviews may be a prudent practice for trial counsel. Ideally, having a law enforcement agent who can memorialize the statements in a report and testify if necessary is ideal, though the time crunch of trial preparation and logistics often prevent this practice. Indeed, some civilian prosecutors make it a standard practice to always assign the task of taking notes during trial preparation interviews to another person, such as a paralegal, so that the prosecutor does not become a witness and her notes do not become discoverable.
Given the broad scope of potential cross examination authorized by M.R.E. 608(b), evidence of prior bad acts by a prosecution witness may also constitute Brady-Giglio material. (368) For example, in United States v. Banks, the prosecution failed to disclose the fact that the testifying DEA chemist was under internal investigation for misuse of her government travel card at the time she conducted lab tests on the narcotics at issue. (369) The United States Court of Appeals for the Seventh Circuit affirmed the district court's conclusion that this evidence constituted discoverable Brady-Giglio material. The Banks decision is similar to the approach adopted by the Court of Military Appeals in United States v. Green. (370) In Green, trial counsel failed to disclose a CID agent's prior history of non-judicial punishment for fraternization, filing a false travel voucher, and larceny. (371) While the court found the error harmless because the CID agent's credibility was not in issue, the information was deemed to be discoverable. (372)
As in other areas involving Brady-Giglio material, cases involving confidential informants are typically replete with examples of discoverable information regarding prior bad acts. For example, evidence that confidential informants were stealing narcotics during controlled buys and using drugs while working for law enforcement is discoverable. (373) Similarly, a confidential informant's prior use of aliases and engaging in untruthful conduct such as counterfeiting may constitute discoverable impeachment information. (374) Stated succinctly, if the prosecution or any person or entity "closely aligned with the prosecution," (375) possesses evidence of prior bad acts by a confidential informant, it is likely discoverable Brady-Giglio material.
Prior bad acts by law enforcement officers who testify as witnesses can present unique problems for trial counsel as well. (376) In light of the "due diligence" standard put forth in Williams, trial counsel must become aware of information in a law enforcement officer's background, such as personnel actions or complaints, which negatively impact the officer's credibility even if the information is in possession of a law enforcement agency involved in the investigation and not the trial counsel's office. (377) In fact, an officer's knowledge of his own ongoing criminal conduct at the time of his testimony may be imputed to trial counsel for purposes of disclosure, even if the trial counsel is completely unaware of its existence. (378) To this end, trial counsel will typically receive derogatory data on all military law enforcement agents involved in a case that are likely to be witnesses. On the other hand, this "derog data," through no fault of anyone in particular, may not contain very recent, real-time information as it is usually received some time before the actual trial. Additionally, the "derog data" may not be comprehensive and may not contain certain information about an officer's background constituting Brady-Giglio material.
Prudent trial counsel will not simply rely on "derog data" for purposes of making disclosure. Rather, trial counsel should consider personally interviewing law enforcement witnesses pretrial about any derogatory information in the officer's background. Inquiry should be made regarding any personnel actions, investigations or complaints against the officer which negatively impact the officer's credibility in any respect. Trial counsel should also consider preparing a Memorandum of Record for the prosecution file documenting these conversations with law enforcement agents, even when no additional information exists.
Trial counsel must remain mindful, however, that law enforcement officers often work in a hostile environment involving a criminal element of society that does not always observe the truth. Hence, unfounded complaints of wrongdoing against officers can be common. These unfounded or unproven acts of misconduct may not be admissible. (379) On the other hand, because the rules of discovery in the military are focused on "equal access to evidence," (380) the determination of whether trial counsel must make disclosure of potential Brady-Giglio material, "is not focused solely upon evidence known to be admissible at trial." (381) As a result, trial counsel may not withhold potential Brady-Giglio material simply because trial counsel unilaterally does not believe the information is admissible at trial. (382) Instead, trial counsel should create a plan of action in dealing with these issues that remains compliant with trial counsel's obligation to proactively disclose Brady-Giglio material consistent with the liberal demands of military law but still preserves the right of the government to seek suppression of wholly irrelevant matters at trial.
Trial counsel should not decide questionable discovery issues alone, but instead, should follow a three-step approach to ensure they are complying with the rules of discovery. First, and foremost, trial counsel should discuss the matter with a supervisor. Internal practices and policies of an office tend to vary from base to base and it is never a good idea for trial counsel to gain a reputation for keeping his or her supervisors uninformed about potentially volatile issues in a case. Secondly, trial counsel should become intimately familiar with the provisions of Rule 701(g)(2) regarding the trial court's discretion to resolve disclosure issues through ex parte in camera submissions of possible Brady-Giglio material. While the defense may also request ex parte in camera review of derogatory information, (383) nothing precludes trial counsel from being proactive and seeking the court's input on questionable discovery issues. (384) This approach will ensure that trial counsel can never be accused of failing to uphold the liberal mandate regarding discovery in the military system. Furthermore, the authors propose that a trial judge may be more willing to limit or restrict disclosure, rather than make full, unencumbered disclosure, if trial counsel takes an open, upfront approach that shows a willingness to not engage in "gamesmanship." Third, if the trial court orders disclosure of the information, trial counsel should file a motion to suppress at the first available opportunity. Although certain areas of the military justice system seem to liberally favor the defense, trial counsel may still zealously represent the interests of the United States by seeking to exclude wholly irrelevant evidence from the truth-seeking function of the trial process.
As with all other impeaching information, a prior finding of incredibility in an official proceeding can potentially have a devastating impact on the credibility of a law enforcement witness, even if the finding was made in a prior matter completely unrelated to the case at issue. (385) Unlike ordinary lay witnesses, law enforcement witnesses often have a history of testifying before various tribunals due to the nature of their employment. The same is true in practice of certain experts, such as forensic toxicologists. While civilian courts are somewhat divided on the issue, there is authority for the position that defense counsel may cross-examine a law enforcement witness about a prior finding of incredibility. (386) Therefore, such a finding should be disclosed to the defense.
Where a military law enforcement agent is a key witness, defense counsel may consider inquiring of other defense counsel from prior bases where the officer has worked regarding any prior findings of incredibility. Prudent defense counsel should obtain transcripts if possible where a prior finding of incredibility exists in preparation for cross-examination. The possible use of prior findings of incredibility for impeachment purposes also highlights the importance of military defense counsel developing relationships with local, state, and federal public defenders in their geographic area. When faced with an unknown civilian law enforcement officer as a key government witness, defense counsel may call upon these resources for potentially valuable cross-examination material regarding prior findings of incredibility or other authorized areas of impeachment as local practitioners may have encountered the specific officer previously.
Note, however, that the issue of prior findings of incredibility may be used by trial counsel as well where the defense calls an expert witness who routinely testifies in court. (387) As a result, trial counsel should also diligently inquire into the background of defense experts for possible impeachment evidence using all available resources. Particularly in cases involving child pornography or computer crimes where experts are frequently used in the civilian system, the prosecutors in the local United States Attorney's Office may be a great source of background information about the defense's expert witness.
Three additional areas of potentially impeaching information may lead to discovery disputes. First, the prosecution may be required to disclose information which calls into question a witness's general capacity to observe certain relevant events. Hence, trial counsel should disclose evidence that the prosecution's witnesses were high on drugs (388) or mentally unstable at relevant times. (389) Likewise, evidence that tends to impeach a witness's statement that he was physically located in a position to observe key events is Brady-Giglio material. (390) Third, the prosecution must disclose evidence from other witnesses that is inconsistent with the testimony of a government witness. (391)
B. Tips for Prosecutors
1. Document Compliance
Fortunately, the criminal justice system affords all defendants a presumption of innocence and no defendant or accused is obligated to present evidence to disprove guilt. The same is not always true of a prosecutor who has been accused of violating a discovery rule. In short, trial counsel must be prepared to defend himself from allegations of discovery violations by the defense. Perhaps the best way for a prosecutor to prepare for such a defense is to methodically document compliance with the discovery rules in every case. At the most basic level, trial counsel must document compliance with the discovery rules by maintaining copies of all correspondence with defense counsel, including disputed items. Trial counsel should also document impeachment evidence obtained from witnesses during trial preparation and should document the advice of supervisory attorneys regarding questionable discovery issues through Memoranda of Record.
Most importantly, trial counsel should develop a discovery control system. The discovery control system should consist of a file marked as "discovery control" and should serve as a quick reference resource for every piece of discovery that has been turned over to the defense. The discovery control file should contain a copy of all discovery sent to the defense as well as a meticulously drafted certificate of service which itemizes each disclosure. To create a discovery control copy, trial counsel should make two copies of all discovery material: one to be sent to the defense and one to be maintained by trial counsel as a discovery control copy. Trial counsel should affix identical page numbers to both the copies.
Trial counsel should likewise be very meticulous in documenting what exactly is turned over to defense counsel on certificates of service. The certificates of service should not merely be a recitation of the contents. Instead, the certificates of service should include the date of disclosure as well as a brief description of all documentary and non-documentary evidence, including such information as the total number of pages, the total number of photographs and a brief description of what is contained on any compact discs. Each certificate of service should be attached to the top of the discovery control copy and placed in the discovery control file. Since trial counsel's discovery obligation is a continuing duty, future disclosures to the defense should be handled in the same manner.
For example, in a hypothetical case, trial counsel has provided discoverable documents consisting of AFOSI reports and witness statements to defense counsel on 21 February 2011 and 15 March 2011. During both disclosures, trial counsel created two copies: one for the defense and one for the discovery control file. Identical numbers have been affixed to each copy. Trial Counsel attached a detailed certificate of service to top of both copies. Going into trial, the discovery control file now contains two discovery control copies, one for each disclosure, with detailed certificates of service attached to each. In the middle of trial, the defense claims that the prosecutor failed to turn over a witness statement. After requesting a brief moment to respond from the trial judge, trial counsel grabs his discovery control file, references the detailed certificates of service and determines that disclosure of the witness statement was made on 21 February 2011. Trial Counsel then obtains the discovery control copy for the 21 February 2011 disclosure and determines that disclosure of the witness statement occurred on page 23 of the 54 pages of documents disclosed to the defense on that date. Therefore, trial counsel may articulately respond, "Your honor, I provided the defense the witness statement on 21 February 2011. On that date, I provided the defense with 54 pages of discovery. The witness's statement is contained in page 23."
In addition to a discovery control system, trial counsel should endeavor to document and disclose impeachment information obtained from witnesses during trial preparation by trial counsel or other members of the prosecution team. Where, for example, AFOSI has conducted multiple interviews of a witness, inconsistencies may be evidenced in sworn witness statements. However, in preparation for trial, trial counsel is often faced with interviewing witnesses without an agent present and without always obtaining a sworn statement from the witness. While trial counsel should always assert work-product privilege regarding his own notes taken during a trial preparation interview, Brady and Giglio demand that inconsistencies or admissions of untruthfulness affecting the witness's credibility must be disclosed to the defense regardless of when the prosecutor obtains the information. In order to meet this requirement, trial counsel may document and disclose this information to the defense via letter or email and maintain a copy for the discovery control file.
For example, in a hypothetical scenario, trial counsel is interviewing a victim of sexual assault in preparation for trial the following day. The victim has previously provided two written, sworn statements to AFOSI in which she states both that she was completely sober on the evening of the assault and that the alleged rapist identically matched the description of the accused. During trial preparation the night before trial is to begin, the victim states, for the first time, that she drank a six-pack of beer prior to the assault and the offender was slightly shorter than the accused. To comply with the discovery rules, trial counsel should send an email to defense counsel summarizing the witness's inconsistent statements after the interview noting the date, time and location of the interview. Trial counsel should also print a copy of the email for the discovery control file.
2. Ensure Compliance by All Law Enforcement Agencies
Trial counsel is directly responsible for disclosure of Brady-Giglio material that is in possession of law enforcement agencies or other entities "closely aligned with the prosecution.'' (392) The fact that trial counsel is subjectively unaware of the existence of the information is irrelevant. (393) Law enforcement agencies may resist turning over files, in particular confidential informant files, to anyone, including trial counsel. Trial counsel cannot allow a law enforcement officer to determine what is discoverable and what is not; the burden is on trial counsel to not only disclose the information but to seek it out. Trial counsel should remember that if a worst-case scenario such as what happened in the Senator Stevens or Dr. Shaygan cases occurs, trial counsel's name will likely be cited in the published opinion on the matter more than anyone else involved. When issues arise that cannot be resolved, seek supervisory intervention.
3. Do Not Go It Alone on Difficult Discovery Matters or Ethical Issues
A review of cases from the civilian justice system reveals that egregious Brady violations can result in referral to either the prosecutor's state bar or, for civilian federal prosecutors, referral to the Department of Justice's Office of Professional Responsibility. (394) To avoid allegations of ethical impropriety regarding the discovery process, trial counsel should always seek the advice of a more experienced supervisory attorney when faced with a questionable discovery issue or ethical question of any kind. Supervisory attorneys often have more litigation experience and are better able to foresee problem areas in the discovery process than a newly assigned trial counsel. For example, if trial counsel receives a witness statement prior to trial that is definitely impeaching information but also has the potential to damage national security, trial counsel should immediately seek the advice of supervisors before deciding whether to disclose the information to the defense. Going it alone on ethical questions is never a good idea.
Because of the potential consequences of a discovery violation together with the legal mandate of liberal discovery in the military justice system, some practitioners may rightfully conclude that open discovery is the best policy. (395) However, as an advocate for the government, trial counsel remains obligated to diligently represent the interests of his client and ensure that victims of crime are not subjected to future harm, national security is not damaged, and ongoing investigations remain unhindered. Where these issues are legitimate concerns, a prosecutor is not without legal options to both ensure compliance with the discovery rules and prevent future harm. Trial counsel should consider asking for, at a minimum, limited or restricted disclosure after an ex parte in camera review under 701(g)(2). Although the authors do not advocate overburdening courts by placing every piece of potentially discoverable evidence before a trial judge, when seriously in doubt, trial counsel should utilize 701(g)(2) and proactively seek in camera review of the potential Brady-Giglio material. This approach will ensure that trial counsel does everything authorized by the rules to ensure compliance with his disclosure obligations while protecting witnesses, national security, and ongoing investigations.
4. Do Not Withhold Evidence Based on a Lack of Prejudice to the Defense
A review of cases reveals numerous instances where courts found that information should have been disclosed as Brady-Giglio material but, in the end, concluded that there was no harm to the accused for various reasons. (396) It is simply unwise, however, for a prosecutor to withhold an otherwise discoverable piece of evidence due to the prosecutor's unilateral, pretrial belief that failure to disclose the piece of evidence will not be deemed prejudicial. Given the fast-paced, unpredictable nature of a jury trial, it is unlikely the wisdom of Confucius or the prophetic powers of Nostradamus could even determine conclusively whether the lack of a piece of evidence will be prejudicial or non-prejudicial to an accused, even in a case of minimal complexity. Indeed, some courts have specifically noted that prosecutors should not choose to withhold evidence pretrial based on presumptions that the decision will be viewed favorably at a later time but should, instead, disclose evidence even if it is even "potentially exculpatory or otherwise favorable." (397) Additionally, even if a nondisclosure does not result in a conviction being set aside, a prosecutor still risks other consequences, such as referral to his state bar for investigation.
C. Tips for Defense Counsel
1. Prepare Thorough Discovery Requests
Although the prosecution is required to disclose certain evidence even in the absence of a defense discovery request, the standard used to determine whether a discovery violation has occurred differs depending on whether there was a specific defense discovery request. (398) When there is a specific defense request for discovery, courts will apply a lower standard of materiality than if there is no specific request for discovery. (399) In cases where the defense has made a specific request for discovery, "the failure to make any response is seldom, if ever, excusable." (400) Further, as discussed previously, a military accused is entitled to an even higher standard of review when requested evidence is not disclosed and a military court will grant relief to an accused if there is any reasonable doubt that the outcome of the proceeding would have been different. (401) As such, it is important for defense to prepare thorough discovery requests to ensure that they have requested all relevant evidence.
Although the Department of Justice issued the "Ogden Memo" to assist federal prosecutors in the field, defense counsel, be they federal or military, can also benefit from the Ogden Memo and use it to assist in developing comprehensive discovery requests. (402) The Ogden Memo lists several items a prosecutor should review, but a specific defense request for the same information will hopefully ensure that the prosecutor does not overlook any important information. For example, defense counsel should request all the discoverable information relating to confidential informants, including immunity agreements and payment information. Defense should also request substantive case-related communications, whether those communications are in emails, memoranda, reports, or notes.
Defense should also request complete Giglio information on all testifying witnesses, whether those witnesses are law enforcement witnesses or not. The Ogden Memo includes several examples of Giglio information, and all items should be specifically requested by the defense. Those items include: prior inconsistent statements; statements reflecting witness statement variations; any benefits provided to the witness, such as dropped or reduced charges, immunity, expectations of downward departures or motions for reduction of sentence, assistance in a state or local criminal proceeding, considerations regarding forfeiture of assets, stays of deportation or other immigration status considerations, S-Visas, monetary benefits, non-prosecution agreements, letters to other law enforcement officials on behalf of the witness, relocation assistance, and consideration or benefits to other parties; conditions affecting the witness's bias, such as animosity toward the defendant, animosity toward a group of which the defendant is affiliated, a relationship with a victim, or known but uncharged criminal conduct; prior acts under Federal Rule or Military Rule of Evidence 608; prior convictions under Federal Rule or Military Rule of Evidence 609; and known substance abuse or mental health issues that could affect the witness's ability to perceive and recall events. (403) In fact, both trial counsel and defense counsel can benefit from creating a discovery checklist based on the items contained in the Ogden Memo, together with items required to be disclosed as outlined in published military cases.
Should prosecutors be reluctant to provide any of the requested information, defense counsel can use the Ogden Memo to argue for its production. Although the Ogden Memo is not binding authority, the United States Deputy Attorney General issued the guidance based on the findings of a working group consisting of the most experienced federal prosecutors in the country. (404) For example, if a prosecutor refuses to produce information relating to a witness's expectations regarding reduced charges, defense counsel can argue the rules surrounding discovery. Additionally, defense counsel can quote the Ogden Memo as persuasive authority and argue that even the most experienced federal prosecutors in the country agree that this is likely discoverable material.
2. Do Your Own Homework
Although a prosecutor has an obligation to disclose exculpatory and impeachment evidence, a prudent defense counsel will also take it upon himself to look for this evidence independently. Often, a prosecutor may not know that certain evidence exists. Although ignorance does not abrogate a prosecutor's discovery obligations, a defense counsel should seek out all information that may assist his client. Diligent work by a defense counsel may result in relief for his client.
For example, in United States v. Roberts, the defense counsel interviewed the lead AFOSI agent. (405) During the interview, the defense learned that the agent had previously been disciplined, but the agent provided no further information. (406) The prosecutors refused to disclose the information and the defense made a motion to compel discovery. (407) The military judge reviewed the files, which revealed that the agent was previously under investigation and had lied to investigators. (408) The military judge erroneously believed that information did not constitute impeachment evidence and denied the defense motion. (409)
C.A.A.F., however, disagreed with the military judge's findings. (410) The court held that the information was material to the defense's preparation of the case because the information was relevant to the agent's credibility. (411) It also pointed out that the military judge improperly limited the scope of discovery to whether the information would be admissible at trial. (412)
Although the military judge erred by denying the defense motion, C.A.A.F. found it to be harmless error. (413) The court reasoned that the error was harmless because the agent was not the "linchpin" in the government's case and there were nine other witnesses who testified against the accused. (414)
Although C.A.A.F., in Roberts, did not overturn the conviction, defense counsel can use this opinion to his advantage at the trial level. Defense counsel must argue for production of evidence whether it is exculpatory or impeachment evidence. Additionally, defense counsel must ensure the trial judge understands that evidence does not need to be admissible in order to be discoverable.
3. Document and Know Your Remedies
In much the same way that a prosecutor should document compliance with discovery, a defense counsel must also keep meticulous records of correspondence with trial counsel. Defense counsel should create and maintain their own discovery control file and include copies of all evidence, documents, and emails received. Defense should also document phone conversations with trial counsel regarding discovery and keep copies of all email communication with trial counsel.
If defense counsel do not receive discovery in a timely or complete manner, they should consider filing a motion to request appropriate relief. They should include all documentation they have gathered to support their position and request relief commensurate with the perceived discovery violation. The military judge has broad discretion to order relief and may impose remedies ranging from an order to produce discovery to a complete dismissal of charges. (415)
D. The Way Forward
A comparison between the civilian federal and military justice systems regarding criminal discovery practices should never be viewed as a mere academic exercise by military or civilian practitioners. As a military attorney, it is very easy to become comfortably limited to researching and resolving legal issues based solely on what military appellate courts hold and ignore the persuasive value of civilian federal court decisions. However, after just a cursory review of civilian federal case law, a military attorney will quickly learn that civilian federal courts address discovery disputes far more frequently than military courts. Although this may simply be a product of the larger number of sitting civilian federal courts operating caseloads on a daily basis, it may likewise be an indication that criminal discovery violations are occurring on a far greater scale than is presently realized.
Becoming familiar with developments in criminal discovery case law from civilian federal courts can benefit military attorneys by providing a wealth of persuasive authority when dealing with any potential discovery dispute. When faced with a questionable discovery issue, it is very likely that a civilian federal court has addressed the issue. With this persuasive authority in hand, a military attorney may be better prepared to articulate his position to a military judge in a more effective manner.
The benefits of a comparison between the two systems can be equally beneficial to civilian attorneys as well. In civilian practice, the dealings of military appellate courts are viewed in many ways as foreign, seldom-cited territory. However, in the wake of U.S. v. Stevens and U.S. v. Shaygen, criminal discovery practices, especially in the civilian system, have come under a tremendous amount of scrutiny and many believe that the system is fundamentally broken. Indeed, retired Supreme Court Justice John Paul Stevens recently encouraged Congress to pass stricter laws authorizing a right of action by victims of prosecutorial misconduct against a prosecutor in order to deter future violations. (416)
Unlike the civilian system, the military justice system has long been touted as the leader in liberal criminal discovery practices. This liberal approach is the very reason that civilian defense attorneys can also benefit from the guidance of the military courts. Grounded in fairness and a desire to avoid "gamesmanship," it has long been the practice of the military justice system to afford liberal, unencumbered discovery to the criminally accused and this approach can be cited as persuasive authority for the civilian defense attorney. In this respect, perhaps it is the practices of the military justice system that will resolve the ongoing debate over how to fix a criminal discovery process in civilian federal courts that many perceive as broken. While questions such as whether a prosecutor can be found personally liable for violating the rules of discovery have presently been answered generally in the negative, (417) nothing prevents a civilian attorney from arguing that the best way to fix the broken system of criminal discovery is to adopt the standards of military courts and encourage more open, liberal discovery in criminal cases. In the end, both the civilian federal and military justice systems can provide valuable information and guidance to the other so that the ultimate goal of justice is achieved.
(1) See Parker v. Levy, 417 U.S. 733, 744 (1974).
(2) See id. at 749.
(3) MANUAL FOR COURTS-MARTIAL, UNITED STATES pt. I, [paragraph] 3 (2008) [hereinafter MCM] ("The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States."). See also United States v. Shaygan, 661 F. Supp. 2d 1289, 1313 (S.D.Fla. 2009) ("A prosecutor has a responsibility to strive for fairness and justice in the criminal justice system.").
(4) See Pyle v. Kansas, 317 U.S. 213, 215-16 (1942); see also Mooney v. Holohan, 294 U.S. 103, 112 (1935).
(5) See Napue v. Illinois, 360 U.S. 264, 269 (1959) (recognizing that a due process violation occurs where the government fails to correct false testimony presented to the fact finder when it becomes apparent even if the prosecutor did not initially solicit the false testimony in bad faith).
(6) Brady v. Maryland, 373 U.S. 83 (1963) (holding due process violated when the prosecution withheld information requested by the defense that is material to the issue of guilt or sentence).
(7) Id. at 84.
(11) Id. at 85.
(12) Id. at 91.
(13) Id. at 87.
(14) Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
(15) See Kyles v. Whitley, 514 U.S. 419, 434 (1995).
(16) Id. at 434 (quoting Bagley, 473 U.S. at 678).
(17) See, e.g., United States v. Jordan, 316 F.3d 1215, 1252 (11th Cir. 2003) ("Accordingly, under Brady, the government need only disclose during pretrial discovery (or later, at the trial) evidence which, in the eyes of a neutral and objective observer, could alter the outcome of the proceedings."); United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001) (declining to adopt a rule that would require immediate disclosure of all impeachment or exculpatory information without regard to materiality); Banks v. Reynolds, 54 F.3d 1508 (10th Cir. 1995) (concluding that the mere possibility that information may help the defense is not enough to establish materiality); United States v. Silva, 71 F.3d 667, 670 (7th Cir. 1995) ("[T]he effect that a particular piece of evidence is likely to have had on the outcome of a trial must be determined in light of the full context of the weight and credibility of all evidence actually presented at trial."); United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993) ("This somewhat Delphic 'undermine confidence' formula suggests that reversal might be warranted in some cases even if there is less than an even chance that the evidence would produce an acquittal."); United States v. Perdomo, 929 F.2d 967, 971 (3d Cir. 1991) (defendant entitled to a new trial if undisclosed evidence would undermine the outcome of the trial).
(18) Compare Silva, 71 F.3d at 670-71 (finding that the defense did not demonstrate materiality of confidential informant's identity necessary to require disclosure in order to support a vaguely articulated entrapment defense), with United States v. Pesaturo, 519 F. Supp. 2d 177 (D. Mass. 2007) (finding that the defense demonstrated materiality of confidential informant's cooperation agreement requiring disclosure where defendant claimed that he would not have sold drugs in absence of the informant's coercion).
(19) United States v. Acosta, 357 F. Supp. 2d 1228, 1233 (D. Nev. 2005). See also United States v. Sudikoff, 36 F. Supp. 2d 1196, 1201 (C.D. Cal. 1999).
(20) See Brady v. Maryland, 373 U.S. 83, 87 (1963).
(21) United States v. Agurs, 427 U.S. 97, 110 (1976); see also United States v. Hanna, 55 F.3d 1456, 1459 (9th Cir. 1995); Harm v. State, 183 S.W.3d 403 (Tex. Crim. App. 2006) (noting that a state prosecutor may not withhold Brady evidence even if the defendant has made no request for discovery or for specific evidence).
(22) See Sudikoff, 36 F. Supp. 2d at 1201.
(23) See United States v. Jordan, 316 F.3d 1215, 1251 (11th Cir. 2003).
(24) California v. Trombetta, 467 U.S. 479, 489 (1984).
(25) See Giglio v. United States, 405 U.S. 150, 154 (1972); United States v. Bagley, 473 U.S. 667, 676 (1985).
(26) See Douglas v. Workman, 560 F.3d 1156, 1173 (10th Cir. 2009).
(27) Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (per curiam) (quoting Kyles v. Whitley, 514 U.S. 419, 437-38 (2006)).
(28) United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1989).
(29) See United States v. Senn, 129 F.3d 886, 893 (7th Cir. 1997).
(30) See United States v. Cardoso, 642 F. Supp. 2d 251 (S.D.N.Y. 2009).
(31) See United States v. Lochmondy, 890 F.2d 817, 823-24 (6th Cir. 1989) (no duty to disclose tax returns in the possession of IRS where IRS not jointly involved in the investigation with the U.S. Attorney's Office).
(32) See United States v. Rigas, 583 F.3d 108 (2d Cir. 2009) (no duty to disclose information in possession of SEC during proceedings that were not jointly undertaken with the U.S. Attorney's Office).
(33) See United States v. Merlino, 349 F.3d 144 (3d Cir. 2003) (no duty to disclose recorded jail phone calls by a witness where BOP not involved in the investigation with the U.S. Attorney's Office).
(34) See United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995) (prosecutor required to turn over prison records for which he had access and knowledge).
(35) Strickler v. Greene, 527 U.S. 263 (1999).
(36) Id. at 281-82.
(37) Id. at 265.
(38) Id. at 266.
(40) Id at 273-75.
(41) Id. at 273-75.
(43) Id. at 296.
(44) Id. at 281-82.
(45) Id. at 282, 289-97.
(47) United States v. Rittweger, 524 F.3d 171, 180 (2d Cir. 2008) (quoting United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 2007)).
(48) United States v. McPartlin, 595 F.2d 1321, 1346 (7th Cir. 1979).
(49) United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir. 1976), cert denied, 429 U.S. 924 (1976).
(50) Id. at 973-74.
(51) See id. at 974.
(53) See Leka v. Portuondo, 257 F.3d 89, 99 (2d Cir. 2001).
(54) FED. R. GRIM. P. 16
(55) FED. R. CRAM. P. 16(a)(1)(A)-(a)(1)(B).
(56) FED. R. CRIM. P. 16(a)(1)(D).
(57) FED. R. CRIM. P. 16(a)(1)(F)-(a)(1)(G).
(58) FED. R. CRIM. P. 16(a)(1)(E).
(59) See United States v. Ghailani, 687 F. Supp. 2d 365, 371 (S.D.N.Y. 2010).
(60) United States v. Scafe, 822 F.2d 928, 936 (10th Cir. 1987), (quoting Committee on the Judiciary note to 1975 Enactment).
(61) See United States v. Percevault, 490 F.2d 126, 130 (2d Cir. 1974).
(62) See United States v. Salerno, 108 F.3d 730, 743 (7th Cir. 1997).
(63) FED. R. CRIM. P. 16(c).
(64) FED. R. CRIM. P. 16(a)(1)(G).
(65) FED. R. CRIM. P. 16(a)(2).
(66) See, e.g., United States v. Rudolph, 224 F.R.D. 503, 511 (N.D. Ala. 2004).
(67) FED. R. CRIM. P. 16(b).
(68) See United States v. Brown, 303 F.3d 582, 590 (5th Cir. 2002); United States v. Muhammad, 120 F.3d 688, 699 (7th Cir. 1997).
(69) See United States v. Clark, 385 F.3d 609, 619 (6th Cir. 2004); United States v. Almonhandis, 307 F. Supp. 2d 253, 255 (D. Mass. 2004).
(70) FED. R. CRIM. P. 16(a)(1)(E)(i).
(71) United States v. Caro, 597 F.3d 608, 621 (4th Cir. 2010) (quoting United States v. Ross, 511 F.2d 757, 763 (5th Cir. 1975), cert denied, 423 U.S. 836 (1975).
(72) See Caro, 597 F.3d at 620-21; see also United States v. Conder, 423 F.2d 904, 911 (6th Cir. 1970) ("We are therefore of the view that the disclosure required by Rule 16 is much broader than that required by the due process standards of Brady.").
(73) FED. R. CRIM. P. 16(a)(B)(i) (requiring disclosure of statements that are either within "the government's possession, custody, or control," or that "the attorney for the government knows--or through due diligence could know--that the statement exists."). This provision
appears to codify the constitutional duty under Brady requiring that a "[p]rosecutor will be deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant." United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1989).
(74) Fed. R. Crim P. 16(d)(1).
(75) Memorandum from David Ogden on Guidance for Prosecutors Regarding Criminal Discovery to Department Prosecutors (Jan. 4, 2010), available at http://www.justice.gov/dag/discoveryguidance.html.
(76) FED. R. CRIM. P. 16(d)(1).
(78) See, eg., D.Mass. Local Rule 116.1, 1162, available at http://www.mad.uscourts.gov/general/pdf/combines01.pdf
(79) See id.
(80) D. Mass. Local Rule 116.1(A), available at http://www.mad.uscourts.gov/general/pdf/combined01.pdf.
(81) See id.
(82) See id.
(83) See id.
(84) See United States v. Kreutzer, 61 M.J. 293,298 (C.A.A.F. 2005).
(85) See United States v. Eshalomi, 23 M.J. 12, 24 (C.M.A. 1986).
(86) United States v. Williams, 50 M.J. 436, 439 (C.A.A.F. 1999); see also United States v. Enloe, 35 C.M.R. 228, 230 (C.M.A. 1965) (congressional intent to provide military accused with broader right of discovery than civilian defendants).
(87) See United States v. Jackson, 59 M.J. 330, 333 (C.A.A.F. 2004); see also United States v. Santos, 59 M.J. 317, 321 (C.A.A.F. 2004) ("The military justice system provides for broader discovery than required by practice in federal civilian criminal trials.").
(88) See Brady v. Maryland, 373 U.S. 83, 87 (1963).
(89) See United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004).
(90) See id.
(91) Brady, 373 U.S. at 87; see also Roberts, 59 M.J. at 326.
(92) United States v. Bagley, 473 U.S. 667, 682 (1985); see also Roberts, 59 M.J. at 326.
(93) See Roberts, 59 M.J. at 325.
(94) See id.
(95) See id. at 326.
(96) See id.
(97) See id. at 326-27; see also Strickler v. Greene, 527 U.S. 263, 290 (1999).
(98) United States v. Green, 37 M.J. 88, 90 (C.M.A. 1993).
(99) See id.
(100) See id.
(101) See United States v. Williams, 50 M.J. 436, 440 (C.A.A.F. 1999).
(102) See Giglio v. United States, 405 U.S. 150 (1972).
(103) United States v. Watson, 31 M.J. 49, 54-55 (C.M.A. 1990).
(104) See United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004).
(105) See United States v. Webster, 1 M.J. 216 (C.M.A. 1975) ("As a grant of immunity is a powerful circumstance affecting credibility, the Government must disclose to the defense the fact that a Government witness is to testify under an assurance of immunity.").
(106) See United States v. Watson, 31 M.J. 49, 54-55 (C.M.A. 1990).
(107) See United States v. Stone, 40 M.J. 420 (C.M.A. 1994) (fact that government witness was under investigation for travel fraud was relevant to his credibility as a witness).
(108) See United States v. Williams, 50 M.J. 436, 440 (C.A.A.F. 1999).
(109) See id.
(110) See id. at 441.
(112) See id.
(113) See id.
(114) See United States v. Williams, 50 M.J. 436, 441 (C.A.A.F. 1999).
(115) See MCM, supra note 3, R.C.M. 701(a)(2); see also United States v. Simmons, 38 M.J. 376 (C.M.A. 1993).
(116) See Williams, 50 M.J. 436, 441 (1999).
(117) See UCMJ art. 46 (2008).
(118) See Eshalomi, 23 M.J. at 24.
(119) The President enacted the Rules for Court Martial as authorized by Article 36. See 10 U.S.C. [section] 836 (2006).
(119) See MCM, supra note 3, R.C.M. 701(a)(1), (3), (4).
(120) See MCM, supra note 3, R.C.M. 701.
(121) See MCM, supra note 3, R.C.M. 701(a)(1), (3), (4).
(122) See MCM, supra note 3, R.C.M. 701(a)(2)(A) ("Any books, papers, documents, photographs, tangible objects, buildings, or places..."); MCM, supra note 3, R.C.M. 701(a)(2)(B) ("Any results or reports of physical or mental examinations, and of scientific tests or experiments...").
(123) Sec, e.g., MCM, supra note 3, 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, and provide all sworn or signed statements known by the defense to have been made by such witnesses in connection with the case."); MCM, supra note 3, R.C.M. 701(b)(2) ("The defense shall notify the trial counsel 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.").
(124) See, e.g., MCM, supra note 3, R.C.M. 701 (b)(3) ("If the defense requests disclosure under subsection (a)(2)(A) of this rule, upon compliance with such request by the Government, the defense, on request of the trial counsel, shall 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.").
(125) See MCM, supra note 3, MIL. R. EVID. 301 (grants of immunity or leniency); MCM, supra note 3, MIL. R. EVID. 304(d)(1) (statements of the accused, whether oral or written); MCM, supra note 3, MIL. R. EVID. 311(d)(1) (evidence seized from the accused or property owned by the accused); MCM, supra note 3, MIL. R. EVID. 321(c)(1) (evidence of prior identifications of the accused); MCM, supra note 3, MIL. R. EVID. 404(b) (evidence of other crimes, wrongs or acts); MCM, supra note 3, MIL. R. EVID. 412 (evidence of victim's past sexual behavior); MCM, supra note 3, MIL. R. EVID. 413 (evidence of similar crimes of sexual assault); MCM, supra note 3, MIL. R. EVID. 414 (evidence of similar crimes of child molestation); MCM, supra note 3, MIL. R. EVID. 807 (residual hearsay).
(126) MCM, supra note 3, R.C.M. 701 (a)(6)(A)-(C).
(127) See United States v. Agurs, 427 U.S. 97, 107 (1976).
(128) MCM, supra note 3, R.C.M. 701 analysis, app. 21, at A21-33.
(129) See MCM, supra note 3, R.C.M. 701(a)(1), (6).
(130) See MCM, supra note 3, R.C.M. 701(a)(2), (5), 701(b)(1)(B).
(131) See MCM, supra note 3, R.C.M. 701(a)(4).
(132) See MCM, supra note 3, R.C.M. 701(a)(3), 701(b)(1)(A), 701 (b)(2).
(133) See MCM, supra note 3, R.C.M. 701(b)(3), (4).
(134) Air Force Standards for Criminal Justice, 15 Oct. 2002 [hereinafter Standards]. The Standards are directly adapted from the American Bar Association (ABA) Standards for Criminal Justice and have been adapted to the unique needs and demands of Air Force legal practice. Standards, page 1.
(135) See id.
(136) Standards, Rule 3.2.
(137) See MCM, supra note 3, R.C.M. 701(d).
(138) See FED. R. CRIM. P. 16(d).
(141) Unites States v. Urciuoli, 470 F. Supp. 2d 109, 114 (D. R.I. 2007).
(142) see United States v. Fitzgerald, 615 F. Supp. 2d 1156 (S.D. Ca. 2009).
(143) See Banks v. Dretke, 540 U.S. 668, 700-02 (2004) (vacating a death sentence); see also United States v. Burnside, 824 F. Supp. 1215, 1272 (N.D. Ilk 1993) (granting a new trial).
(144) See MCM, supra note 3, R.C.M. 701; see also Williams v. Florida, 399 U.S. 78, 82 (1970) (trial "is not yet a poker game in which players enjoy an absolute fight always to conceal their cards until played.").
(145) See MCM, supra note 3, R.C.M. 701(g).
(146) See United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004).
(147) MCM, supra note 3, R.C.M. 701(g)(2).
(148) MCM, supra note 3, R.C.M. 701(g)(2).
(149) See MCM, supra note 3, R.C.M. 701(g)(3)(A)-(D).
(150) See United States v. Pomarlean, 57 M.J. 351 (C.A.A.F. 2002).
(151) See id. at 362.
(152) See id.
(153) See MCM, supra note 3, R.C.M. 701(g) discussion; see also United States v. Chaffin, NMCCA 200500513, 2007 WL 1702613, at *4 (N-M. Ct. Crim. App. Feb. 22, 2007) ("[W]e hold the military judge did not abuse his discretion when he excluded defense alibi evidence due to the defense's failure to provide timely notice of its intent to offer such evidence. The military judge found the defense's failure to provide timely notice was a willful attempt to gain an unfair tactical advantage, and that finding is amply supported by the record. Further, the military judge correctly applied the law to the facts, balancing the accused's right to present evidence in his defense against the countervailing public interests.") (citation omitted).
(154) See Pomarleau, 57 M.J. at 365.
(155) Id. at 352.
(156) Id. at 354.
(157) Id. at 355. The military judge ordered more funding for the approved expert. Id.
(158) Id. at 356.
(159) Id. at 356.
(160) Id. at 356.
(161) Id. at 365.
(162) Id. at 364.
(163) See MCM, supra note 3, R.C.M. 701 discussion.
(164) 18 U.S.C. [section] 3500 (2006).
(165) See United States v. Guthrie, 25 M.J. 808, 811 (A.C.M.R. 1988); see also 18 U.S.C. [section] 3500 (2006); FED R. CALM. P. 26.2.
(166) 18 U.S.C. [section] 3500 (2006).
(168) See MCM, supra note 3, R.C.M. 914(a), 914(f)(1).
(170) See FED. R. CRIM. P. 26.2.
(171) See FED. R. CRIM. P. 26.2(a).
(172) MCM, supra note 3, R.C.M. 914.
(173) See Id.
(174) See FED. R. CRIM. P. 26.2; MCM, supra note 3, R.C.M. 914.
(175) See United States v. Roxas, 41 M.J. 727 (N-M. Ct. Crim. App. 1994).
(176) See MCM, supra note 3, R.C.M. 914 discussion.
(177) See United States v. Murphy, 569 F.2d 771, 774 (3d Cir. 1978), cert. denied, 435 U.S. 955 (1978).
(178) See United States v. Ross, 372 F.3d 1097, 1112 (9th Cir. 2004).
(179) See United States v. Jones, 609 F. Supp. 2d 113 (D. Mass. 2009).
(180) Press Release, Dep't of Justice U.S. Senator Indicted on False Statement Charges, (Jul. 29, 2008), http://www.justice.gov/opedpr/2008/July/08-crm-668.html.
(182) Matt Apuzzo & Jesse J. Holland, Alaska Senator Found Guilty of Corruption, Conviction May End Republican Leader's 40-Year Career, CHARLESTON GAZETTE (WV), Oct. 28, 2008, http://www.highbeam.com/doc/1P2-18485352.html.
(183) See id.
(184) Justice Department Indicts Sen. Ted Stevens, MSNBC (Jul. 29, 2008), http://www.msnbc.msn.com/id/25916299/.
(185) Apuzzo & Holland, supra note 182.
(186) Neil A. Lewis, Judge Berates Prosecutors in Trial of Senator, N.Y. TIMES (NY), Oct. 3, 2008, at A16.
(187) Apuzzo & Holland, supra note 182.
(190) Lewis, supra note 186.
(193) Kevin Spak, Stevens Mistrial Denied, NEWSER, Sep. 29, 2008.
(194) Apuzzo & Holland, supra note 182.
(195) Spak, supra note 193.
(196) See id.
(197) Nathaniel Burney, More Allegations of Prosecutorial Misconduct in Sen. Ted Stevens Case, THE CRIMINAL LAWYER (Feb. 11, 2009), http://burneylawfirm.com/blog/ 2009/02/11/moreallegations-of-prosecutorial- misconduct-in-sen-ted-stevens-case/; see also Lewis, supra note 186.
(198) Burney, supra note 197.
(199) Neil A. Lewis & David Johnston, Dismayed Lawyers Lay Out Reasons for Collapse of the Stevens Conviction, N.Y. TIMES (NY), Apr. 7, 2009, at A20; see also Sen. Ted Stevens' Conviction Set Aside, CNN POLITICS.COM (Apr. 7, 2009), http://www.cnn.com/2009/POLITICS/ 04/07/ted.stevens/index-html.
(200) Erika Bolstad, Justice Department Moves to Void Stevens' Conviction, McCLATCHY WASH. BUREAU, Apr. l, 2009, available at http://www.mcclatchydc.com/ 2009/04/01/65240/jusficedepartment-moves-to-void.html.
(201) See Erika Bolstad & Richard Mauer, U.S. Attorney General Ends Stevens Prosecution, ANCHORAGE DAILY NEWS (AK), Apr. 2, 2009, http://www.adn.com/ 2009/04/01/vprinter/743906/us-attorney-general-ends- stevens.html.
(202) Andrew Ramonas, No Charges for Stevens Prosecutors, MAIN JUSTICE (Nov. 15, 2010), http://www.mainjustice.com/2010/11/15 /no-charges-for-stevens-prosecutors/.
(203) Spencer S. Hsu, Judge Lifts Civil Contempt Findings Against Justice Lawyers in Ted Stevens Case, WASH. POST, Oct. 12, 2010, http://www.washingtonpost.eom/wpdyn/content/article/2010/ 10/12/AR2010101206934.html.
(204) Sell. Ted Stevens' Conviction Set Aside, CNN POLITICS.COM (Apr. 7, 2009), http://www.cnn.com/2009/POLITICS/04/07/ted.stevens/index.html.
(205) See id.
(206) See Bolstad & Mauer, supra note 201.
(207) Ramonas, supra note 202.
(208) Charlie Savage, Stevens Case Prosecutor Kills Himself, N.Y. TIMES (NY), Sept. 28, 2010, at A19.
(209) Stevens Prosecutors Won't Face Criminal Charges, NATIONAL PUBLIC RADIO (NOV. 15, 2010), http://www.npr.org/2010/11/15/131338164/ stevens-prosecutors-won-t-face-criminal-charges; see also Ramonas, supra note 202.
(210) Ramonas, supra note 202.
(211) See United States v. Shaygan, No. 08-20112-CR (S.D.Fla. Jan. 13, 2009).
(212) United States v. Shaygan, 661 F. Supp. 2d 1289, 1298 (S.D.Fla. 2009).
(213) See id. at 1291; see also Kevin McCoy & Brad Heath, Not Guilty, But Stuck with Big Bills, Damaged Career, USA TODAY, Sept. 28, 2010, at 1A.
(214) Shaygan, 661 F. Supp. 2d at 1290.
(215) Id. at 1320 (quoting United States v. Gilbert, 198 F.3d 1293, 1296 (11th Cir. 1999)).
(216) Id. at 1292-93.
(217) Id. at 1293; see also McCoy & Heath, supra note 213.
(218) Shaygan, 661 F. Supp. 2d at 1298.
(219) Id. at 1295.
(220) Id. at 1296.
(223) Id. at 1291.
(224) See id. at 1301 ("I find that the failure to turn over Tucker's DEA-6, as written on December 12, 2008, was willful, vexatious and in bad faith.").
(226) Id. at 1291.
(227) See Susan Hansen, Prosecutorial Misconduct Forces Serious Review, BROWARD DAILY BUSINESS REVIEW, May 26, 2010, http://www.dailybusinessreview.com/ PubArticleFriendlyDBR-jsP?id=1202469822300.
(228) See Shaygan, 661 F. Supp. 2d at 1291.
(229) See id. at 1310.
(230) Id. at 1315.
(231) See id. at 1292.
(233) Shaygan, 661 F. Supp. 2d at 1291.
(234) Id. at 1292 n.3.
(235) See Mark Schlachtenhaufen, Clemency Panel Hears from Family of Imprisoned Soldier, EDMOND SUN, THE (OK), Dec. 6, 2010.
(236) See Mark Schlachtenhaufen, Officials Seek New Trial for Soldier, EDMOND SUN, THE (OK), June 3, 2009, http://www.edmondsun.com/local/ x519246267/Officials_seek_new_trial_ for-soldier.
(237) Schlachtenhaufen, supra note 238.
(239) See Joe Mozingo, A Killing in the Desert: An Unlikely Witness Provides One Last Hope for Soldier in Murder Case, L.A. TIMES, Sept. 14, 2009, http://www.latimes.com/news/nationworld/world/la-fg_iraq_ killing14-2009sep14,0,7133244.story.
(240) Mark Schlachtenhaufen, March for Freedom on at Capitol, EDMOND SUN, THE (OK), June 25, 2010, http://www.edmondsun.com/local/x519247558/ March-for-Freedom-on-at-Capitol.
(241) Mozingo, supra note 239
(242) See id.
(244) Scan Murphy, Legal Experts: Toss Soldier's Murder Conviction, SEATTLE TIMES, June 3, 2009, http://seattletimes.nwsource.com/html/nationworld/ 2009297164apusiraqsoldiercharged.html.
(245) Mozingo, supra note 239.
(246) Murphy, supra note 244.
(247) Mozingo, supra note 239.
(249) Schlachtenhaufen, supra note 236.
(250) See Kyles v. Whitley, 514 U.S. 419, 437 (1995).
(251) See Montejo v. Louisiana, 129 S. Ct. 2079, 2087 (2009); see also MODEL RULES OF PROF'L CONDUCT, available at http://www.abanet.org/cpr/mrpc/mrpc_toc.html (last visited Dec. 23, 2010).
(252) MODEL RULES OF PROF'L CONDUCT R. 3.8, available at http://www.abanet.org/cpr/mrpc.rule_3_8.html (last visited Dec. 23, 2010).
(254) 28 U.S.C. [section] 530B (2010).
(255) Air Force Rules of Professional Conduct and Standards for Civility, 17 August 2005 [heteinafter Rules], available at http://www.caaflog.com/wp-content/uploads/ AirForceRulesoJProfessionalnalConduct.pdf. The Air Force Rules of Professional Conduct apply to all military and civilian lawyers, paralegals, and nonlawyer assistants in the Air Force Judge Advocate General's Corps. Rules, page 3.
(256) Rules, R. 3.8(d).
(257) MCM, supra note 3, R.C.M. 701(a)(6).
(258) See, e.g., Rules, page 3.
(259) See, e.g., Rules, page 3.
(260) Joe Palazzolo, Justice Department Opposes Expanded Brady Rule, MAIN JUSTICE, October 15, 2009, http://www.mainjustice.com/2009/10/15/ justice-department-opposes-expanded-brady-rule/.
(261) U.S. DEP'T OF JUSTICE, UNITED STATES ATTORNEYS' MANUAL [section][section] 1-1.100-600 (2009), available at http://www.justice.gov/usao/eousa/ foia_reading_room/usam/titlel/lmdoj.htm.
(262) Id. at[section] 1-1.100.
(263) Id. at [section] 9-5-001(F).
(264) ld. at [section] 9-5-001(D).
(266) Id. at [section] 9-5-001(E).
(267) Id. at [section] 9-5.100.
(268) Id. at [section] 9-5-001 (A).
(269) Id. at [section] 9-5-001(F).
(271) See United States v. Lester, 992 F.2d 174, 175 (8th Cir. 1993).
(272) Memorandum from David Ogden on Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group (Jan. 4, 2010), available at http:/Avww.justice.gov/dag/dagmemo.pdf.
(283) Memorandum from David Ogden on Guidance for Prosecutors Regarding Criminal Discovery to Department Prosecutors (Jan. 4, 2010), available at http://www.justice.gov/dag/discoveryguidance.html.
(286) United States v. Caceres, 440 U.S. 741, 755 (1979) (declining "to adopt any rigid rule requiring federal courts to exclude any evidence obtained as a result of a violation of these [IRS Regulations].").
(287) Memorandum from David Ogden on Guidance for Prosecutors Regarding Criminal Discovery to Department Prosecutors (Jan. 4, 2010), available at http://www.justice.gov/dag/discoveryguidance.html.
(307) Press Release, U.S. Dep't of Justice, Andrew Goldsmith Appointed as National Coordinator of Criminal Discovery Initiatives (Jan. 15, 2010), available at http://www.justice.gov/opa/pr/2010/January/10-dag-043.html.
(309) Standards, 15 Oct. 2002. The Standards are directly adapted from the American Bar Association (ABA) Standards for Criminal Justice and have been adapted to the unique needs and demands of Air Force legal practice. Standards, page 1.
(310) Standards, 11-2.2.
(311) See United States v. Jackson, 59 M.J. 330, 333 (C.A.A.F. 2004) ("Discovery in the military justice system ... is broader than in federal civilian criminal proceedings...."); see also United States v. Santos, 59 M.J. 317, 321 (C.A.A.F. 2004) ("The military justice system provides for broader discovery than required by practice in federal civilian criminal trials.").
(312) United States v. Reece, 25 M.J. 93, 94 (C.M.A. 1987).
(313) See, e.g., United States v. Silva, 71 F.3d 667, 670-71 (C.M.A. 1993) (defense did not demonstrate materiality of confidential informant's identity necessary to require disclosure in order to support a vaguely articulated entrapment defense); but see United States v. Pesaturo, 519 F. Supp. 2d 177(D. Mass. 2007) (defense demonstrated materiality of confidential informant's cooperation agreement requiring disclosure where defendant claimed that he would not have sold drugs in absence of the defendant's coercion).
(314) See, e.g., United States v. Lester, 992 F.2d 174, 175-76 (8th Cir. 1993) (holding that internal policies of the U.S. Department of Justice do not create enforceable substantive rights for a defendant).
(315) Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
(316) See Brady v. Maryland, 373 U.S. 83, 84 (1963).
(317) See Goudy v. Basinger, 604 F.3d 394, 396 (7th Cir. 2010) (undisclosed police reports indicating that the prosecution's main witness as the perpetrator and not the defendant); see also Ganci v. Berry, 702 F. Supp. 400 (E.D.N.Y. 1988), aff'd, Ganci v. Berry, 896 F.2d 543 (2d Cir. 1990) (eyewitness's descriptions identified someone other than the defendant as being the perpetrator).
(318) See Giglio v. United States, 405 U.S. 150, 154 (1972); see also United States v. Bagley, 473 U.S. 667, 676 (1985).
(319) See Sherman v. Helling, 194 F.3d 937, 940 (8th Cir. 1999).
(320) See id.
(321) See Bagley, 473 U.S. at 676.
(322) See id.
(323) See Brady v. Maryland, 373 U.S. 83, 84 (1963).
(324) See Bagley, 473 U.S. at 676.
(325) See id.
(326) See Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (per curiam) ("Brady suppression occurs when the government fails to turn over even evidence that is 'known only to police investigators and not the prosecutor.'") (quoting Kyles v. Whitley, 514 U.S. 419, 438 (1995)); see also Williams, 50 M.J. 436, 440-41 (C.A.A.F. 1999).
(327) MCM, supra note 3, app. 21.
(328) See, e.g., MCM, supra note 3, MIL. R. EVID. 608, 609, 613.
(329) See, e.g., Lieutenant Colonel James Moody and Lieutenant Colonel LeEllen Coacher, A Primer on Methods of Impeachment, 45 A.F.L. REV. 161 (1998); see also United States v. Owens, 933 F. Supp. 76 (D. Mass. 1996) for a thorough list of impeachment evidence authorized by the Federal Rules of Evidence.
(330) MCM, supra note 3, MIL. R. EVID. 608(c).
(331) MCM, supra note 3, MIL. R. EVID. 608(b).
(332) MCM, supra note 3, MIL. R. EVID. 613.
(333) See United States v. Abel, 469 U.S. 45 (1984); see also MCM, supra note 3, MIL. R. EVID. 608(c).
(334) See United States v. Sipe, 388 F.3d 471, 481-82 (5th Cir. 2004).
(335) See United States v. Sperling, 726 F.2d 69, 70-71 (2d Cir. 1984).
(336) See Banks v. Dretke, 540 U.S. 668, 699-701 (2004).
(337) See United States v. Mason, 293 F.3d 826 (5th Cir. 2002); Monroe v. Angelone, 323 F.3d 286, 288 (4th Cir. 2003); Benn v. Lambert, 283 F.3d 1040, 1057-58 (9th Cir. 2002).
(338) See Hayes v. Brown, 399 F.3d 972, 987-88 (9th Cir. 2005).
(339) See Braun v. Powell, 227 F.3d 908, 920 (7th Cir. 2000).
(340) See United States v. Parness, 408 F. Supp. 440 (S.D.N.Y. 1975).
(341) See United v. Mejia, 82 F.3d 1032, 1036 (11th Cir. 1996) (disclosure required of government's payment of $16,000 to a confidential informant in past cases); Wilson v.
Beard, 589 F.3d 651, 651-54 (3d Cir. 2009) (officer's history of providing loans to a confidential informant in the past constitutes Brady-Giglio material).
(342) See Beard, 589 F.3d at 664.
(343) See United States v. Andrews, 824 F. Supp. 1273 (N.D. Ill. 1993); United States v. Burnside, 824 F. Supp. 1215 (N.D. Ill. 1993); United States v. Boyd, 883 F. Supp. 1277 (N.D. Ill. 1993). All three cases arose from the prosecution of the El Rukn crime organization by the U.S. Attorney's Office in Chicago in which various claims of prosecutorial misconduct were alleged including Brady-Giglio violations.
(344) See United States v. Wainwright, 756 F.2d 1520, 1524 (11th Cir 1985); United States v. Webster, 1 M.J. 216 (C.M.A. 1975).
(345) See United States v. Arnold, 117 F.3d 1308, 1315-18 (11th Cir. 1997).
(346) See id.
(347) See United States v. Mahoney, 58 M.J. 346 (C.A.A.F. 2003).
(348) Id. at 347.
(349) Id. at 347-48.
(350) Id. at 347.
(351) Id. at 348.
(353) Id. at 347-48.
(354) Id. at 347.
(355) Id. at 348.
(356) Id. at 350.
(357) Id. at 348.
(358) Id. at 350.
(359) Id. at 350.
(360) United States v. Williams, 50 M.J. 436, 441 (C.A.A.F. 1999) (requiring the prosecution to exercise "due diligence" in obtaining discoverable information from investigating authorities and other entities that are closely aligned with the prosecution).
(362) Mahoney, 58 M.J. at 349.
(363) See United States v. Simmons, 38 M.J. 376, 377-79 (C.M.A. 1993) (holding that a victim's statement to a polygrapher in a post-polygraph interview that she did not believe she was raped because she enjoyed the sex was deemed discoverable).
(364) See id.
(365) See United States v. Torres, 569 F. 3d 1277, 1279-81 (10th Cir. 2009).
(366) See Banks v. Dretke, 540 U.S. 668, 680 (2004).
(367) See United States v. Romano, 46 M.J. 269 (C.A.A.F. 1997).
(368) MCM, supra note 3, MIL. R. EVID. 608(b).
(369) United States v. Banks, 546 F.3d 507 (7th Cir. 2008).
(370) United States v. Green, 37 M.J. 88 (C.M.A. 1993).
(371) Id. at 89.
(373) See United States v. Childs, 447 F.3d 541, 543 (7th Cir. 2006).
(374) See United States v. Steinberg, 99 F.3d 1486, 1489-92 (9th Cir. 1996); United States v. Cuffie, 80 F.3d 514, 518 (D.C. Cir. 1996).
(375) United States v. Williams, 50 M.J. 436, 441 (C.A.A.F. 1999).
(376) See United States v. Wilson, 605 F.3d 985 (D.C. Cir. 2010) (discussing pending investigations of misconduct as impeachment material).
(377) See id.
(378) See Arnold v. McNeil, 622 F. Supp. 2d 1294 (M.D. Fla. 2009), aff'd per curiam, 595 F.3d 1324 (11th Cir. 2010).
(379) See United States v. Novaton, 271 F.3d 968 (11th Cir. 2001) (defense counsel may not cross-examine a police officer about unproven, pending complaints of wrongdoing).
(380) United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004).
(382) See id. at 326 (noting that "the military judge improperly limited the scope of discovery when he apparently focused on admissibility.").
(383) See id. at 325.
(384) See Wiggins v. United States, No. 10-1033, 2010 WL 2546072 (D. N.J. June 21, 2010). Prosecution sought ex parte in camera review of potentially impeaching information against one of its witnesses under provisions of Federal Rule of Criminal Procedure 16, which mirrors R.C.M. 701(g)(2). Id.
(385) See United States v. Dawson, 425 F.3d 389, 396 (7th Cir. 2005) (cross-examination of a law enforcement officer about a judge's prior finding that the officer was not credible in a prior unrelated proceeding deemed permissible impeachment under Federal Rule of Evidence 608(b)).
(386) See id.; see also United States v. Whitmore, 359 F.3d 609, 619-22 (D.C. Cir. 2004) (cross-examination on prior finding of incredibility permissible), but see Zuluaga v. Spencer, 585 F.3d 27 (1st Cir. 2009); United States v. Cruz, 894 F.2d 41, 43 (2d Cir. 1990) (defense not permitted to cross examine informant regarding prior finding of incredibility in an unrelated proceeding).
(387) See United States v. Terry, 702 F.3d 299, 316 (2d Cir. 1983) (prosecutor permitted to cross-examine defense experts about prior cases in which the expert's testimony was deemed untruthful).
(388) See Williams v. Whitley, 940 F.2d 132, 134-36 (5th Cir. 1991) (eyewitness used methadone within two hours prior to the crime); Benn v. Lambert, 283 F.3d 1040, 1056 (9th Cir. 2002) (informant's use of drugs during trial proper impeachment).
(389) See King v. Ponte, 717 F.2d 635 (1st Cir. 1983).
(390) See Ballinger v. Kerby, 3 F.3d 1371 (10th Cir. 1993).
(391) See Leka v. Portuondo, 257 F.3d 89 (2d Cir. 2001) (evidence that eyewitnesses contradicted prosecution witness's version of events deemed discoverable Brady-Giglio material).
(392) United States v. Williams, 50 M.J. 436, 441 (C.A.A.F. 1999).
(393) See id.; see also Youngblood v. West Virginia, 547 U.S. 867, 869-70, ("Brady suppression occurs when the government fails to turn over even evidence that is 'known only to police investigators and not to the prosecutor....'") (quoting Kyles v. Whitley, 514 U.S. 419, 438).
(394) See United States v. Jones, 609 F. Supp. 2d 113 (D. Mass. 2009).
(395) See Captain Christopher M. Schumann, Why Can't We All Just Get Along?, THE REPORTER, Sept. 2004, at 20.
(396) See, e.g., United States v. Santos, 59 M.J. 317 (C.A.A.F. 2004); United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004).
(397) United States v. Safavian, 233 F.R.D. 12, 16 (D. D.C. 2005).
(398) See United States v. Agurs, 427 U.S. 97 (1976); see also United States v. Green, 37 M.J. 88, 90 (C.M.A. 1993).
(399) See Agurs, 427 U.S. at 106.
(401) See Green, 37 M.J. at 90.
(402) Ogden, supra note 75.
(403) See id.
(404) See id. "This guidance was developed at my request by a working group of experienced attorneys with expertise regarding criminal discovery issues that included attorneys from the Office of the Deputy Attorney General, the United States Attorneys' Offices, the Criminal Division, and the National Security Division. The working group sought comment from the Office of the Attorney General, the Attorney General's Advisory Committee, the Criminal Chiefs Working Group, the Appellate Chiefs Working Group, the Professional Responsibility Advisory Office, and the Office of Professional Responsibility." Id.
(405) United States v. Roberts, 59 M.J. 323,324 (C.A.A.F. 2004).
(407) Id. at 325.
(410) Id. at 326.
(413) Id. at 327.
(415) See MCM, supra note 3, R.C.M. 701(g)(3).
(416) See Jess Bravin, Stevens Urges Congress to Crack Down on Prosecutorial Misconduct, WALL ST. J. L. BLOG (May 3, 2011, 7:05 PM), http://blogs.wsj.com/law/2011/05/03/stevensurges-congress-to-crack-down-on- prosecutorial-misconduct/.
(417) See Connick v. Thompson, 131 S. Ct. 1350 (2011) (holding that a local district attorney cannot be found personally liable for failing to properly train subordinate prosecutors in proper Brady disclosure practices based upon proof of single violation).
CAPTAIN ELIZABETH CAMERON HERNANDEZ *
* Captain Elizabeth Cameron Hernandez (B.S., University of North Dakota; J.D., Villanova University School of Law) is a Senior Defense Counsel at Barksdale Air Force Base, Louisiana and previously served as an Area Defense Counsel and Chief of Military Justice, 81st Training Wing, Keesler Air Force Base, Mississippi. She is a member of the Pennsylvania and Minnesota Bars.
CAPTAIN JASON M. FERGUSON **
** Captain Jason M. Ferguson (B.A. Valdosta State University; J.D., Mercer University School of Law) serves as the Deputy Staff Judge Advocate of the 165th Airlift Wing, Georgia Air National Guard, Garden City, Georgia. A former Assistant United States Attorney in the Criminal Division for the Middle District of Georgia, he is a sole practitioner based in Camilla, Georgia specializing in civilian and military criminal defense. He is a member of the Georgia and Alabama Bars.
The views expressed in this article are those of the authors and do not necessarily represent the views of, and should not be attributed to, the United States Air Force.