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.