Thompson gives leeway to military law enforcement to not gather certain statements for tactical reasons.
In Thompson, the underage victim had trouble remembering all of her interactions with the accused, so she wrote them down on a timeline. The interviewing CID agent deliberately did not gather this writing. The victim eventually lost it. After her trial testimony, defense counsel moved to strike under R.C.M. 914 because the government could not produce the timeline. The trial judge denied the motion, as did the ACCA.
R.C.M. 914 implements the Jencks Act, 18 U.S.C. § 3500, requiring that, upon motion, a pertinent statement of a witness that is in the government's possession be disclosed after his or her testimony.
Thompson argued to C.A.A.F. that the government constructively possessed the statement because CID had access to it and "consciously avoided collecting it." C.A.A.F. had not previously considered this constructive possession argument. The Court was unconvinced, ruling that there was no R.C.M. 914 violation because the written statement was never in the possession of the United States.
Chief Judge Ohlson concurred in the result because the statement was not lost in bad faith. But he disagreed that the statement was not in the government's possession since it had been offered to government agents and pertained to the witnesses' testimony. See generally United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015); United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015).
Chief Judge Ohlson's "grave concern" is that the majority approach
will incentivize government agents "to avoid the consequences of R.C.M. 914’s clear language and intent simply by [purposely] failing to take adequate steps to preserve statements." Muwwakkil, 74 MJ at 192. As stated in Appellant’s brief, a holding such as the majority’s will "encourage law enforcement personnel to intentionally avoid collecting relevant evidence for fear it might not fit the government’s theory of the case and [then] they [will] have to disclose [any exculpatory] evidence to the defense."
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