Discovery in Court Martials
Discussion of discovery in court martials:
A critical element of pre-trial organization is the obligation of trial advocates to comply with the Discovery rules. Both Trial Counsel and Defense Counsel possess this reciprocal obligation in order to ensure a fair trial. For Trial Counsel, however, this obligation is especially significant because most if not all incriminating evidence is in the control of the prosecution and material to the preparation of the defense. When Trial Counsel possesses exculpatory or impeachment evidence that is material to guild or punishment, this evidence must be disclosed to the defense. These rules are established by RCM 701, the Jencks Act, found at RCM 914, Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). It is absolutely imperative that trial advocates know these rules and consider thoroughly how to meet these obligations in each case.
Trial Counsel should be mindful that while the rules provide that the disclosures be made in sufficient time to permit the defendant to make effective use for the information at trial, it is never a wise practice to withhold the evidence for tactical purposes, only to disclose it in advance of trial but allowing the defense minimal opportunity to prepare. This is not an area for gamesmanship. Generally, providing broad and early discovery promotes the truth-seeking aspect of the pre-trial and trial process and can help foster speedy resolution of cases. There are countervailing circumstances to consider, however, particularly the safety of victims and witnesses, protection of privacy, privileged information, integrity of on-going investigations, etc. Trial advocates should be familiar with the rules and seek guidance from supervisors. Additionally, trial advocates should keep a thorough record regarding such disclosures. And failure to disclose this evidence has severe ethical consequences.