Such statement may be sworn or unsworn, on the discretion of the party, and shall be included in the record of proceedings or investigative report. (8) The right to make an argument at the conclusion of the presentation of the evidence. Even though a person has been designated as a party to an investigation, he may still be called as a witness. As a witness he has the same rights as has any other witness in regard to refusing to answer questions that would tend to incriminate or degrade him. Unlike an accused, a party has no special status as a witness simply because of his status as a party. If, however, in addition to being designated a party, a person has been formally charged with an offense under the UCMJ, he assumes the status of an accused and he cannot be called as a witness except at his own request. In addition, in accordance with Article 31 of the UCMJ, if a party or any other witness is accused or suspected of any offense, he must, before being interrogated, be advised of the nature of the offense of which he is suspected, advised of his right not to make any statement regarding that offense, and warned that any statement that he does make may be used against him. Further, any person in the armed forces, prior to being asked to sign any statement relating to the origin, incurrence, or aggravation of any disease or injury that he has suffered, must be advised of his right not to sign such a statement.

It should be noted that a party to an investigation has no right of challenge. However, in the interests of attaining an impartial investigation, if it should appear that an investigating officer or member of a board of investigation is unable to approach the fact-finding mission without bias, this fact should be reported to the convening authority who will then take the action he deems appropriate.

THE SECOND PROCEDURAL step of the investigative body after informing a person that he has been designated a party and explaining his rights as such, should be to specifically ascertain whether such person desires to be represented by counsel. If a party does request counsel, the investigative body should so advise the convening authority before proceeding any further. It should then recess or adjourn to permit the obtaining of counsel. Once counsel has been procured, the party should be readvised of his rights as a party in the presence of this counsel.

If a party has been designated during the course of the investigation, the record of pro

ceedings which have taken place up to the time of designation must be read to him unless there is a specific waiver of such reading. Any reasonable request by the party for the recalling of witnesses previously examined for the purpose of cross-examination should be granted if this is practicable. In case a witness cannot be recalled, cross-examination may be accomplished by deposition in a formal investigation, and by less formal means (such as correspondence) in an informal investigation.

At

During the later proceedings of the investigation, it may occur to a member during the testimony of a witness that because of what he reveals he should be designated a party. this time the member should move that the investigation be closed. Once the investigation has been closed to all but the members, this issue can be discussed and voted on. If the witness is to be designated a party, the investigation should be informed of the decision when the investigation is opened and thereupon the witness should be accorded and informed of all of his rights as a party. Testimony already given by this new party will remain in the record and is not subject to subsequent objection to the proceedings.

If, for any reason, it should be impossible or impracticable to secure the presence of a designated party or if a party should choose to waive any of his rights as such, appropriate notation or explanation must be made in the record or report of investigation.

THE ABSENCE OF a party during the investigation does not prevent the investigative body from proceeding with its inquiry.2 Normally, however, a reasonable delay will be granted unless such delay will materially hamper the investigative body in obtaining all of the facts. If a party is absent during a period in which the investigating officer or board receives real or documentary evidence, or the statements of witnesses, the party will be shown such evidence upon his return. As was true in the case of a party who was not so designated at the outset, any reasonable request by a party to cross-examine witnesses who have testified during his absence should be accorded favorable consideration.

2. A person in an unauthorized absence or desertion status shall be considered as having waived his rights as a party to the investigation as to that portion of the investigation which was conducted while he was in such status. Upon termination of the unauthorized absence or desertion, such a person shall, if practicable, be accorded the rights of a party as to any portion of the investigation which has not been completed.

GENERALLY SPEAKING, THE rights of a party should be accorded a person at the first indication that such person's conduct is subject to inquiry. The naming of a person as a party does not amount to any sort of accusation against him. On the contrary, it is the best way to protect such person's interests. Furthei more, it provides the possibility that a more complete, impartial picture of the incident in question will be developed through such person's representation during the proceedings, his cross-examination of witnesses, and his introduction of new evidence.

In this regard, it is highly recommended that should the conduct of deceased personnel be called into question and it appears that other persons involved may have interests which conflict with the interests of the deceased serviceman, the officer or members of a board should consider the practicability of making a request that an officer be appointed to represent the interests of the deceased person during the course of the investigation.

It is not difficult to appreciate the advantages of being duly-accorded the rights of a party, especially those of being represented by counsel during the course of the investigation, of confronting and cross-examining witnesses, and of presenting new evidence. Where there has been a failure to accord these rights, the curative action of allowing a person to examine the record and to make a statement in rebuttal is perfunctory and unsatisfactory by comparison. Thus, it is far better to make certain that a man is protected than to postpone making a decision until after his rights have been prejudiced.3

If it should develop during the course of the investigation that a party no longer appears to

3. Moreover, serious consequences may attach to the failure to accord the rights of a party to a person whose conduct becomes subject to inquiry. Such failure may preclude the use of the record of proceedings as evidence (Article 50, UCMJ). Likewise, unless there is strict compliance with the requirements for naming persons as parties and according them their rights, the proceedings of a fact-finding body may not be substituted for the hearing contemplated by paragraph 133b of the Manual and section 0101(b) of the Supplement, before non-judicial punishment is imposed. Such failure may also require the return of a record to the appointing authority to afford an individual the opportunity to examine the record and to make a statement in rebuttal concerning adverse action contemplated or taken against him, such as a letter of censure, misconduct determinations, or recommendation that the Department declare certain matter to be of official interest in his record. Moreover, these adverse actions may be so significant that the inadequacy of the opportunity which is afforded an individual, whose rights have already been prejudiced, to examine the record and attempt to refute evidence of such adverse matter by a statement in rebuttal, is a tenuous, if not illusory remedy. An officer appointed to conduct an investigation must be most diligent with respect to these important rights of a party.

be involved in a material degree in the matter under investigation, his designation as a party can be withdrawn by the investigative body. This change in the status of a person as a party may be at the party's request or upon the investigative body's own motion.

THE INVESTIGATION

IN THE CASE of a formal investigation, the investigating officer or board of investigation must employ the "hearing room methods" and procedures of a court of inquiry, where appropriate, and the record must be prepared and submitted in the same manner as prescribed for a court of inquiry. Beside differences in the echelon of command which is permitted to convene each type of fact-finding body, the major differences between the formal investigation and the court inquiry is the requisite composition of each, and the power of a court of inquiry to subpoena civilian witnesses.

A formal investigation may be conducted by a single officer or a board of two or more officers, none of whom will be administered an oath. A court of inquiry is always composed of at least three officers, and an oath must be administered to each such member. It is also mandatory that counsel and reporters be appointed to assist in a court of inquiry. Such appointments are discretionary in the case of a formal investigation.

In the case of an informal investigation, the investigating officer or board of investigation may determine the best method of eliciting the This necessary facts in the particular case. type of investigative proceeding is designed to permit the investigative body maximum flexibility in its fact-finding endeavors. The investigating officer or members of a board need not attempt to confine the investigation to the formalized, hearing room procedures. The investigative body may use whatever methods appear most advantageous under the circumstances. In the investigation of one incident it may be desirable to employ the procedure of a court of inquiry; in another, the signed statements of witnesses may suffice; and in still another, it may be appropriate to employ a combination of these methods.

UNLIKE THE FORMAL investigative proceedings, attendance of all members of an informal board of investigation is not compulsory during the receipt of all testimony (unless the convening authority has directed otherwise). 4. The court of inquiry is the only fact-finding body whose members are subject to the challenge of parties to such proceedings.

Assignment to an investigation, however, is the primary duty of any officer during the inquiry and such officer cannot absent himself from the investigation for the performance of his usual duties unless so directed by the convening authority. The absence of any member during the receipt of such testimony will be noted in the transcript or summary of the witness' testimony.

If the appointing order indicates that an officer possessing technical knowledge is appointed to an informal board of investigation for the limited purpose of utilizing his special knowledge and experience, such officer need not participate in parts of such informal investigation that do not require or concern his specialty. The preliminary statement in such cases will make clear any such limited participation by a member.

Informal investigations are not governed by the rules for obtaining evidence which govern formal investigative proceedings. However, constitutional and statutory restrictions must be observed, and a general observation of the spirit of such rules is conducive of a more orderly procedure.

Personal interviews with all available witnesses as well as personal inspections of places, equipment, and property involved in the incident under investigation, is desirable even in the informal investigation. However, where the witness is unavailable, the evidence which he has to offer may be received by deposition, affidavit, correspondence, or even by telephone, as dictated by the needs of the case. If obtained by telephone, the substance of the information provided by the witness must be reduced to writing and signed by the investigating officer or member of the board by whom such evidence is obtained, setting forth the date and time of the telephone conversation.

In conducting an investigation pursuant to the Naval Supplement, and preparing the report of investigation, the appointed investigating officer or members of a Board of Investigation should keep the fundamental purpose of such proceedings in mind. This purpose is to ascertain and report all the facts. Any pertinent legal principles, as for example those governing line of duty, conduct determinations, are of secondary importance during this stage of the proceeding. This does not mean that any laws or regulations which may be applicable to the particular investigation are not important or can be ignored by the investigating officer or members of a board. On the contrary, familiarity with pertinent laws or

regulations is essential in order to determine which facts are vital.

COLLECTING THE FACTS

THERE IS NO sure-fire method by which this completeness of information-this complete evidentiary picture-can be most successfully obtained in a given case. However, a few general observations may be of assistance.

For example, the spontaneous statement of a witness, relating his own observations in his own words is generally more desirable and enlightening than an interview composed solely of questions propounded by the investigating officer and answers to such questions by the witness. This method will often produce material information which might otherwise have escaped the investigating officer's notice. It is also good psychology to permit a witness to tell his own story, in the first instance, in his own words. Interruption during this initial recitation of his observations may be annoying and disconcerting to the witness. Of course the witness should not be permitted to wander without interruption and a few well-directed questions can be both useful and helpful to the witness.

When there is no requirement for a verbatim record, the investigating officer or member of a board should take notes, and reduce the salient and material points contained in the witness' statement to writing after the interview. Simple language should be used, embodying the witness' own manner of speech and expressions wherever possible.

It must be expected that even the most intelligent and cooperative witnesses who are left to judge for themselves what is pertinent to the investigation at hand tend to omit some material facts in their possession and to be ambiguous or obscure about others. It is therefore important that after the witness' story is told that the gaps be filled in and the material testimony be developed by intelligent quesioning of the witness. These questions and the answers can and should be recorded verbatim. If it later appears that a witness' testimony is in conflict with the testimony of other witnesses or other evidence of record, additional interviews should be obtained and the matter clarified. Additional interviews should also be sought and obtained when it becomes apparent as the proceedings progress that a witness who has already been interviewed may have material information in his possession which has not yet been elicited.

IN BRIEF, IT may be said that there is no magic formula or short-cut to acquiring the completeness of information which is so essential if the primary purpose of the factfinding is to be achieved. It is better to elicit too many facts than to be overly selective and omit a material fact. For example, often it becomes material to determine whether or not a man was intoxicated at the time of a particular incident. In order to formulate this determination, it is essential that the complete evidentiary picture as to the person's state of sobriety be carefully examined. In this regard, it should be noted that the results of a Bogen's test are inconclusive, standing alone, and constitute but one facet of the complete evidentiary picture as to sobriety. Yet reports are often submitted with little more than a statement, usually signed by a doctor, that the subject personnel had a certain Bogen's test result. If the investigating officer desires to properly perform his duties, he would in this case supplement such inconclusive evidence by intelligent questioning of witnesses as to the individual's general appearance and behavior, rationality of speech, muscular coordination, the quantity and nature of the alcoholic beverage consumed, the period of time involved in such consumption, and all other facts and opinions as to the extent to which an individual lacked sobriety. With the complete, accurate evidentiary picture thus presented, the determination as to intoxication can be readily made. For the benefit of those who have yet to prepare an investigation report, the following form may be of assistance:

From: (Investigating Officer or Senior Member of Board of Investigation-by name)

which adds nothing but an increase in the clerical and administrative workload.

b. Designation of any persons named as parties prior to, or at any time during the course of the investigation, furnishing details concerning each person so designated as to the according or waiving of his individual rights as a party.

c. Explanation of any difficulties encountered in the investigation, providing an explanation of any circumstance occasioning undue delay in the preparation and submission of the investigative report. d. Clarification of any discrepancy in evidence as to the leave, liberty or duty status of an individual on the date of injury or death. e. Explanation of limited participation in the investigation by any member or party.

f. Explanation of any apparent shortcoming in obtaining evidence, including reasons for failure to interview any living person whose line of duty status is being investigated or any witnesses whose testimony might have been material.

g. Comment and reply to any protests or complaints made by the parties in their statements relative to the conduct of the investigation.

h. Comments of the investigating officer or members of the board relative to the credibility of statements of various witnesses, especially in the event of conflicting testimony. In short, the preliminary statement should include any matter that will provide the appointing and reviewing authorities with a better understanding of the facts found, the method of obtaining evidence, and difficulties involved in obtaining the evidence.

2. Findings of fact.

8.

b.

C.

Such findings should consist of a coherent, chronological recital of the facts and events which surrounded and comprised the incident in question, as established by the evidence of record and the investigative body's evaluation of this evidence. These findings should include specific, definite and accurate information as to times, places, persons (both civilians and members of the naval establishment), and events in sequence. Moreover, each and every finding should be supported by the recorded testimony of a witness or by some other item of evidence (documents, reports, logs, etc.) which is appended to the report as an enclosure. In some cases it may appear that a more effective presentation will be achieved by grouping several facts together in a narrative form or to employ the narrative form exclusively in lieu of a detailed findings of fact. In keeping with the spirit of flexability which is the essence of an informal investigation, the method of presentation of the findings is left to the discretion of the member or board. Of course the findings, whatever their form, must be supported by the evidence in the record and should be written in a manner which would most effectively inform the Convening authority of the case. 3. Opinions.

b.

C.

When the appointing order desires recommendations, the investigative body shall make such recommendations as are directed and any others which, in its opinion, are appropriate and advisable in view of the nature of the facts found. These include recommendations for disciplinary action, for changes in materiel or procedures, for the prosecution of claims on the part of the Government, and any other recommendations suggested by the particular nature of the findings.

(Signatures) (Continued on page 22)

A

S WITH MOST bodies of law, military law is constantly evolving-or shifting emphasis to meet the changing needs of the times. It is this quality of change which breathes justice into the written word. Yet with movements or shifts, the law becomes a hard task master. It demands a continued attention of those who would understand and work with it-an attention which many find difficult by reason of other commitments to the Navy. To complicate the matter there has been a rapid growth in the military law jurisprudence brought about by a new "code" and change in court personnel which has affected the attitude of the Court of Military Appeals. All of this means that those who have immediate responsibilities in military law have been hard pressed to keep alert to its trends and developments.

One of the main objectives of the JAG JOURNAL has been to help the Navy keep itself abreast of military law matters. The Annotations to the MCM, 1951, appearing in past issues of the JOURNAL, is one example of this effort. Other articles in the JOURNAL and its State of the Law feature have discussed particular segments of the military criminal law. It is not the purpose of this article to substitute for these excellent materials. Rather, it is its purpose to take a broader sweep of the subject to collect in one place the significant COMA decisions handed down since 1951 which have a general application to trial by courts-martial.1 For convenience and symmetry the article has been divided into the following areas:

1. Jurisdiction

2. Evidence

3. Self-incrimination

4. Command Influence

5. Trial Counsel

6. Defense Counsel

7. The Law Officer (or President SPCM)

8. Review

JURISDICTION

JURISDICTION IS THE authority conferred upon a

court to act upon a given set of facts referred to it for decision and to pass upon those facts in accordance *Zeigel W. Neff has been a civilian member of Navy Board of Review Number One in the Office of the Judge Advocate General since 1957. He received his B.A. in 1939 from Southwest Missouri State; his LLB in 1948 from the University of Missouri; and his LLM in 1958 from the Georgetown University. He is a member of the Bar of the State of Missouri and the U.S. Court of Military Appeals. He is presently a Commander in the U.S. Naval Ready Reserves having served on active duty for many years in the U.S. Navy. During World War II, as a designated naval aviator, he was attached to various carrier based fighter squadrons and flew many combat missions. He later served as a Law Specialist during the

with the applicable law; it is the inherent capacity to take cognizance of a case, try it, and pass upon it pursuant to the law and the facts. In the area of military jurisdiction it is well to remember that, generally speaking, it is the status of the accused and not the location of the offense which gives a court-martial jurisdiction over an accused. These are the general principles of Jurisdiction to them the Court of Military Appeals has sketched in some details of the picture. When does military jurisdiction first attach? When does it terminate? What is the effect of an involuntary extension of an enlistment? A review of selected cases in this area should be sufficient to supply the answers to these and other related issues of Jurisdiction.

It was the Ornelas, 2USCMA 96, 6CMR 96, case which posed the question of when jurisdiction first attached. In that case the accused was convicted of desertion. He had gone to an induction center, had submitted to a physical examination, but had never taken an oath. On these facts the accused argued that he had never been lawfully inducted. The Court of Military Appeals held that the oath-taking ceremony was in fact the crucial point in the induction process which altered the status of a civilian to that of a soldier; therefore, it was held that the court-martial lacked jurisdiction over the accused.

When does jurisdiction terminate? That was the problem in another case. Before expiration of a twoyear enlistment, a Sergeant was given an honorable discharge for the convenience of the government in order to immediately re-enlist. He re-enlisted the day following his discharge. It was then discovered that during his original enlistment, he had committed certain offenses. Tried and convicted for these offenses, he claimed that the honorable discharge prevented trial by court-martial for the offenses committed during his prior enlistment. The Court of Military Appeals did not sustain this argument. It found that there had been no hiatus in status, for at all times the accused had been subject to military law and control; that the discharge was solely for the purpose of re-enlistment and that the accused had never actually intended to return to a civilian status. The Court reasoned that since the dis

Korean hostilities. Among his many combat awards he has received the Navy Cross. In addition to his many judicial responsibilities which result from his being a member of a Board of Review, Commander Neff is Commanding Officer of Naval Reserve Law Company 5-11, Washington, D.C.

1. The January issue of the Military Law Review, a publication compiled at the Judge Advocate General's School, Charlottesville, Virginia, contained a survey of military law as reflected in Court of Military Appeals decisions up to June 1958. It was felt that a like up to date survey written for the naval officers in the fleet would be a proper subject for the JAG JOURNAL.

JANUARY 1960