United States V. Luke, 69 MJ. 309 (C.A.A.F. 2011)
Procedural History: Luke was convicted in 1999 of two specifications of indecent assault of a shipmate and was sent to two years confinement and a bad-conduct discharge. Evidence produced against Luke included DNA analysis and testimony by Mr. Phillip Mills of the United States Army Criminal Investigation Laboratory (USACIL). Luke's conviction was affirmed in 2004. Initially, the CAAF granted review as to whether the lower court erred when it upheld the government's failure to disclose evidence that it had prepared to use on re-direct examination of a government witness. However, in 2005, Mr. Mills was suspended from his job at USACIL due to improper practices as an examiner. The CAAF decided to remand to deal with that issue before dealing with the discovery issues in the case. In 2009, after numerous post-trial procedures, the NMCCA found that the impeachment value of the newly discovered evidence (the final report of the investigation of Mr. Mills) would not have made a more favorable outcome probable due to the strength of the government's case. Following that opinion, CAAF once again granted review on the original issue of discovery violation.
The CAAF had to decide whether the newly found evidence of Mr. Mill's misconduct made the conviction unreliable. The court's discussion of this issue highlights what is "material" to the preparation of the defense under RCM 701(a)(2).
The government called a statistician to testify about the probability that Luke's DNA was in the DNA mix that was found on some evidence. On cross examination, the defense attacked some of his testimony, and on re-direct, the government brought out a new piece of demonstrative evidence that addressed the defense concerns. That calculation had not been provided to the defense during discovery. The military judge ruled that this was proper rebuttal evidence. At the appeal, the government failed to argue the military judge's position. Instead, the government argued that the undisclosed calculation had been arrived at recently and was only presented in response to defense cross-examination.
Holding: The CAAF said it could not tell from the facts if the calculation was prepared prior to the cross-examination (disclosure required) or after the cross-examination (disclosure not required) but held that even if there was a discovery violation, the violation was not prejudicial. The Court noted that RCM 701(a)(2) is broad - it applies to what the government plans to introduce in its case-in-chief, but also applies to matter that is material to the preparation of the defense. The CAAF observed that under this second prong, "If the [matter] was prepared pretrial, it should have been provided to the defense in response to their discovery request pursuant to RCM 701(a)(2) regardless of when the Government intended to use it." The Court further noted that "material to the preparation of the defense" also includes matters that would assist the defense in formulating a strategy.