Discovery: Give and Take

Texas is currently looking to revise it’s discovery rules, and it has a few defense counsel gnashing teeth at the proposed changes to reciprocal discovery. Reciprocal discovery are obligations placed upon defense attorneys to provide prosecutors with certain information, statements, and notifications prior to trial.

For a good overview of the Texas rule and links to other opinions, take a look at what Gideon (anonymous pseudonym of a computer in a Public Defender office in New England which, years ago, achieved self-awareness) at A Public Defender has to say about it.

Gid and I share the same view. Discovery rules are a give and take. I can’t think of a time when I’ve given-up something that wounds my client’s case. At the same time, discovery has yielded many, many benefits to my cases. Granted, the military rules are very liberal and vigorously enforced by military judges–especially in favor of the defense.

Note: I’ve attached the text of military reciprocal discovery rules at the end of this article, if you’re really, really bored.

What I think is a bigger benefit of this discussion is that it is crossing jurisdictional lines. I’ve met many lawyers who become mired in their chosen jurisdiction and forget that anything outside of their state/county/parish exist. Gid juxtaposed the TX rules with those of his state, and I’ve done the same with mine. Were it not for the Texas hubbub, I wouldn’t have reviewed the Rule for Court-Martial.

Too often, we merely accept our local/state rules because we are familiar with them.There’s comfort derived from the same because you know how it works, and how it won’t. That doesn’t make it right, or the best system. It helps to leave the house now and then.

With that said, here’s my take on the TX reciprocal discovery (juxtaposed with Rule for Court-Martial 701).

Sec. 2. DISCLOSURE BY DEFENDANT. (a) As soon as practicable after receiving the initial disclosure […] the defendant shall disclose […] and permit inspection, photocopying, and photographing of the following materials and information:

(1) any written or recorded statement by a witness, […] if the defendant intends to call the witness at the trial;

Yep, already have to do this. RCM 701(b)(1)

(2) any record of a criminal conviction admissible for impeachment […] of a witness, […] the defendant intends to call at the trial, if that information is known to the defendant;

Nope, not doing it. Prosecutors can go to their fancy-schmancy database (or that of their LEOs) and find it themselves.

(3) any physical or documentary evidence that the defendant intends to use at the trial and, on a showing of materiality by the attorney representing the state, the opportunity to test that evidence;

This is a fun one in the military. Defense counsel has a choice to make. If a formal discovery request is made for things outside the prosecutor’s automatic obligations, the defense counsel triggers additional reciprocal discovery obligations. Make good choices, defense counsel. RCM 701(b)(3)

(4) the names and addresses of the witnesses called to present evidence[…] the defendant intends to call at the trial; and

Why this isn’t weaved-into (1) is not known to me. Again, RCM 701(b)(1)

(5) any report produced by or for an expert witness the defendant intends to call at the trial.

As with (3), defense counsel should make good choices. RCM 701(b)(4)

(b) On a request by the state, a defendant planning to offer evidence of one or more defenses listed in Chapter 8 or 9, Penal Code, or evidence of an alibi defense, shall file a good faith notice of intent to raise the defense […] Any notice provided under this subsection is for purposes of discovery only and is not admissible at trial unless the court finds that the contents of the notice were not made in good faith.

Disclosure of certain defenses is old news for military practitioners, with a few additional caveats and duties. RCM 701(b)(2)

So, the TX rules are certainly not shocking to my conscience, but they might be if I’d been immersed in the previous discovery rules for years or decades. To me, they appear to be the usual give and take that generally benefits the accused far more than the government.

As promised, here’s the rules that bind me in my jurisdictions (from Rule for Court-Martial 701; please ignore any strange hyphens, as they are a result of cutting and pasting from the Manual for Courts-Martial):

(b) Disclosure by the defense. Except as otherwise provided in subsections (f) and (g)(2) of this rule, the defense shall provide the following information to the trial counsel—

(1) Names of witnesses and statements.

(A) Before the beginning of trial on the merits, 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, and provide all sworn or signed statements known by the defense to have been made by such witnesses in connection with the case.

(B) Upon request of the trial counsel, the defense shall also

(i) Provide the trial counsel with the names and addresses of any witnesses whom the defense intends to call at the presentencing proceedings under R.C.M. 1001(c); and

(ii) Permit the trial counsel to inspect any written material that will be presented by the de- fense at the presentencing proceeding.


Such notice shall be in writing except when impracticable. See R.C.M. 701(b)(4)

R.C.M. 701(f) for statements that would not be subject to disclosure.

(2) Notice of certain defenses. The defense shall notify the trial counsel before the beginning of trial on the merits of its intent to offer the defense of alibi, innocent ingestion, or lack of mental responsi- bility, or its intent to introduce expert testimony as to the accused’s mental condition. Such notice by the defense shall disclose, in the case of an alibi defense, the place or places at which the defense claims the accused to have been at the time of the alleged offense, and, in the case of an innocent in- gestion defense, the place or places where, and the circumstances under which the defense claims the accused innocently ingested the substance in ques- tion, and the names and addresses of the witnesses upon whom the accused intends to rely to establish any such defenses.


Such notice should be in writing except when impracticable. See R.C.M. 916(k) concerning the defense of lack of mental responsi- bility. See R.C.M. 706 concerning inquiries into the mental re- sponsibility of the accused. See Mil. R. Evid. 302 concerning statements by the accused during such inquiries. If the defense needs more detail as to the time, date, or place of the offense to comply with this rule, it should request a bill of particulars. See R.C.M. 906(b)(6).

(3) Documents and tangible objects. If the defense requests disclosure under subsection (a)(2)(A) of this rule, upon compliance with such request by the Government, the defense, on request of the trial counsel, shall permit the trial counsel to inspect books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody, or control of the defense and which the defense intends to introduce as evidence in the defense case-in-chief at trial.

(4) Reports of examination and tests. If the de- fense requests disclosure under subsection (a)(2)(B) of this rule, upon compliance with such request by the Government, the defense, on request of trial counsel, shall (except as provided in R.C.M. 706, Mil. R. Evid. 302, and Mil. R. Evid. 513) permit the trial counsel to inspect any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, that are within the possession, custody, or control of the defense that the defense intends to introduce as evidence in the defense case-in-chief at trial or that were prepared by a witness whom the defense intends to call at trial when the results or reports relate to that wit- ness’ testimony.

(5) Inadmissibility of withdrawn defense. If an intention to rely upon a defense under subsection (b)(2) of this rule is withdrawn, evidence of such intention and disclosures by the accused or defense counsel made in connection with such intention is not, in any court-martial, admissible against the accused who gave notice of the intention.


In addition to the matters covered in subsection (b) of this rule, defense counsel is required to give notice or disclose evidence under certain Military Rules of Evidence: Mil. R. Evid. 201A(b) (judicial notice of foreign law), 304(f) (testimony by the accused for a limited purpose in relation to a confession), 311(b) (same, search), 321(e) (same, lineup), 412(c)(1) and (2) (intent to offer evidence of sexual misconduct by a victim), 505(h) (intent to disclose classified information), 506(h) (intent to disclose privi- leged government information), 609(b) (intent to impeach a wit- ness with a conviction older than 10 years), 612(2) (writing used to refresh recollection), and 613(a) (prior inconsistent statements).

(c) Failure to call witness. The fact that a witness’ name is on a list of expected or intended witnesses provided to an opposing party, whether required by this rule or not, shall not be ground for comment upon a failure to call the witness.

(d) Continuing duty to disclose. If, before or during the court-martial, a party discovers additional evi- dence or material previously requested or required to be produced, which is subject to discovery or in- spection under this rule, that party shall promptly notify the other party or the military judge of the existence of the additional evidence or material.

(e) Access to witnesses and evidence. Each party shall have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence. No party may unreasonably im- pede the access of another party to a witness or evidence.


Convening authorities, commanders and members of their imme- diate staffs should make no statement, oral or written, and take no action which could reasonably be understood to discourage or prevent witnesses from testifying truthfully before a court-martial, or as a threat of retribution for such testimony.