III. INTRODUCTION AND RECEPTION OF EVIDENCE

§ 43.1. Generally.

§ 43. Offer of Proof

The rule expressed in paragraph 154c, MCM, 1951, as to the offer of proof is consistent with the practice in federal criminal procedure and the rules in the federal procedure relating to offers of proof are generally translatable to trials by court-martial. In federal criminal procedure an accused has a right to make an offer of proof where the court refuses to hear certain evidence which he feels material and necessary to his defense and it is error to refuse the accused the right to do so. The purpose of the rule is twofold: (1) to inform the court of the nature of the evidence that the accused desires to offer so that the court may intelligently consider its relevancy, materiality and competency, and (2) to enable the reviewing authorities to determine from the record of trial whether the proposed evidence was competent and its exclusion prejudicial error. (Citing Iva Ikuko Toguri D'Aquinov v. U. S., 192 F2d 338; U. S. v. Peckham, 105 F Supp 775; U. S. v. Smith (No. 2739), 3 USCMA 680, 14 CMR 98; Elder v. U. S., 202 F2d 465; McCutchan v. U. S., 70 F2d 658; 53 Am Jur, Trial, §§ 99, 100). Normally mere conversation between the court and defense counsel, or argument by defense counsel, does not constitute an offer of proof. Generally, to be sufficient, the offer of proof should set forth in detail the substance of the expected testimony, or other excluded evidence, and a mere offer to prove conclusions of fact may be insufficient to constitute a valid offer of proof. (Citing Iva Ikuko Toguri D'Aquinov v. U. S., 192 F2d 338; Elder v. U. S., 202 F2d 465; U. S. v. Wicoff, 187 F2d 886; Bradley v. District of Columbia, 20 App DC 169; Burt et al v. U. S., 139 F2d 73, cert den 321 US 799, 88 L ed 1087, 64 S Ct 936; 53 Am Jur, Trial, §§ 100, 101; cf. Moffatt v. U. S., 232 F 522, 536.) The burden of making a sufficient offer of proof, where one is necessary, is upon the accused and his counsel and the general rule is that an appellate agency will not find prejudicial error in the exclusion of evidence offered by accused at trial unless a sufficient offer of proof was made at trial and is a part of the record. (Citing Beauharnais v. Illinois, 343 US 250, 266, 96 Led 919, 72 S Ct 725; Elder v. U. S., 202 F2d 465; Christoffel v. U. S., 200 F2d 734; DeForrest v. U. S., 11 App DC 458; Gillars v. U. S., 182 F2d 962; Zamora v. U. S., 112 F2d 631; Sarkisian v. U. S., 3 F2d 599; 3 Am Jur Appeal and Error, § 354; 53 Am Jur, Trial, §§ 100, 101.) ACM 10050, Graalum (1955) 19 CMR

Sufficiency of offer of proof with respect to inconsistent statements of witness, see ACM 10050, Graalum, WITN § 105.1.

IV. INSTRUCTIONS AND CHARGES

§ 53. In General

Instructing or advising court during recess, see United States v. Walters, supra § 31.1.

§ 53.41. Citing or quoting statutes, authorities, generally. See 53 Am Jur, Trial §§ 543, 544, 572.

In the course of his instructions on the elements of the offenses, the law officer told the members of the court that he would give them "the citations for all this" for their own information when he finished. The court closed for deliberations and shortly thereafter reopened and requested that they would like a considerable time to "sleep" on the matter so that the individual members could consult the Manuals and the citations quoted by the law officer. The court requested a recess until the next morning and no objection was voiced to the recess by the defense. The court members were provided with case citations by the law officer, but the record does not show what citations were furnished the court, nor when nor how they were given to the court.

Held that:

if the accused objected to this submission of the cases to the court, he should be entitled to have an appellate tribunal pass on the legal correctness of the contents of those cases in relation to the facts of the case (see U. S. v. Chaput (No. 687), 2 USCMA 127, 7 CMR 3). Here, he is deprived of that substantial right by the deficiencies in the records. On the other hand, if the accused was unaware of the reference, the submission of the cases would be tantamount to a private communication between the law officer and the court, which is presumed to be prejudicial. In the instant case, the presumption of improper influence has not been overcome (cf. U. S. v. Walker (No. 2649), 3 USCMA 355, 12 CMR 111).

the cases cited by the law officer plainly were intended as part of the instructions and a record which does not contain all of the instructions is clearly deficient in a vital part. (Citing U. S. v. Whitman (No. 2168), 3 USCMA 179, 11 CMR 179.)

—if a trial judge refers to decided cases as a part of his instructions to the jury, prejudicial error does not necessarily arise (Notary v. U. S. (CA8th Cir 1926), 16 F2d 434); but if the cases cause confusion, or if the jury is permitted to use them for the purpose of determining for themselves what law should be applied to the case, then prejudice is present (U. S. v. Chaput (No. 687), 2 USCMA 127, 7 CMR 3).

- to permit the court to separate and go home after arguments had been concluded and the law officer had completed his instruction for the purposes of studying cases and considering them in their deliberations on the findings, in and of itself, is so dangerous a practice that it will be looked upon as reversible error.

the accused's failure to object to the court's request for a recess cannot, under the circumstances, be regarded as a waiver of the error. If the accused had objected to the law officer's reference to the cases, there would be no necessity for a second objection when the recess was requested. On the other hand, if defense counsel was uaware that the court had been given cases to consider, he may not have understood the significance of the

court's request for a recess. U. S. v. Lowry (No. 3888), ↳ USCMA 448, 16 CMR 22.

§ 53.45. Referring court to Manual, generally.

After fully instructing on all pertinent principles of law and giving the required charges as to the presumption of innocence, rule of reasonable doubt, and burden of proof, the law officer instructed the court that in addition to the instructions he had given the court should observe the rules set forth in par 74a, MCM, 1951, and that the proper method of voting on findings could be found in par 74d of the Manual. He refused to give an instruction requested by the defense that the court should not supplement the law officer's instructions by referring to the Manual. Held: Where the law officer's instructions and charges to the court comply with the mandate of UCMJ, Art 51(c), a reference by the law officer in amplifying instructions to the provisions of the Manual and the court's access to the Manual during its deliberations, is not contrary to or inconsistent with the provisions of Art 51(c). Nor is the long established practice of the service of permitting the court to have access to the Manual throughout the trial contrary to or inconsistent with the Code. Therefore, for error to be successfully assigned to such practice, it is necessary that specific prejudice be demonstrated by a showing of a reasonable possibility that the accused was prejudiced thereby. In the instant case the content of the law officer's instructions constituted adequate compliance with Art 51(c) apart from any need for reference by the court to the Manual and the amplifying instructions of the law officer referring the court to the Manual cannot, in any way, be construed as prejudicial to the accused. The law officer therefore did not err in refusing to give the requested instruction that the court not supplement the law officer's instructions by referral to the Manual. (Citing UCMJ, Art 36; MCM, 1951, par 53a, p 73; appx 8a; ACM 1458, Worley, 3 CMR (AF) 424, 435; CM 353183, Phillips, 9 CMR 186; CM 363294 (reh), Moses, 14 CMR 278; U. S. v. Rhoden (No. 153), 1 USCMA 193, 2 CMR 99; ACM 4266, Borreson, 3 CMR 680 and other cases.) ACM 8768, Doyle, Hain & Gaskey (1954) 17 CMR 615.

§ 55. As to Elements of Offense

§ 55.5. Failure to instruct court.

One convicted of unpremeditated murder on a trial under the Articles of War and the Manual for Courts-Martial, 1949, neither of which required the law member to instruct the members of the court in open court regarding the elements necessary to establish the offense charged, lesser offenses included, or the right to selfdefense, was not deprived of due process where the law member instructed in open court on the presumption of innocence, reasonable doubt, and burden of proof as required by law at that time but failed to instruct on the elements of unpremeditated murder and voluntary manslaughter or on self-defense. White v. Humphrey (CA 3rd, 1954) 212 F2d 503.

Failure to instruct on an element of an offense as not cured by the evidence, see ACM 9837, Rand, WASTE, ETC OF PROP § 32.7. Insufficiency of instructions on elements of offense as not waived by failure to point out deficiency where instructions given were in the language of the Manual, see United States v. Jett, DISOBED § 35.3.

§ 55.9. Lesser included offenses.

Although the accused had pleaded not guilty, the law officer, after stating the elements of the alleged desertion and the lesser offense of absence without leave, added that the court should, "in view of the accused's plea, find him guilty of the lesser included offense of absence without leave." Held: Considering the instructions as a whole and the fact that the members of the court knew that the accused had not pleaded guilty to the lesser included offense of absence without leave and were not misled or confused by the portion of the law officer's instructions erroneously referring to the pleas of the accused as having been guilty pleas to the lesser included offense of absence without leave, the rights of accused were not prejudiced by the law officer's slip of the tongue, especially in view of the fact that counsel for the accused did not object to the instruction at the time it was given and apparently the instruction went unnoticed. ACM 9035, Bishop and Koch (1954) 16 CMR 899.

Effect of failure to instruct in open court on lesser included offenses on a trial under the Articles of War and the Manual for Courts-Martial 1949, see White v. Humphrey, supra § 55.5.

§ 56. As to Presumptions of Innocence, Burden of Proof, etc. § 56.1. Generally.

See 53 Am Jur, Trial §§ 747 et seq.

While instructing the court on the defense of mistake of fact, the law officer stated that the accused must establish the mistake of fact beyond a reasonable doubt. Held: The instruction was erroneous, inasmuch as it shifted to the accused the burden of establishing that he lacked the criminal intent alleged, wherea S the government always bears the burden of establishing the accused's guilt beyond a reasonable doubt (Minner v. U. S. (CA 10th Cir 1932), 57 F2d 506). Furthermore, the erroneous instruction was not cured by the portion of the law officer's charge which correctly stated the legal formula concerning reasonable doubt and burden of proofWhen two instructions are mutually inconsistent it cannot be determined which one was accepted by the court, nor can it be said that the finding would not have been different had the burden of proof on this question been placed where it belonged (Price v. U. S. (CA 5th Cir 1953), 200 F2d 652; Drossos v. U. S. (CA8th Cir 1924), 2 F2d 538, 539). United States v. Rowan (No. 3635), ↳ USCMA 430, 16 CMR 4.

The accused was charged with desertion terminated by apprehension. The testimony of a state highway patrolman was to the effect

that after the accused had been arrested for an alleged offense of auto theft he revealed his identity and the fact that he was absent from the Air Force without authority. The accused stated to him that he wished to turn himself in rather than be apprehended. In the course of his instructions the law officer stated that if the court found that the accused did, in fact, turn himself in, or at least pass on information to the civil authorities that he was in the Air Force, in order to escape civil prosecution, then the court must find the accused was apprehended by a preponderance of evidence. He also instructed that if it found from a preponderance of evidence that the accused, in order to escape the wrath of the civil authorities, disclosed his military status, the court could find him guilty of apprehension. Held: The two instructions mentioned above could have been reasonably construed by the court as permitting a finding of guilty of apprehension by a preponderance of evidence rather than beyond a reasonable doubt. Although the court previously had been informed that if it failed to find apprehension beyond a reasonable doubt the allegation of apprehension must be excepted from the specification and had been charged as to the rule of reasonable doubt in accordance with UCMJ, Art 51(c), there is no way of knowing which of the two standards the court applied in making its finding of apprehension. The accused was entitled to a clear and unequivocal charge that in order to convict his guilt must be established beyond a reasonable doubt. (See U. S. v. Rowan (No. 3635), 4 USCMA 430, 16 CMR 4, 10; U. S. v. Crescent-Kelvan Co., 164 F2d 582.)

Held also: While a plea of not guilty stands, a defense counsel cannot be permitted to waive a right so fundamental as that of the accused to have the court charged that in order to convict guilt must be established beyond a reasonable doubt. Accordingly, any error in the instructions given was not waived by a reason of the fact that the defense counsel expressly stated concurrence in the instructions given. ACM 10188, Wilson (1955) 18 CMR 878.

§ 56.9. Defining reasonable doubt.

See 53 Am Jur, Trial §§ 751 et seq.

After the law officer charged the court on the presumption of innocence and the effect of reasonable doubt, and pointed out specifically that the burden of proving the accused's guilt beyond a reasonable doubt rested on the government, he instructed the court that "a court-martial which acquits because, upon the evidence, the accused may possibly be innocent, falls as far short of appreciating the proper amount of proof required in a criminal trial as does a court which convicts on a mere possibility that the accused is guilty." Held: The law officer's definition of reasonable doubt in accordance with the precise wording of par 74a (3), MCM, 1951, is not objectionable as placing the burden of establishing a reasonable doubt on the accused. Considering the instructions in their context, the challenged phrasing amounts to no more than an explanatory summary of the meticulous definitions of reasonable doubt expressed in the sentences which preceded it. Moreover, defense counsel took