The gaps between discovery and production can lead to Catch-22 scenarios. Say the defense counsel believes his client suffered an adverse reaction from a new medication. The defense counsel wants to review reports made to the Food and Drug Administration to see if others have had similar reactions. Can the defense counsel get these reports under RCM 701 or 703? Probably not.
RCM 701(a)(6) and Brady do not provide a mechanism. Even if there were exculpatory material in the reports, the trial counsel is not obligated to disclose them – the reports are not in the files of a law enforcement agency that is somehow related to the case.
RCM 701(a)(2) does not provide a mechanism. The reports are not in the possession, custody, or control of military authorities.
The defense counsel has to rely on the production rules in RCM 703. While the files are subject to production without subpoena (they are under the control of the Government), the defense counsel may not be able to make a good argument about why the matter is relevant and necessary – because the defense counsel has not seen them yet.
The defense counsel’s only remedy may be to ask the Article 32 officer to produce the reports at the Article 32 hearing (RCM 405(g)(1)(B)) or ask for the reports under the Freedom of Information Act and then wait patiently for them to arrive, asking the military judge for continuances until they do.
Knowing the difference between the various discovery rules and between the discovery rules and similar production rules is important. Be precise in your analysis. When conducting research, note whether the appellate court is using RCM 701 or 703 as the basis for its reasoning (and whether the appellate court incorrectly applied one or the other). For example:
Scope of government duty to locate. Under RCM 701(a)(2), the trial counsel must search what is in the possession, custody, or control of military authorities, which includes non law-enforcement authorities. Under RCM 701(a)(6) and Brady , the trial counsel generally must search law enforcement files. Under RCM 703, the government may have to issue a subpoena to anyone , military or government or not.
The kind of information. Under RCM 701(a)(2), the threshold is low: the matter only needs to be material to the preparation of the defense . Under RCM 701(a)(6) and Brady , the matter needs to be favorable and material . Under RCM 703, the matter needs to be relevant and necessary . These are all different standards.
When. Under RCM 701(a)(2), the government only has to provide the information when asked. Under RCM 701(a)(6) and Brady , the government must disclose the matter without being asked. Under RCM 703, the government must product the witness or evidence if the government determines that it is relevant and necessary, or the military judge tells the government to produce it.
In camera . Under RCM 701(g), the military judge grants in camera review before deciding on the importance of the information (whether the matter is material to the preparation of the defense); the person seeking relief is a party to the trial; and the party that is denied discovery has no relief until appeal. Under RCM 703(f), the in camera review comes after the decision on the importance of the information (relevant and necessary); the person seeking relief is the custodian of the evidence; and the party denied production of the evidence then seeks relief under RCM 703(f)(2) (unavailable evidence).
Standard on review. For specific requests under RCM 701(a)(2), the standard for prejudice is harmless beyond a reasonable doubt. Under RCM 701(a)(6) and Brady , the standard for prejudice is material (reasonable probability of different result) unless government bad faith, when it is harmless beyond a reasonable doubt. Under RCM 703, the standard for prejudice is harmless beyond a reasonable doubt. Findings Argument (Art and Law)