investigation could be alleviated, and could be subsequently referred to trial if judgment warranted; second, a continuance could be granted to permit the defense to examine the prosecutrix prior to her testifying for the government in order that the defense could further prepare for cross-examination and plan its trial tactics.

- there was no prejudice by the failure or refusal to permit the accused to make an additional pretrial statement since ample opportunity to testify or remain silent was afforded him at the trial.

the accused's fundamental rights were not materially prejudiced by the failure to permit him to cross-examine the prosecutrix since the defense counsel's cross-examination of the prosecutrix at the trial indicated complete and careful preparation and familiarity with the statements of the prosecutrix.

- any error committed by the law officer in failing to compel the prosecutrix to submit to full pretrial interrogation by the defense is immaterial for the same reasons stated in resolving the motion to quash. ACM 8408, Everett (1954) 16 CMR 676.

At the trial of the accused he took the stand to deny the allegations against him and, following his testimony, he was cross-examined by the trial counsel with respect to suspected omissions in his pretrial investigation story. The accused maintained that he had included in the account given the investigating officer all of the details with respect to which he was challenged at the trial but that the investigating officer had omitted them from the report of investigation. The investigating officer was called as a witness and he stated that he did not recall the items mentioned at the trial but he admitted that certain circumstances narrated by the accused had been omitted from the written statements taken during the Art 32 investigation. The law officer thereupon ruled that the statements signed before the investigating officer could not be used to impeach the accused. At no time during the court-martial hearing was there a defense assertion that the summary of the accused's testimony set out by the investigating officer in these documents constituted such a defect in the pretrial investigation as to form a ground for halting the hearing. Held that:

-the pretrial investigation was not defective by reason of any omissions in the statements made by the accused at the investigation. Under the Uniform Code of Military Justice, the record of a trial by general court-martial must be a verbatim one. However, there is no such requirement with respect to the testimony secured during the investigation commanded by UCMJ, Art 32 and the report of such investigation is sufficient if accompanied by a statement of the substance of the testimony taken on both sides. The statements executed by the accused reflect clearly that at all times he denied the truth of the charges laid against him. Under the circumstances the presentation of further details of these denials could not have aided him in obtaining the dismissal of the charges without trial, nor could they have affected the ultimate decision of the convening authority to refer the charges for trial. Further

more, the defense would have discovered nothing novel through the inclusion of additional details in the accused's written pretrial statements. Also, there was no suggestion of dissatisfaction on the accused's part with the completeness of the two statements prepared by the investigating officer for his signature. even assuming that the pretrial investigation was defective, failure to hold a proper pretrial investigation does not operate to deprive a general court-martial of jurisdiction. (Citing Humphrey v. Smith, 336 US 695, 93 L ed 986, 69 S Ct 830; Hearings before the Senate Committee on Armed Services, 81st Cong, 1st sess, on S. 857 and H.R. 4080, pp 170–1.)

the absence of court-martial jurisdiction may not be the subject of waiver. However, since failure to effect a pretrial investigation does not affect jurisdiction, it may be waived. In the instant case, the defect complained of was not raised by the defense prior to the entry of a plea, nor was it relied on at anytime as a basis for relief other than that granted by the law officer. Accordingly, there can be no reversal here based on the claimed defect in the pretrial investigation. (Citing U. S. v. Garcia (No. 3086), 5 USCMA 88, 17 CMR 88; U. S. v. McCormick (No. 895), 3 USCMA 361, 12 CMR 117; MCM, 1951, par 67b; cf. U. S. v. May (No. 241), 1 USCMA 174, 2 CMR 80; U. S. v. Rhoden (No. 153), 1 USCMA 193, 2 CMR 99.

even assuming that the pretrial investigation was characterized by error and that the error had been properly raised, the accused was not prejudiced since the inadequacies in the pretrial statements could have prejudiced him only if omissions therein had been brought to the court's attention as a basis for an inference that his trial testimony amounted to a recent fabrication and in the instant case the law officer barred cross-examination of the accused based on the pretrial statements. This ruling averted all danger of prejudice. (Citing Humphrey v. Smith, 336 US 695, 93 L ed 986, 69 S Ct 830; U. S. v. Schuller (No. 4240), 5 USCMA 101, 17 CMR 101; U. S. v. Rhoden (No. 153), 1 USCMA 193, 2 CMR 99.) United States v. Allen (No. 5611), 5 USCMA 626, 18 CMR 250.

§ 41.27. Examination of witnesses by accused.

At the time of the investigation of rape charges pursuant to UCMJ, Art 32, the complainant was hospitalized and she attended the investigation in the company of a nurse. After a short period of examination the investigating officer discontinued the examination. He stated that the complainant appeared to him to be very near a state of shock, and that when the examination became increasingly difficult for her, he discontinued it with the agreement of the nurse. He reported the circumstance of the witness's physical condition to the staff judge advocate of the officer who directed the investigation and that officer, without consulting his principal officer, made a determination that the witness, because of her physical condition, was not available for examination at the pretrial investigation. On the basis that the witness was unavailable, the investigating officer concluded not to use the incomplete examination of her in

the report of investigation and he substituted a previous statement of the witness made to an OSI agent. The accused were afforded an opportunity to comment on this statement and a copy of the statement to the OSI was given counsel for the accused prior to trial. Held: While neither the Code nor the Manual defines what constitutes an "available witness" at a pretrial investigation within the meaning of the provision of UCMJ, Art 32, that the accused shall be given opportunity to cross-examine witnesses against him if they are available, a fair construction is that the phrase "available witness" is used in its general sense of being available for examination and that availability is not dependent solely upon the fact or a physical presence, but also includes other factors such as a state of physical health that will permit one to undergo examination. Assuming that there was an insubstantial compliance with UCMJ, Art 32, because the accused were not given an opportunity to cross-examine the complainant at the pretrial investigation, there was no prejudice since the conduct of the defense counsel at the trial showed that they were not hindered in their defense and were fully familiar with the issues raised by the complainant's testimony. Absent a showing of material prejudice to the substantial rights of the accused, a failure to comply substantially with the requirements of UCMJ, Art 32, is not such an omission as requires disapproval of otherwise legally sufficient findings and sentence. Accordingly, there exists no legal basis for setting aside the findings and sentence in the instant case based upon a claim of failure to comply with Art 32. (Citing UCMJ, Arts 34(d) and 59(a); MCM, 1951, pars 34a and 87c; U. S. v. Rhoden (No. 153), 1 USCMA 193, 2 CMR 99; ACM 8408, Everett, 16 CMR 676; ACM 4455, DeAngelis, 4 CMR 654; ACM 7395, Westergren, 14 CMR 560; ACM 6553, Mercer, 11 CMR 812.) ACM 8768, Doyle, Hain & Gaskey (1954) 17 CMR 615.

§ 43.3. Qualification.

§ 43. Investigating Officer

The UCMJ, Art 32, investigating officer had previously acted as investigating officer in a related case. However, other than pointing out that the investigating officer had already become familiar with most of the details of the incident in question, the defense did not show wherein he acted arbitrarily, capriciously, or unfairly in his conduct of the investigation of the charges against the accused and the accused and his counsel raised no questions as to the qualifications or impartiality of the officer at the time of the investigation. Held: Prior knowledge of the facts of the case does not disqualify an investigating officer, nor render his report and recommendations a nullity, so long as he has conducted a thorough and impartial investigation of all the matters set forth in the charges and specifications. (Citing UCMJ, Art 32(a); MCM, 1951, par 34a; ACM 5619, Woodworth, 7 CMR 582, 585.)

Held also: Even conceding that error was present in the appointment of the same investigating officer for both the companion case and the instant case, absent a showing of prejudice to the accused,

a failure to comply substantially with the requirements of UCMJ, Art 32, is not such an omission as requires disapproval of otherwise valid findings. (Citing UCMJ, Art 32(d); MCM, 1951, par 34a; Hearings before Committee on Armed Services on HR 2498, 81st Cong, 1st Sess (1949), pp 998-1003; U. S. v. Rhoden (No. 153), 1 USCMA 193, 2 CMR 99; ACM 6653, Mercer, 11 CMR 812; ACM 7395, Westergren, 14 CMR 560.) ACM 7761, Schreiber (1954) 16 CMR

639.

§ 45. Reference to Staff Judge Advocate or Legal Officer

§ 45.1. Generally.

A communication from the staff judge advocate of the officer exercising general court-martial jurisdiction to the trial counsel of the court-martial which tried the accused, in which the trial counsel was informed of the elements of the offense and the evidence available to establish those elements, does not indicate that the staff judge advocate had more than an official interest in the outcome of the case and it affords no basis for an inference that he had a personal feeling or interest in the outcome of the case so as to constitute him an accuser or prosecutor. (Citing ACM 8779, Ross, 16 CMR 579.) ACM 8900, Radford (1954) 17 CMR 595.

While serving as acting staff judge advocate, the law officer of the court which tried the accused signed and submitted the pretrial advice required by UCMJ, Art 34, in which the convening authority was advised that the expected evidence would establish the accused's guilt and trial by general court-martial was recommended. A certificate by the law officer stated that he signed the advice without reading or checking the file or knowing anything about the expected evidence because the regular staff judge advocate had told him that he had examined everything and directed preparation of the advice. A certificate by the regular staff judge advocate stated that he had directed preparation of the advice, that he had not given the acting staff judge advocate authority to exercise independent judgment and that he regarded the acting staff judge advocate's signing of the advice as an act done as his agent. Other papers showed that while the staff judge advocate was absent the Art 32 investigation was ordered, conducted and the report submitted. During the challenge procedure, the law officer's prior participation was not disclosed, both the trial counsel and the law officer having stated at that time that they knew of no grounds for challenge. A certificate by the trial counsel stated he submitted his file which included a copy of the staff judge advocate's advice to the defense counsel for use in preparing his case and a certificate by the defense counsel admitted he had received and used the trial counsel's files but denied that the defense was aware of the fact that the law officer had signed the pretrial advice.

Held that:

- the certificates of the two staff judge advocates show that the accused was deprived of his right to have a qualified staff judge advocate make an independent and professional examination of the

expected evidence and submit to the convening authority an impartial opinion as to whether it supported the charges. The fact that the acting staff judge advocate may have been acting as agent for the regular staff judge advocate is immaterial since the responsibility for the pretrial advice rests on the person holding the office of staff judge advocate when the advice is signed and the certificate of this officer states he signed without knowing anything about the evidence. Furthermore, accepting the claim of agency, the facts show that the regular staff judge advocate also overlooked his duty to examine the evidence since he was absent when the formal pretrial investigation was conducted and the report submitted and he could not have considered this report in directing preparation of the advice. [Latimer, J., dissenting.]

-the trial counsel and the law officer failed to comply with their affirmative duty to disclose the law officer's prior participation. Although the certificates of counsel indicate that the defense had available a file showing the signature on the advice, the accused cannot be charged with a waiver since it appears that the trial counsel had actual knowledge of the disqualification, but failed to disclose it as was his duty. (Citing MCM, 1951, par 62b, d, f. Distinguishing U. S. v. Glaze (No. 2078), 3 USCMA 168, 11 CMR 168.) [Latimer, J., dissenting, stated that except where a challenge is for any of the first eight grounds enumerated in par 62f, MCM, 1951, reversal for failure to disclose a ground for challenge is not required unless prejudice is shown and failure to disclose the law officer's prior participation as staff judge advocate is not enumerated in the first eight grounds of par 62f, nor was there any showing of prejudice since the law officer said he remembered nothing of signing the pretrial advice.]

- it is clear the staff judge advocate's advice was prepared without compliance with UCMJ, Art 34. Since this fictitious advice was given to the convening authority there can be no doubt he was influenced by it. These actions deprived the accused of important pretrial protections. When these deprivations are coupled with the failure of the trial counsel and the law officer to disclose the latter's previous connection with the case, reversal of the conviction is required.

the staff judge advocate's pretrial advice may be considered for the purpose of showing compliance with UCMJ, Art 34, and for appellate review of the grounds for challenge and, inasmuch as the advice may be considered in appellate review, papers intended as corrections to it may also be considered. Consequently, the board of review had the power to review the pretrial advice and its corrective certificates. (Citing CM 360188, Thorpe, 9 CMR 351, and cases cited therein; U. S. v. Anderten (No. 3122), 4 USCMA 354, 15 CMR 354; U. S. v. Walters (No. 3734), 4 USCMA 617, 16 CMR 191.) United States v. Schuller (No. 4240), 5 USCMA 101, 17 CMR 101, affirming CM 368224, 13 CMR 507.

Following the filing of additional charges against the accused, a reinvestigation was directed. Such investigation was held and the report forwarded through channels. This document arrived at corps