Discovery

(a) Disclosure by trial counsel. Except as otherwise provided in subsection (f) and paragraph (g)(2) of this rule, and unless previously disclosed to the defense in accordance with R.C.M. 404A, trial counsel shall provide the following to the defense: (1) Papers accompanying charges; convening orders; statements. As soon as practicable after service of charges under R.C.M. 602, trial counsel shall provide the defense with copies of, or, if extraordinary circumstances make it impracticable to provide copies, permit the defense to inspect: (A) All papers that accompanied the charges when they were referred to the court-martial, including papers sent with charges upon a rehearing or new trial; (B) The convening order and any amending orders; and (C) Any sworn or signed statement relating to an offense charged in the case that is in the possession of trial counsel. case-in-chief at trial; or (iii) the government anticipates using the item in rebuttal. (3) Witnesses. Before the beginning of trial on the merits, trial counsel shall notify the defense of the names and contact information of the witnesses trial counsel intends to call: (A) In the prosecution case-in-chief; and (B) To rebut a defense of alibi, innocent ingestion, or lack of mental responsibility, when trial counsel has received timely notice under paragraphs (b)(1) or (2) of this rule. (4) Prior convictions of accused offered on the merits. Before arraignment, trial counsel shall notify the defense of any records of prior civilian or court- martial convictions of the accused of which trial counsel is aware and which trial counsel may offer on the merits for any purpose, including impeachment, and shall permit the defense to inspect such records when they are in trial counsel’s possession. (2) Documents, tangible objects, reports. (5) Information to be offered at sentencing. Upon (A) After service of charges, upon request of the defense, the Government shall permit the defense to inspect any books, papers, documents, data, photographs, tangible objects, buildings, or places, or copies of portions of these items, if the item is within the possession, custody, or control of military authorities and— (i) the item is relevant to defense preparation; (ii) the government intends to use the item in the case-in-chief at trial; (iii) the government anticipates using the item in rebuttal; or (iv) the item was obtained from or belongs to the accused. (B) After service of charges, upon request of the defense, the Government shall permit the defense to inspect the results or reports of physical or mental examinations, and of any tests or experiments, or copies thereof, which are within the possession, custody, or control of military authorities, the existence of which is known or by the exercise of due diligence may become known to trial counsel if (i) the item is relevant to defense preparation; (ii) the government intends to use the item in the scientific II-40 request of the defense, trial counsel shall: (A) Permit the defense to inspect such written material as will be presented by the prosecution at the presentencing proceedings; and (B) Notify the defense of the names and contact information of the witnesses trial counsel intends to call at the presentencing proceedings under R.C.M. 1001(b). (6) Evidence favorable to the defense. Trial counsel shall, as soon as practicable, disclose to the defense the existence of evidence known to trial counsel which reasonably tends to— (A) Negate the guilt of the accused of an offense charged; (B) Reduce the degree of guilt of the accused of an offense charged; (C) Reduce the punishment; or (D) Adversely affect the credibility of any prosecution witness or evidence. (b) Disclosure by the defense. Except as otherwise provided in subsection (f) and paragraph (g)(2) of this rule, following information to trial counsel: the defense shall provide the (1) Names of witnesses and statements. (A) Before the beginning of the trial on the merits, the defense shall notify trial counsel in writing of the names and contact information 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 trial counsel, the defense shall also— (i) Provide trial counsel with the names and contact information of any witnesses whom the defense intends to all at the presentencing proceedings under R.C.M. 1001(d); and (ii) Permit trial counsel to inspect any written material that will be presented by the defense at the presentencing proceeding. its innocent (2) Notice of certain defenses. The defense shall notify trial counsel in writing before the beginning of trial on the merits of its intent to offer the defense of lack of mental ingestion, or alibi, responsibility, or introduce expert to intent 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 ingestion defense, the place or places where, and the circumstances under which the defense claims the accused innocently ingested the substance in question, and the names and addresses of the witnesses upon whom the accused intends to rely to establish any such defenses. (3) Documents and tangible items. If the defense requests disclosure under subparagraph (a)(2)(A) of this rule, upon compliance with such request by the Government, the defense, on request of trial counsel, shall permit trial counsel to inspect and to copy or data, papers, photograph photographs, tangible objects, or copies or portions of any of these items, or, in the case of buildings or places or portions thereof, inspect or photograph, if— documents, books, (A) the item is within the possession, custody, or control of the defense; and (B) the defense intends to use the item in the defense case-in-chief at trial. (4) Reports of examination and tests. If the defense 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 trial counsel to inspect the results or reports of any physical or mental examinations and of any scientific tests or experiments made in connection with the particular case, or copies thereof, if the item is within the possession, custody, or control of the defense; and — (A) the defense intends to use the item in the defense case-in-chief at trial; or (B) the item was prepared by a witness who the defense intends to call at trial and the results or reports relate to that witness’ testimony. (5) Inadmissibility of withdrawn defense. If an intention to rely upon a defense under paragraph (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. (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 evidence or material previously requested or required to be produced, which is subject to discovery or inspection 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 inspect evidence, subject to the limitations in paragraph (e)(1) of this rule. No party may unreasonably impede the access of another party to a witness or evidence. interview witnesses and to (1) Counsel for the Accused Interview of Victim of Alleged Offense. (A) Upon notice by counsel for the Government to counsel for the accused of the name of an alleged victim of an offense whom counsel for the Government intends to call as a witness at a proceeding, counsel for the accused, or that lawyer’s representative, as defined in Mil. R. Evid. 502(b) (3), shall make any request to interview that victim through the special victims’ counsel or other counsel for the victim, if applicable. II-41 for the (B) If requested by an alleged victim who is subject to a request for interview under subparagraph (e)(1)(A) of this rule, any interview of the victim by lawyer’s counsel representative, as defined in Mil. R. Evid. 502(b)(3), shall take place only in the presence of counsel for the Government, counsel for the victim, or if applicable, a victim advocate. (2) [Reserved] accused, or that (f) Information not subject to disclosure. Nothing in this rule shall be construed to require the disclosure of information protected from disclosure by the Military Rules of Evidence. Nothing in this rule shall require the disclosure or production of notes, memoranda, or similar working papers prepared by counsel and counsel’s assistants and representatives. (g) Regulation of discovery. (1) Time, place, and manner. The military judge may, consistent with this rule, specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just. (2) Protective and modifying orders. Upon a sufficient showing, the military judge may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Subject to limitations in Part III of the Manual for Courts-Martial, if any rule requires, or upon motion by a party, the military judge may review any materials in camera, and permit the party to make such showing, in whole or in part, in writing to be inspected only by the military judge in camera. If the military judge reviews any materials in camera, the entirety of any materials examined by the military judge shall be attached to the record of trial as an appellate exhibit. The military judge shall seal any materials examined in camera and not disclosed and may seal other materials as appropriate. Such material may only be examined by reviewing or appellate authorities in accordance with R.C.M. 1113. (3) Failure to comply. If at any time during the court- martial it is brought to the attention of the military judge that a party has failed to comply with this rule, the military judge may take one or more of the following actions: (A) Order the party to permit discovery; (B) Grant a continuance; (C) Prohibit the party from introducing evidence, calling a witness, or raising a defense not disclosed; and II-42 (D) Enter such other order as is just under the circumstances. This rule shall not limit the right of the accused to testify in the accused’s behalf. (h) Inspect. As used in this rule “inspect” includes the right to photograph and copy.