(concurring);
I concur. The United States Navy-Marine Corps Court of Military Review found that trial counsel’s nondisclosure to the accused of this rape victim’s medical and psychological records and the victim’s post-trial statements made during deliberations constituted error. Unpub. op. at 3, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Webster, 1 M.J. 216 (C.M.A.1975). The Court of Military Review concluded that the error would not have affected the outcome of the trial and affirmed. Unpub. op. at 4. My review of the record of trial leads me to the same conclusion that Chief Judge Everett reaches. Accordingly, I join him in reversing the decision of the court below.
Although the post-trial statements made by the victim were inculpatory rather than exculpatory, the startling difference between the two versions of what happened on the night in question raises doubts as to the general believability of the witness. This information may have created a reasonable doubt about the accused’s guilt.
If the Government receives information during the trial that a witness has changed his testimony after having testified, I would require the Government to disclose the change to the accused and to the military judge. If the discovery occurs prior to announcement of the sentence and if the accused so moves, the military judge has the option of reopening the trial for the purpose of presenting the evidence to the court-martial. In considering the motion, I would adopt the same test that is used to determine if a new trial would be warranted by the discovery of new evidence. “[T]he newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused.” Para. 109ii(2)(c), Manual for Courts-Martial, United States, 1969 (Revised edition). See ' R.C.M. 1210(f)(2)(C), Manual for Courts-Martial, United States, 1984. See also R.C.M. 1210(f)(3). Of course, the military judge has broad discretion to “permit a party to reopen its case” in the interest of justice. See R.C.M. 913(c)(5).