Last month, The Army Lawyer published an article authored by Marine Major G.K. Logan entitled “Zealous Advocacy, Professionalism, and the Military Justice Leader.” Major Logan’s article explores the difference between zealous advocacy, which the adversarial system demands, and zealotry, which is abhorred by the rules of professional conduct and prevailing standards of civility.

Beginning on page 8, the article singles out discovery practice as being an area in need of special attention by military justice managers, where subordinate counsel may need to be reminded that “discovery does not belong to the adversary system.” W. Bradley Wendell, Rediscovering Discovery Ethics, 79 Marq. L. Rev. 895, 898 (1996). To make his point, Major Logan uses United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015) (CAAFlog case page) as a case study. As readers will recall, the Stellato case has been the source of much commentary, on this blog and outside the military justice community – see here, here, and here.

After chronicling, as CAAF termed it, at 74 M.J. 476, the Stellato prosecution’s “almost complete abdication of discovery duties,” Major Logan concludes that the case demonstrates the danger of conflating zealotry with zealous advocacy. It “showcases the consequences of misguided zealous advocacy and incivility.”  Zealous Advocacy, Professionalism, and the Military Justice Leader, at 10. To drive the point home, the article includes some of the colorful language that Senior U.S. District Court Judge Wayne E. Alley, a former Army JAG who retired as a Brigadier General, used in an order denying a motion to dismiss in Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24, 1989):

Defendant’s Motion to Dismiss or in the Alternative to Continue Trial is denied. If the recitals in the briefs from both sides are accepted at face value, neither side has conducted discovery according to the letter and spirit of the Oklahoma County Bar Association’s Creed. This is an aspirational creed not subject to enforcement by this Court, but violative conduct does call for judicial disapprobation at least. If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.

It is so ordered this 24th day of February 1989.

Wayne E. Alley
U.S. District Judge

Quoted in James W. McElhaney, Staying Out of Jail: Keeping your license and staying out of trouble, ABA Journal, Vol. 79, No. 9 (Sept. 9, 1993), also quoted in Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996)).

18 Responses to “Scholarship Saturday: The unprofessonal zeal of the zealot”

  1. Philip D Cave says:

    I have long said that discovery issues are at the top of a list of reasons for delays in trial and difficulties with effective representation of a client.  “Slow-rolling” discovery is the most common problem.  The two most common reasons for slow-rolling are, as in Stellato, trial counsel waiting until closer to trial, and trial counsel who don’t start active trial preparation until the week or so before trial, and then you get a deluge.  Bill Cassara and I each have several examples of getting hundreds, if not thousands of pages of discovery just before trial.  I think Bill has the lead on me with about 4000 pages the day before trial(?)

    The prudent prosecutor will resolve doubtful questions in favor of disclosure.” . . . Such disclosure will serve to justify the trust in the prosecutor as “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”
    Kyles v. Whitley, 514 U.S. 419, 439 (1995) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976); Berger v. United States, 295 U.S. 78, 88 (1935)); and see United States v. Bowser, 73 M.J. 889 (A.F. Ct. Crim. App. 2014).
    Information which is material should be disclosed when it is “of value” to the accused, which in most instances means when it first comes into possession of the government.  Holding discovery until some date–preferral, or deadline set–is not proper disclosure under any applicable discovery rule.  See generally, Kyles v. Whitley, 514 U.S. 419 (1995) (See ABA Standards for Criminal Justice, Prosecution Function and Defense Function 3-3.11(a) (3d ed. 1993) (“A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused”); ABA Model Rule of Professional Conduct 3.8(d) (1984) (“The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense”).).

    The point for me is that it’s not just a question of giving, it’s a question of when.  While Kyles is mainly a Brady case, there’s no reason that the question of timing should not be applied to all discovery.
    I will say that I think the lessons are taking hold over the last year or so.  Many Air Force and Army trial counsel are providing usual discovery items (full ROI, agent notes in particular) close after referral and some are providing Brady information they gain in their interviews of a witness.  And fewer are balking when they get a common standard request.

  2. Dew_Process says:

    Two points.
     
    First:  Major Logan’s otherwise informative and instructive article, overlooks the ABA’s Standards for Criminal Justice: The Prosecution Function and the Defense Function (4th ed. 2015), which in part, substantially revised the Standards in the prior 3rd ed. (1993).  Of relevance here is Standard 3-5.4(e), The Prosecution Function, which states:
     

    A prosecutor should timely respond to legally proper discovery requests, and make a diligent effort to comply with legally proper disclosure obligations, unless otherwise authorized by a court.  When the defense makes requests for specific information, the prosecutor should provide specific responses rather than merely a general acknowledgement of discovery obligations.  Requests and responses should be tailored to the case and “boilerplate” requests and responses should be disfavored. [Emphasis added].

     
    Here is a LINK to the revised Prosecution Function Standards, and a LINK to the revised Defense Function Standards.
     
    No express “timing” requirements were inserted because the ABA felt that “Local Rules” and judicial discretion should control.  While aspirational, it should be noted that SCOTUS regularly turns to these Standards when criminal procedure questions appear before it, especially in IAC cases under a Defense Counsel’s Duty to Investigate cases.
     
    Second:  I take Kyles v. Whitley, 514 U.S. 419, 439 (1995), a bit further than my esteemed colleague, Phil Cave does. Yes, at it’s core, Kyles involved a Brady issue, but the majority decision went on to identify a number of what most prosecutors would never recognize as Brady material, so I think it important, consistent with the ABA Standard quoted above, to set out those specifics (as applicable), in a “specific discovery demand.”  Quoting from Kyles, we thus now have:
     

    Withholding information that “the investigation was limited by the police’s uncritical readiness to accept the story and suggestions of an informant whose accounts were inconsistent to the point . . . .”
    “[T]hat the lead police detective who testified was either less than wholly candid or less than fully informed . . . .”
    “[T]hat the informant’s behavior raised suspicions that he had planted both the murder weapon and the victim’s purse . . . .”
    “[T]hat one of the four eyewitnesses crucial to the State’s case had given a description that did not match the defendant and better described the informant. . . .”
    “[T]hat another eyewitness had been coached . . . .”
    “[T]hat there was no consistency to eyewitness descriptions of the killer’s height, build, age, facial hair, or hair length.”
    Evidence as to “the reliability of the investigation in failing even to consider Beanie’s [informant] possible guilt . . . .”
     

    Just as trial counsel need to be educated on this aspect of Kyles, so do military judges. Thus it is incumbent on defense counsel to set forth these issues in Discovery Requests and to point out that they are being made specifically under the authority of Kyles.  Lastly, trial counsel – especially relatively new ones – need to understand that within the parameters of IAC, defense counsel must, regardless of how cooperative TC may be, file discovery demands to help prevent bogus IAC claims down the road.  One quotation generally suffices:
     

    [quoting] “It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.” 1 ABA Standards for Criminal Justice 4–4.1, p. 4–53 (2d ed.1980).
     

    Bobby v. Van Hook, 558 U.S. 4, 7 (2009).
     

  3. Philip D Cave says:

    I agree completely with my esteemed colleague DP–of course.  And in Smith v. Cain, 132 S. Ct. 627, 181 L.Ed. 2d 571 (2012), the made it clear IMHO that inconsistencies in notes of interviews are Brady.
    The AF PR rules state: The Air Force Standards for Criminal Justice (AFSCJ or the Standards) are directly adapted from the American Bar Association (ABA) Standards for Criminal Justice. The Standards have been specifically adapted to the unique needs and demands of Air Force legal practice–with the Standards as an attachment.
     
    The DON PR rules advise: (6) The “ABA Standards for Criminal Justice: The Prosecution Function,” (3d ed. 1993), has been used by appellate courts in analyzing issues concerning trial counsel conduct. To the extent consistent with these Rules, the ABA standards may be used to guide trial counsel in the prosecution of criminal cases. See United States v. Howe, 37 M.J. 1062 (NMCRS 1993); United States v. Dancy, 38 M.J. 1 (CMA 1993); United States v. Hamilton, 41 M.J. 22 (CMA 1994); United States v. Meek, 44 M.J. 1 (CMA 1996).
     
     
    The link for the Army PR seems to be broke, not just here, but in Google.

  4. Isaac Kennen says:

    Excellent commentary.
    I’d add that Van Hook’s admonition that defense counsel must conduct an investigation needs to be read in context of Strickland‘s discussion of the topic:
     

    [T]he [defense counsel’s] investigation need not be exhaustive. It must include “‘an independent examination of the facts, circumstances, pleadings and laws involved.’ [citation omitted]. The scope of the duty, however, depends on such facts as the strength of the government’s case and the likelihood that pursuing certain leads may prove more harmful than helpful.

     
    466 US 668, 680-681 (1984).
     
    This qualifying standard seems significant, at least to me, for a couple of reasons.  First, defense counsel’s investigation must be “independent.”. Relying on discovery requests – even very specific ones – might not suffice.  Second, defense counsel should think carefully about what sort of Pandora’s Box they might open by a particular line of inquiry – especially if they plan on having the prosecutor act as their investigator through the use of specific discovery requests.
     

  5. Zachary D Spilman says:

    The Army pubs site (https://armypubs.army.mil/) is throwing a 503 error right now. It’s probably down for maintenance. 

  6. Philip D Cave says:

    Relying on discovery requests – even very specific ones – might not suffice.

     
    Yes, agreed.  There certainly can be times you want to find information without alerting the trial counsel.  This thinking was similar to that we used to consider at the Article 32 hearing.  How much discovery did you want to give the prosecution?  While the defense has lost “discovery” at the 32, so has the prosecutor.  Keep in mind reciprocal discovery obligations if you intend offering the information in your case-in-chief.

  7. BC says:

    Keep in mind reciprocal discovery obligations if you intend offering the information in your case-in-chief.

    That is a fine aspiration.  I have never seen any defense counsel actually turn reciprocal discovery over until the day of trial — and then usually ten minutes before it is introduced — under the pretense that they had not affirmatively decided on whether they intended to offer such evidence before trial.
     

  8. Dew_Process says:

    Zeke – I didn’t mean to imply that a defense counsel could get by “investigating” a case merely via well crafted discovery requests. They are only one arrow in the proverbial quiver and certainly, one always needs to be cautious in avoiding Pandora’s Box.
     
    BC – don’t take this as an ad hominem attack because it’s not. But it does serve as a good reminder that so-called “reciprocal discovery” really is not. While SCOTUS has repeatedly emphasized that there is no per se constitutional “right” to discovery, the discovery cases (Brady, Kyles & Giglio, etc.), point out that discovery by the Accused is based upon the Fifth Amendment’s Due Process clause, which is a right expressly granted to the Accused for which there is no corresponding right for the government. That of course is consistent with a prosecutor’s ethical duty to seek justice, not a conviction.
     
    Admittedly, some defense counsel fail to properly respond to government requests for discovery, i.e., they either just ignore it (probably incurring the wrath of the presiding judge), or fail to articulate any bona fide basis for not complying.  For example, in United States v. Nobles, 422 US 225 (1975), the Court applied the “work-product privilege” to defense investigators’ reports, but noted that by calling the investigator as a witness, the defense waives that privilege. So, e.g., a proper defense response to a government request for the defense investigator’s report(s) would be something to the effect that, they are privileged, work-product documents, which if waived IAW Nobles, will be produced.
     
    Justice Black in Williams v. Florida, 399 U.S. 78 (1970), noted:
     

    The defendant, under our Constitution, need not do anything at all to defend himself, and certainly he cannot be required to help convict himself. Rather he has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process the defendant has a fundamental right to remain silent, in effect challenging the State at every point to: “Prove it!” 399 US at 113 (Black, J., concurring in part and dissenting in part).

     
    This was a likely follow-on observation to Justice White’s comments in Wade v. United States:
     

    To this extent, our so-called adversary system is not adversary at all; nor should it be.But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. [Emphasis added]
     

    Wade v. United States, 388 U.S. 218, at 256-58 (1967) (White, J., dissenting in part, concurring in part).

  9. Isaac Kennen says:

    The Strickland necessity that the defense counsel conduct an independent examination of the facts in each case does not seem to sit comfortably with 1) the lack of dedicated investigative personnel available to the military defense function, at least when compared to the special agents who perform the investigative part of the prosecution function, and 2) the inability of the defense counsel to employ subpoenas in comparison to the prosecutor’s power to use that process under RCM 703(e)(2)(C)(1)(c).
     
     

  10. Philip D Cave says:

    2) the inability of the defense counsel to employ subpoenas in comparison to the prosecutor’s power to use that process under RCM 703(e)(2)(C)(1)(c).

    I tried to do subpoenas under the old statute.  Got shot down by the MJ when I tried to enforce them.  But I agree, there are very few states that allow such in criminal trials–the weight of authority is against them.  The current statute does not allow the defense the opportunity.  Perhaps the solution is to allow the defense to make an ex-parte request of the military judge, for either a subpoena or court order, in which the defense explains what it’s looking for and gives justification, and then the MJ can issue or not.
    As to investigators and experts–agree wholeheartedly.  The various “commissions” don’t seem to give that the attention it is due.  IMHO that shows an abdication of duty on the part of Congress.  It throws a lot of time and money into (mainly) sexual assault prosecutions; cases where the assistance is usually most needed.  While I appreciate Congress has a duty to victims and complaining witnesses, they have a corresponding duty to the service member accused of a crime.  That duty requires them to ensure a military justice process that is fair to all.
    I |
     
     
     
     

  11. Tami a/k/a Princess Leia says:

    Can a paralegal get a search authorization from a military magistrate?  For example, in investigating a client’s innocence, there is probable cause to believe the AV made a false allegation, but MCIO won’t investigate, but there is probably evidence of, or related to, the false allegation on that phone.  Not a defense counsel, because then the defense counsel becomes a witness.

  12. BC says:

    Dew_Process, no offense taken at all.
    Reciprocal discovery is certainly not a constitutional right rooted in the Fifth Amendment, but neither is the majority of R.C.M. 701.  Most of those rights and obligations–like R.C.M. 701(b)–are wholly statutory.  But R.C.M. 701(b)(3) imposes a statutory obligation upon the Defense that is flagrantly violated on a routine basis (at least in my jurisdiction).  When the Defense has an obvious and articulated theory of their case, and the Defense is in possession evidence that is clearly is support of that theory, that evidence ought to be disclosed in accordance with the rule.  The problem is that the rule uses the word “intends,” which means no evidence is ever going to be excluded as long as the defense counsel will say that they just decided to introduce it.
    The purpose of the discovery rules is to serve justice by providing both sides with all of the information available to the other so that the case may be decided on the merits with maximum expediency–not by surprise or tactics.  Which is why Nobles is not particularly relevant–yes, the defense cannot call a private investigator and still hide behind work-product.  Still, the prosecution will be reviewing this evidence in the 30 minute recess the judge provides them. 
    I’m not sure I would change the current rule.  If anything, the simple fix is for the judiciary ought to be reigning in defense counsel with their pretrial orders–requiring that they provide the prosecution any written materials in their possession that they intend to produce three days (or whatever) before trial and requiring a showing of good cause for any evidence produced after that date.
    More importantly, it should rest on the individual ethics of the attorney.  These specious assertions that the defense counsel did not know what evidence it would be introducing until 10 minutes before it was introduced amounts–in my view–as a violation of AR 27-26, Rule 3.3, governing candor to the tribunal. 
    As an institution, the JAG Corps seems to forget that ethical rules govern attorneys with individual clients as well–like SVCs and defense counsel.  Obviously trial counsel have extremely important and unique obligations under Rule 3.8 (and I’ve spent a lot of time worrying about Rule 3.8(a) in some of our Art. 120 cases), but all of the other rules apply to DCs and SVCs as well.  I see military justice managers on the government side holding their own people to a very high standard, but considerations regarding ethics and professionalism tend to get lost among concerns with tactics and IAC when it comes to defense and SVC leadership.

  13. BC says:

    For example, in investigating a client’s innocence, there is probable cause to believe the AV made a false allegation, but MCIO won’t investigate, but there is probably evidence of, or related to, the false allegation on that phone.  Not a defense counsel, because then the defense counsel becomes a witness.

    You wouldn’t need to contact a military magistrate.  Assuming the evidence is relevant and necessary, you would send a request for production to the prosecution requesting that trial counsel subpoena the victim’s phone for a digital forensic examination.  If the victim refused to turn over the phone, you could have the military judge issue a warrant of attachment to produce the victim and force her to comply with the subpoena.  The victim could file a motion to quash the subpoena if it is unreasonable or oppressive.

  14. Philip D Cave says:

    You wouldn’t need to contact a military magistrate.  Assuming the evidence is relevant and necessary, you would send a request for production to the prosecution requesting that trial counsel subpoena the victim’s phone for a digital forensic examination.  If the victim refused to turn over the phone, you could have the military judge issue a warrant of attachment to produce the victim and force her to comply with the subpoena. 

     
    Have you tried this?  This is a common issue (and motion) in most 120 cases these days–it ain’t that simple to get such a DFE.  Just had another military judge deny a DFE of a complaining witness’s phone (and yes, I’ve had other MJ’s order a DFE).  I cannot think of a 120 case in the last 6-7 years that haven’t had text messages play a central role.
     
    In the spirit of my good friend DP, don’t take the following personally.
     
    1. If the defense does not submit a discovery request, the prosecution is not entitled to limited reverse discovery.  RCM 701(b)(3)(4).
     
    2. If the defense does submit a discovery request, then the prosecution is entitled to discovery of evidence the defense intends offering in its case in chief.  RCM 701(b) (3) (4).
     
    3. Regardless of 1., and 2., the defense is not required to disclose evidence it intends to introduce on cross-examination.  And you should have most of this unless you’ve not prepared and investigated your case.
     
    4. DP have been discussing discovery offline.  When the evidence comes from the accused, must the defense give reverse discovery until the decision is made that the client will testify?  Trigger alert.  There is Supreme Court and CAAF case law on this.
     
    5. What’s the remedy if the defense has slow-rolled discovery—assuming arguendo that’s what happened.  A delay or continuance.  What does the TC argue when the defense wants time to review the new discovery they get—often a request over TC objection!  What does the defense usually get—a delay or continuance.  You mention potential ethical issues with delayed defense discovery.  Isn’t there an issue, under a different rule(s), when the defense gets hundreds or thousands of pages a day or so before trial, asks for a delay, and the TC objects?
     
    You’ve all likely read the more recent report of the  Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) (CAAFlog page)?  As in other reports, the Committee seems to bemoan the dearth of convictions.  I think some of this is attributable to discovery issues.  (I won’t rehearse the other reasons—too much.)  When a flawed prosecution fails, that’s partly attributable to the prosecution itself.  Several you will know that I have been a trial counsel several times and also a staff judge advocate several times.  FITW let me give you some thoughts from the prosecution side (I consider the SJA and CA as part of the prosecution team).
     
    1. As a trial counsel, I trained myself and the counsel who worked for me to immediately gather all the discovery materials out there that were likely to be requested by the defense and as much of everything else as possible.  Surely (no I’m not calling you Shirley) after getting pretty much the same discovery requests in a few cases the TC has a good idea of what the defense will ask for in discovery.  If the defense requests something in discovery then they must think there is some important to be found, especially when they are very specific—don’t you want to know what that is?  Why get the discovery for yourself?
     
                a. I wanted to look at the discovery myself.  Why wouldn’t you want to do that?  And, the earlier, the better to get a full understanding and evaluation of your case.  Forget about the defense, don’t you want to know what kind of case you have?
     
                b. My rule was that the defense could come to me or one of my counsel to see the whole file (I kept work-product separately).  Why?  Certainly, I may be giving the defense keys to their case, but in most cases, the defense is going to get the file anyway.  And, there are any number of cases where early defense access causes them to negotiate a PTA.  (BTW, the Supremes have decided some cases over the last few years which find IAC in pretrial negotiations where the DC did not ensure they had sufficient discovery before negotiating.  You may be tempted to say that it’s the DC’s problem, but it’s also yours (or likely your successor’s) problem if the case bounces on appeal.)
     
                c. I told myself and my counsel to investigate their case themselves and not rely solely on what’s in the ROI.  Why?  As a prosecutor and SJA, I experienced ROI’s that were not complete or which skewed witness statements or the summary of an interview.  Don’t you want to know that, or do you want to be surprised later at trial by the defense counsel who has done their preparation?
     
                d. The “old” 32 could be a hassle at times.  But it had value.  Why?
     
                            (1) It forced me and the others TC’s to prepare for the 32.  What I’m seeing is TC who don’t put much effort into the 32 these days.  Why should they for a paper drill?  Because the other part of what I’m seeing is that they don’t start preparing their own case until close to trial—bad.
     
                            (2) I got discovery from the defense.  Not always a lot of discovery, but anything you got could be helpful in preparing your case down the line.
     
                            (3) I got the opportunity to triage the case and whether it should be prosecuted or we find an alternate solution.
     
                            (4) I got the chance to see my witnesses on the stand taking questions from the defense.  In the process, I got some discovery from the defense just from the questions they asked, or sometimes the questions they didn’t ask.  I got to evaluate the witnesses in-court demeanor.  Armed with a trial run, you can prepare for the actual trial better.  What would you rather have?  Surprise questions at the 32 or trial in front of the fact-finder? 
     
                            (5) The 32’s were largely “private” affairs—how often did observers or the curious show up to what is a public hearing?  Of course, this also meant you had to take some pre-32 time to prepare the witness, again another rehearsal.  Did some witnesses approach the 32 with fear and trepidation—sure, but that’s where preparation comes in.  In the process, we were able to triage the case better and to brief the SJA, or the SJA has better information to give an informed recommendation to the CA, etc., etc., etc.
     
                e. If the TC isn’t productive, the issues are likely to become an issue for the judge.  Why waste the judge’s time, the court reporters time, the bailiffs time, and the commands time—how does that help the orderly process of a court-martial?  Judges are pretty mostly adept at figuring out the non-cooperative TC (and DC).
     
                f. This is specific to 120 cases, but you the TC have an interest in getting a complaining witness’s cell phone DFE’d. 
     
     
    The BLAB.  What I’m trying to get at here are the many reasons why it’s beneficial to a TC go give thorough and early discovery and to work cooperatively with the defense without involving the court.  A collateral effect will a better prepared case, and possibly more convictions.

  15. k fischer says:

    BC,
     
    If I were a trial counsel and DC made a discovery request, did not respond to reciprocal discovery, and attempted to introduce evidence that was not disclosed to the TC, then I would very clearly object that the Defense did not provide the piece of evidence in discovery.  Then, when DC requests the 39(a) (if they are smart) and argues that they had “just made the decision to introduce the evidence in their case in chief,” then I would use their opening statement against them and bring out the arguments that would indicate they intended to introduce the evidence in their case in chief from the beginning.  Then, after the 39(a) when the Members were back in the room and the MJ announces to the panel that the exhibit is coming in, I would make a motion for a continuance, so the panel members could hear that the case is being delayed because the Defense comply with their discovery obligation.
     
    And, defense counsel ought to just not engage in discovery, if they have something that is really good they don’t want the Government knowing.  I did that in a case, and my client was fully acquitted when I introduced the exculpatory evidence the Government could not find.
     
    Here’s a good hypo:  Client is detailed to you on a single spec 120 offense for one act of forcible rape on one occasion.  He made no statement to CID and immediately asked for an attorney.  He comes to your office, says that the sex was consensual, and he has the surreptitiously recorded MPEG to prove it.  He shows you the MPEG recorded on his phone and you see on the phone that the alleged vic was on top for oral, cowgirl/reverse cowgirl for intercourse, talking dirty, laughing, and was spooning with the accused for 30 minutes before she got up, got dressed, and left.  In fact, the client tells you that the complaining witness and he actually had sex on two occasions, both of which he recorded and were strikingly similar. 
    1.  Do you immediately ask him for a copy of the video?
    2.  Do you file a discovery request?
    3.  Do you take a copy of the video to the TC and try to get the charges dropped?  Why/Why not?
    4.  If you file a discovery request, do you provide the video to the TC in discovery?  If not, then why?
    5.  How do you introduce the video during trial?
    6.  If the answers above result in you waiting until your cross examination of the alleged victim to disclose to the Government and introduce the video, then does this strategy comport with or run afoul of Rule 4.4, AR 27-26?
     
    I had this issue arise during one of my consultations after Article 120c was passed prohibiting the surreptitious recording of ones private area.  I know what I had considered doing, but I’d be interested in what some of my colleagues would do.

  16. stewie says:

    I think there are multiple “right” answers kf, but it probably helps if you know your prosecutors as it were.
     
    So, if it were me as TC/COJ, and you showed me that video, barring something else major, you’d probably have an advocate in me for dismissal (all other things being equal).  But other TC/COJ might be so tied into believing their client that they’d work hard to try and make it go away/explain it.  Which would dilute its impact at trial.
     
    Obviously if you ask for a copy of the video, you’ve got it, and it could be subject to discovery (unless you don’t file a discovery request which was option 2).
     
    I would think I would introduce the video on cross of the alleged victim to directly rebut claims she makes on the stand. I do not see how that violates 4.4, as the intent is to raise inconsistencies, not embarrass the victim. The other option I would think is to put the client on the stand and have him walk through the video since he can authenticate it as the one who took it, but of course that opens him up to cross…but that route might be more effective, and it would require the gov to bring the victim back on re-direct to explain it (although she might have more time to come up with an explanation).
     
    I think multiple ways to skin this cat.

  17. k fischer says:

    All good answers.  Thanks for taking the time to discuss the issues.  I’d be concerned about taking a copy as it is evidence of a crime per Article 120c or disclosing it to the SVP to get the charge dismissed out of fear that the Vic would adjust fire and try to explain the video and how it was still a “rape” along with the charge sheet being amended to add a n offense under 120c.
     
    I’d have the client play the video in my office and make notes as to what happened and what was said.  On cross I’d go through the entire video with “isn’t it true that you (describe action). Isn’t it true that you said, “(repeat statement using my best impression of her voice).”

  18. k fischer says:

    If she denied it, then I’d ask for a 39(a) and disclose the video.  Just to be on the safe side, I wouldn’t engage in discovery to ensure that a reciprocal duty did not exist.  Some judges differ in their opinions about DC’s duty to provide notice of their exhibits, even if those exhibits aren’t going to be admitted in the case in chief.