7/28/2019 AE 26 Defense reply to prosecution resposne to Motion
to Compel discovery.pdf
9/12
pepaation of the defense fo puoses of the ovenents obligation to
disclose unde R.C.M.701(a)(2)(A).")(emphasis added); Adens 56 M J
at 733 (We espectlly disagee with ousiste cou's naow interpetation
that the tem ateil to the pepaation of the defense' inRCM
701(a)(2)(A) and (B) is liited to exculpatory evidence unde
theBrady line of casesand hold that ou siste cours decision in
Trimper should no longe be followed in Ay cous-
maial The is no language in RCM 701, o in its alysis, indicating
any intent by thePesident to limit disclosue unde Aticle 46, UCM J,
to constitutionally equied exculpatoymattes As noted above, R.C.M.
701 is specically intended to povide fo boade discoveythn is equied
in Fedeal pactice (CM. 701 Analysis, at A21 32), and unquestionably
is
intended to implement an independent stattoy ight to discovey
unde Aicle 46 UCM")United States v. Webb, 66 M J 89, 92 (C.AAF
2008) ( [U]pon equest o the defense, e tial
counsel ust peit the defense to inspect y documents within the
custody, o contol ofmilitary autoities that ae mateial to the
pepaation of the defense R.C.M. 701(a)(2)(A).Thus an accuseds ight
to discovey is not limit to evidence that would be known to
beadmissible at tial. It includes mateials that would assist the
defense in foulating a defensestategy")
20. Thus, unde R.C.M. 701(a)(2)(A), the Govement must tu ove
specically equesteditems that ae mateial to the pepaation of the
Defense. The Defense does not need to show
that the ites ae elevant and necessa" unde RCM 703 as the
ovenent believes
21 If the oveent does not think that the equested ites ae
mateial to the pepaation ofthe defense " the Goveent cnot, unde any
cicumstances, unilateally withold discoveySee United States v
Gonzalez 62 M.J 303, 306 (CAAF 2006) (When a defendnt mes aspecic
equest fo discoveable infoation, it is eo if the Goveent does not
povide theuested infoation ") The appopiate couse of action if the
Goveent maintains that theuested mateial does not eet the R.C.M.
701(a)(2)(A) standad is to follow the pocedues
outlined in RC.M. 701(g)(2) fo n in camea deterination by the
Militay Judge The Rulepovides, in perinent par:
Upon a sufcient showing the militay udge ay at any time ode that
the
discovery o inspection be denied, estricted, o deferred, o me
such otheode as is appopiate. Upon otion by a paty, the mility
judge ay peit
the py to make such showing, in whole o in p, in witing to be
inspectedonly by the militay judge
22 I othe wods, if the Goveent believes that a discovey equest
is inappopiate, it ustle a motion with the ilitay judge equesting
in caea eview It cnot continue to state
that the Defse has not adequately demonstated ateality within e
meing of RC M701(a)(2)(A) and theeby ese the discovey equest.
Alteatively, if the mateial isclassied, the oveent ust poceed unde
MR.E. 505, discussed below This compors
9 For exam the Govent dos not biv hat th ard drivs of sodir iin
PF Maning's nit "vt and necssry (the rong sdad Prhaps his also mns
tht th Gvnt ds nt biv thtthis physil vidn is mtril t th prprn of h
Dfns If s th Gvnt must mn th MiitryJudg undr RCM. 70g)2) fora
pprprit dtrmintion r undr CM 505, if th mtri is ssid)t nt ontinu, s
it hs fr mst tw yrs t rs t prvid th disvry to Dfns bus it dsnt f
tht th Dfns shud gt it
9
