United States v. Romano

United States Court of Appeals for the Armed Forces · 1997 · Evidence

46 M.J. 269 (1997)

Updated August 22, 2026

EvidenceBradyKyles v. Whitleymaterialityexculpatory evidenceimpeachment evidenceattorney-client privilegeMil.R.Evid. 502

Facts

The prosecution arose from allegations that appellant, an officer, dated A1C Mucci, an enlisted airman in his squadron, and later conspired with others to obstruct the resulting investigation. Before trial, the defense specifically requested impeachment and credibility evidence, but the Government did not disclose testimony given at another Article 32 investigation by Major Northup and Master Sergeant Uloth recounting statements by Mucci and TSgt Mitchell that supported the defense and undercut Mucci's credibility. Mucci later testified for the Government under testimonial immunity, and the defense sought to use statements she had made to her attorney and disclosed during the prior Article 32 proceeding. The military judge excluded those attorney communications as privileged and also denied discovery based on work-product grounds.

Issue

Whether the Government's failure to disclose favorable statements by A1C Mucci and related witnesses violated Brady and prejudiced appellant; whether Mucci's compelled immunized testimony at an Article 32 waived her attorney-client privilege; and how the work-product privilege should be handled in military discovery on rehearing.

Rule

Suppressed favorable evidence is material under Brady when, considered collectively, there is a reasonable probability that disclosure would have produced a different result, meaning the suppression undermines confidence in the verdict rather than merely showing evidentiary insufficiency. Confidential attorney-client communications remain privileged unless waived by the client, and compelled testimony under a grant of immunity does not by itself constitute a voluntary waiver of that privilege. Work-product protects documents prepared in anticipation of trial that reveal an attorney's mental processes, and disputed materials should be reviewed in camera to separate protected thought processes from discoverable matter.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a court-martial in San Diego, Captain Lena Ortiz is charged with obstructing an investigation into improper contacts with a subordinate. The Government's case depends largely on testimony from Airman Joel Mercer, but trial counsel does not disclose that, during an earlier unrelated military proceeding, a reserve judge advocate in Virginia heard Mercer say he had repeatedly changed his story because base legal personnel were pressuring him.

If the defense had specifically requested impeachment evidence, what is the strongest argument for reversal based on the nondisclosure?

Explanation. The governing rule is that favorable suppressed evidence is material when there is a reasonable probability of a different result, meaning the suppression undermines confidence in the verdict. The inquiry is not a sufficiency-of-the-evidence test. Where credibility is the central issue, undisclosed impeachment evidence from a source outside the local prosecution apparatus can be especially significant.