Mandatory disclosure or notice requirements for defense counsel

Overview of mandatory disclosure or notice requirements for defense counsel:

  1. militarydefenselawyers272Merits witnesses (before beginning of trial on the merits). RCM 701(b)(1)(A).
    1. 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.
    2. The Rules of Practice, at 21, requires notice ten days prior to trial.
  2. Merits witnesses’ sworn or signed statements (before beginning of trial on the merits). RCM 701(b)(1)(A).
    1. The defense shall provide all sworn or signed statements known by the defense to have been made by such witnesses in connection with the case.
    2. The Rules of Practice, at 21, requires notice ten days prior to trial.
  3. Notice of certain defenses (before the beginning of trial on the merits). RCM 701(b)(2). The defense shall give notice before the beginning of trial on the merits of its intent to offer the defense of:
    1. Alibi, to include the place or places at which the defense claims the accused to have been at the time of the alleged offense.
    2. Innocent ingestion, to include the place or places where, and the circumstances under which the defense claims the accused innocently ingested the substances in question. (1)
      United States v. Lewis,
      51 M.J. 376 (C.A.A.F. 1999). The trial judge erroneously prevented the accused from presenting an innocent ingestion defense because the defense could not give notice of places where the innocent ingestion occurred and witnesses to be relied upon. The judge prevented the accused from raising this defense herself by her testimony alone. CAAF reversed holding that RCM 701(b)(2) does not require corroborative witnesses or direct evidence as a condition for raising innocent ingestion.
    3. Lack of mental responsibility.
    4. Notice shall include places, circumstances, and witnesses to be relied upon for these defenses.
    5. The Rules of Practice, at 4, requires notice at least ten days before trial.
  4. Notice of intent to introduce expert testimony as to the accused’s mental condition (before beginning of trial on the merits). RCM 701(b)(2).
    1. Note the relationship to MRE 302(c). If the defense does then offer this testimony, the defense may have to disclose the full contents of the sanity board report.
  5. Evidence of the victim’s sexual behavior or predisposition (5 days prior to entry of plea). MRE 412.
  6. Residual hearsay (sufficiently in advance of trial to provide a fair opportunity to respond). MRE 807.
    1. See United States v. Holt
      , 58 M.J. 227 (C.A.A.F. 2003) (holding that Air Force Court of Criminal Appeals abused its discretion when it affirmed the introduction of residual hearsay statement when there was no indication in the record as to whether the required notice was given and by misapplying the foundational requirement of necessity).
  7. Notice of intent to disclose classified or government information. MRE 505(h)(1), 506(h).
  8. Judicial notice of a foreign law (reasonable time). MRE 201A(b).
  9. Testimony of accused for limited purpose regarding a confession, MRE 304(f); seizures, MRE 311(f); or lineups, MRE 321(c)(2)(B). 10. Original writing in possession of other party. MRE 1004(3). 11. Evidence of a conviction more than 10 years old (sufficient advance notice as to provide a fair opportunity to contest the use). MRE 609(b). 12. Notice of plea and forum. Unless the judge sets a different deadline, defense counsel will notify the trial counsel and judge, in writing, at least ten duty days before the date of trial (whichever is earlier), of the forum and pleas. Rules for Practice, at 3.

Merits witnesses’ sworn or signed statements

Judicial notice of a foreign law (reasonable time).