Discovery and production rules are fairly simple- if you can distinguish one from the other, which is not always an easy task. For example, depending on where you are in the discovery rules, the word material can have three different meanings: it can mean a thing, matter, or information; it can mean matter that is significant to the preparation of the defense case; or it can describe a test for prejudice on appellate review. The definition of material that comes from the Brady v. Maryland' analysis is different than the definition of material as it is used in Rule for Courts-Martial (RCM) 701(a)(2). Next, practitioners may have trouble understanding when to apply material as the test for prejudice for a discovery violation instead of harmless beyond a reasonable doubt. Last, practitioners may have trouble distinguishing military (from RCM 701(a)(2)) and investigative agency (from RCM 701 (a)(6)3/Brady analysis).
Eric R. Carpenter,
Simplifying Discovery and Production: Using Easy Frameworks to Evaluate the 2009 Term of Cases
, 2011 Army Law 31
Available at: http://ecollections.law.fiu.edu/faculty_publications/48