attendance of witnesses at the trial, and the ruling of the law officer at the trial on a motion for appropriate relief for the issuance of compulsory process to obtain the presence of the same witnesses involves an independent exercise of judgment by each of the parties and the law officer will not review the convening authority's ruling in the matter but will restrict his ruling to an independent determination of the merits of the motion before the court. Accordingly, the law officer's treatment of the motion as raising a de novo issue was proper. (Citing MCM, 1951, par 115.)

nesses.

an accused does not have an unqualified right to the issuance of compulsory process to compel the attendance of persons as witHis right to the issuance of such process is subject to the qualifications that there be a showing that the person's expected testimony is material and necessary and that the person's deposition will not suffice to enable the accused to fully present his defense and obtain a fair trial. (Citing UCMJ, arts 46 and 49; MCM, 1951, par 115a; U. S. v. DeAngelis (No. 999), 3 USCMA 298, 12 CMR 54.)

- the denial of the defense request for the personal attendance of six of the witnesses was proper since an evaluation of their expected testimony shows that it would have constituted incompetent hearsay or opinion evidence, or would have constituted inadmissible impeaching testimony on irrelevant and immaterial matters, or would have concerned matters that were either unrelated to the issues or too remote and farfetched to have any probative value. Under such circumstances the materiality and necessity for the expected testimony were not shown.

- the denial of the defense request as to the seventh witness was not prejudicial even though his testimony was shown to be relevant since evaluation of his expected testimony shows that it would have been merely cumulative to the testimony of another witness. - depositions, to the extent lawfully authorized, are considered ordinarily a reasonable and adequate method of presenting testimony. Thus, in military law, in instances where the Code authorizes the use of deposition evidence, the presentation of testimony in deposition form to a court-martial is considered a reasonable and adequate method of presenting testimony except where it is shown by the accused that the witness' deposition is not an adequate alternative for his personal attendance. In the instant case the accused failed to show that the presentation of the testimony of the seven witnesses to the court in deposition form was not an adequate alternative for their personal attendance. Accordingly, the denial of the defense pretrial request and motion for appropriate relief that compulsory process be issued was not error. (Citing U. S. v. Sutton (No. 1718), 3 USCMA 220, 11 CMR 220; U. S. v. DeAngelis (No. 999), 3 USCMA 298, 12 CMR 54; MCM, 1951, par 115a.)

the accused cannot complain that the testimony of the proposed witnesses was not obtained and presented to the court in deposition form where, as here, he was represented by qualified defense counsel and the record clearly demonstrates that such

counsel knowingly abstained from requesting that the depositions of the witnesses be taken in the event he was unsuccessful in obtaining compulsory process for their personal attendance. (Citing U. S. v. DeAngelis (No. 999), 3 USCMA 298, 12 CMR 54.) ACM 10050, Graalum (1955), 19 CMR

§ 5.15. Materiality of Testimony.

Materiality of testimony of witness for whose attendance compulsory process is sought, see ACM 10050, Graalum, supra § 5.1.

§ 6.1. Generally.

§ 6.

- Refusal to Appear or Testify

Ordering German witness refusing to testify in court-martial proceedings to be turned over to the Allied High Commission Court, see CM 365144, Lane, SELF-INCRIM § 6.31.

II. COMPETENCY

§ 25. Children

§ 25.1. Generally.

On the trial of the accused for certain offenses involving a child, the child testified by deposition. The deposition showed that the deponent was thirteen years of age, was in the eighth grade, attended church, believed in God, understood the meaning of the oath, would be punished should he fail to relate the truth, and would tell the truth on all matters pertaining to the subject under inquiry. Furthermore, his answers concerning the subject of the inquiry were clear, responsive and intelligent. Held: Upon the above evidence the law officer was fully justified in concluding that the witness was competent. (Citing U. S. v. Marshall and Shelton (No. 548), 2 USCMA 54, 6 CMR 54.) The competency of a child witness testifying by deposition may be established by means other than personal appearance before either the law officer or the court. This conclusion is inescapable since the sole justification for permitting deposition evidence is the unavailability of the deposing witness and if the witness were required to make a personal appearance in order to establish his competency this would preclude the use of his deposition. (Citing MCM, 1951, par 145a; U. S. v. Barcomb (No. 726), 2 USCMA 92, 6 CMR 92. Not following NCM 211, Tyson, 10 CMR 563.) ACM 9442, Shade (1954) 18 CMR 536.

III. PRIVILEGED RELATIONS AND COMMUNICATIONS

§ 43.1. Generally.

§ 43. Attorney and Client

After the charges against the accused were referred for investigation, a certain caption was designated to serve as defense counsel. At the conclusion of the pretrial investigation this same captain prepared a memorandum of the testimony which would probably be offered against the accused at his subsequent trial. This memorandum was submitted to the staff judge advocate of the accused's com

mand who had directed the captain to prepare it. Although the paper prepared was originally untitled, the staff judge advocate subsequently inked in the heading "Memo for trial counsel" and the document became a part of the allied papers to which the trial counsel had access in the preparation of his case against the accused. Held: The obligations of an attorney under the attorney-client privilege extend beyond not disclosing his client's confidential communications. He is not permitted to assist in the prosecution of one whom he represents, or has represented professionally in the same. or a related matter at any prior time. This requirement of unswerving loyalty from the lawyer who represents an accused person must be regarded as equally exacting whether he serves at the trial proper, or during the formal investigation preliminary thereto. And the circumstance that the lawyer's status as counsellor had terminated prior to the rendition of his assistance to the prosecution in no way insulates or purifies his later conduct. (Citing In re Boone, 83 F 944, 952; People v. Gerold, 265 Ill 448, 107 NE 165, 177; ACM 8270, Bryant, 16 CMR 747; 5 Am Jur, Attorneys at Law, § 66; Canons 6 and 37, Canons of Professional Ethics of the American Bar Association and numerous other cases and authorities.) Under this rule, the captain's preparation of the document in question was error amounting to more than a mere procedural irregularity. His conduct created at least a distinct appearance of wrongdoing. The document furnished a measure of aid to the government, albeit indirect and possibly slight, as well as indicating more than a fair risk that the captain, in fact, assisted in the prosecution of his former client in violation of the attorney-client privilege. (Citing U. S. v. Haimson (No. 4549), 5 USCMA 208, 17 CMR 208; U. S. v. Blau (No. 4472), 5 USCMA 232, 17 CMR 232; T. C. and Theater Corp. v. Warner Bros. Pictures, 113 F Supp 265; U. S. v. Coulter (No. 2786), 3 USCMA 657, 14 CMR 75; U. S. v. Clisson (No. 4635), 5 USCMA 277, 17 CMR 277; U. S. v. Crunk (No. 3653), 4 USCMA 290, 15 CMR 290; U. S. v. Fair (No. 1188), 2 USCMA 521, 10 CMR 19.) Furthermore, the actions of the captain who prepared the memorandum and the staff judge advocate who ordered him to do so were inherently prejudicial to the substantial rights of the accused and reversal of the accused's conviction is required under the doctrine of general prejudice. [Latimer, J., concurring in the result agrees that error was committed when defending counsel failed to represent the accused with undivided fidelity but he states that the doctrine of general prejudice should not be relied on.] United States v. Green (No. 5486), 5 USCMA 610, 18 CMR 234.

§ 43.3. Relationship of attorney and client, generally.

In the clemency section of the staff judge advocate's review it was stated that the opinions of the accused's defense counsel and those of persons associated with him in the guardhouse had been elicited and that from their evaluation of the accused it appeared that he was a rather slow, dull, dim-witted individual who would do what he was told but who lacked initiative and the ability to think for himself. Held: Even assuming that the estimate of the ac

cused was derived entirely from the defense counsel, there was no improper divulging of privileged information. There is nothing to indicate any wrongful motive on the part of the defense counsel or the staff judge advocate and in the absence of any such showing the presumption of regularity on the part of the certified defense counsel and impartiality of the staff judge advocate must be adhered to. (Citing ACM S-6460, Malanaply, 10 CMR 883; ACM 6252, Otero, 8 CMR 795. Distinguishing ACM 8270, Bryant, 16 CMR 747.) An attorney cannot, in the same case, take any position contrary to the interest of his client or in any way adverse to him and he is under a legal obligation not to divulge privileged matter resulting from the relationship. However, prejudice does not result from the use by defense counsel of language which may appear derogatory to the accused but which is not inconsistent with advocacy. Under certain circumstances, and considered in connection with the reasons motivating the use of seemingly derogatory language, it may be deemed favorable to the accused. (Citing ACM 8270, Bryant, 16 CMR 747; ACM S-6460, Malanaply, 10 CMR 883; ACM 6252, Otero, 8 CMR 795.) Where the defense counsel are qualified military lawyers, certified by The Judge Advocate General, it can be presumed that everything they do is in aid of the accused. This presumption must persist, unless there is clear and convincing evidence of negligence or such wrongful motives on the part of counsel as to manifest a complete absence of judicial character. (Citing U. S. v. Hunter (No. 359), 2 USCMA 37, 6 CMR 37; ACM 8270, Bryant, 16 CMR 747.) ACM 9961, McCune (1955) 18 CMR 798.

[See 58 Am Jur, Witnesses §§ 460 et seq.]

Violation of attorney-client privilege by appointed defense counsel signing post-trial clemency report containing recommendations adverse to the accused, see ACM 8270, Bryant, SENT & PUN § 11.1.

Interview with legal officer as creating attorney-client relationship, see ACM 9225, Brownell, CRT-M § 25.3.

V. EXAMINATION

§ 61. In General

§ 61.5. Examination by court or law officer.

Permitting challenged member of court to examine accused before acting on challenge, see ACM 7761, Schreiber, CRT-M § 71.1.

$65.1. Generally.

§ 65. Leading Questions

The law officer overruled defense objections to leading questions on the ground that he was following the principle that if one party is allowed leading questions on direct examination the opposite party will be allowed to use such questions. Held: Law officers should endeavor to keep leading questions at a minimum and their discretion in overruling objections to this type of question should not be influenced by a mistaken desire to allow both counsel to lead the

witnesses. However, the error herein was minimized by the factor that the witnesses were medical experts and the defense did lead more often than the trial counsel. NCM 376, Watson (1954) 18 CMR 391. [See 58 Am Jur, Witnesses § 570.]

§ 71. Refreshing Memory; Use of Memoranda

§ 71.1. Generally.

Admissibility of confession of co-actor on ground that it is "past recollection recorded" where co-actor is testifying as witness and claims lack of memory, see NCM 377, Brown, EVID § 123.1.

§ 79.1. Generally.

VI. CROSS-EXAMINATION

§ 79. Scope and Extent, Generally

On direct examination a witness at a bribery trial testified that the accused and another asked him for sums of money to keep him off overseas shipment and the import of such testimoy was that the requests were seriously made. On cross-examination the defense was prevented from questioning the witness as to whether or not the requests were made in jest. Held: Although the extent of crossexamination of a witness rests within the sound discretion of the law officer, his ruling in this instance limiting the extent of cross-examination constituted an abuse of discretion and was error since whether the requests were made in jest was material and relevant to the guilt or innocence of the accused. Moreover, such error was not ameliorated by the law officer's statement that he would permit the defense to recall the witness as a defense witness and develop his testimony in that fashion. However, not every improper limitation on cross-examination requires reversal and this instance the improper limitation was not prejudicial since admissions by the accused positively negative any claim that the matter was a jest. (Citing MCM, 1951, par 149b (1); U. S. v. Heims (No. 1497), 3 USCMA 418, 12 CMR 174; ACM 3109, Cauley (BR), 3 CMR (AF) 746; ACM 6071, Dunn, 9 CMR 763; ACM S-5206, Nelson, 9 CMR 736.) ACM 10050, Graalum (1955) 19 CMR-.

§ 81. Accused as Witness

§ 81.3. Scope and extent of examination, generally.

On a trial for murder, there was evidence that a Korean had been apprehended by a sentry at a bomb dump and taken in to the Air Operations Office where the accused, the Air Operations Officer, told the sentry to take the Korean back to the bomb dump and shoot him. On cross-examination of the accused, the trial counsel asked him if he had at any time subsequent to the incident told a certain person to spread word around that the Korean victim was trespassing on the bomb dump and was shot. The accused replied that he did not recall saying that. The trial counsel made no attempt to prove that the accused made any such statement to the person named. The defense requested the law officer to instruct