A military judge has broad and significant authority to sanction the government for discovery violations under Rule for Courts-Martial (RCM) 701. The rules of discovery require the prosecutor (trial counsel) to provide the defense with a wide range of evidence and information in a timely manner. If the prosecutor fails to do so, the military judge can impose sanctions to enforce the rules, protect the accused’s right to a fair trial, and punish the government’s non-compliance.
The sanctions are typically progressive. For a minor or inadvertent violation, the judge might first issue a simple order compelling the prosecutor to produce the withheld evidence by a specific deadline. If the violation continues or is more serious, the judge can grant the defense a continuance or a delay of the trial to give them time to review the late-disclosed evidence. The judge can also choose to suppress the evidence, meaning the prosecutor is barred from using the withheld material at trial, which can significantly weaken their case.
For the most serious discovery violations, such as when a prosecutor intentionally hides exculpatory evidence (a “Brady” violation), the judge has the most drastic remedies at their disposal. They can give the court-martial panel a special instruction, telling them to infer that the missing evidence was unfavorable to the government. In the most flagrant cases of prosecutorial misconduct, the military judge has the ultimate authority to dismiss the charges with prejudice as a sanction for the government’s failure to provide a fair process.