Overview of practice tips for defense discovery:
- Note that if the defense counsel does not ask for certain information, the government is under no obligation to provide it unless another rule or due process separately requires disclosure – so ask for it.
- If defense counsel can identify what they are looking for and make a specific discovery request and the government does not disclose that evidence, then the accused will benefit from a higher standard of review on appeal.
- Defense counsel should generally make an RCM 701(a)(2) request. Note that after making that request, if the government makes a reciprocal request, the defense only has to disclose that evidence that it
intends to introduce
in its case- in-chief. Defense counsel do not usually introduce damaging evidence during its case-in-chief. They only introduce positive information – and this positive information may further negotiations. If the circumstances of your case weight against making an RCM 701(a)(2) request, remember to request the other items in this section.