The JAG Journal is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG Journal is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field.

The JAG Journal publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other agency or department of Government.

Invitations to submit articles are extended to all persons, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed. No compensation can be paid for articles accepted and published.

Use of funds for printing this publication has been approved by the Director of the Bureau of the Budget, 10 September 1957.

REAR ADMIRAL CHESTER WARD, USN Judge Advocate General of the Navy

CAPTAIN WILLIAM C. MOTt, USN Deputy and Assistant

Judge Advocate General of the Navy

LIEUTENANT COMMANDER ANDREW J. VALENTINE, USN Editor

For sale by the Superintendent of Documents U.S. Government Printing Office, Washington 25, D.C. (Monthly). Price 15 cents (single copy). Subscription price $1.25 per year; 50 cents additional for foreign mailing.

STREAMLINING MINOR ACCIDENT REPORTS Personnel engaged in investigating work can save the Navy much expense, and their own time and effort by utilizing a shortened form of investigative report for minor accidents ($100 or less damage to private person's property). The regulations describing the shortened form are contained in the 1955 Naval Supplement to the Manual for Courts-Martial, Appendix I, Section 38 (b). Use of this form eliminates the need for an investigating officer's report letter, witnesses' statements, photographs, citation of pertinent local law, etc., with a concomitant speeding of the settlement of minor accident cases. Of course, if there is a possibility that a claim for personal injuries may be submitted, the formal investigative report is the one to use.

SUIT FOR AUTOMOBILE INJURIES

Plaintiff, a Marine Master Sergeant, suffered a broken leg when as the driver of a pickup truck owned by him he collided with a Government vehicle aboard the Marine Corps Base, Camp Pendleton, California. The accident occurred at 0102 hours when plaintiff was en route to his home from the Staff NCO Club. He was assigned to duty as manager of this Club and had just closed it for the night. Suit was brought by him against the United States for personal injury and property damage and by his wife for loss of consortium.

On motion by the Government for summary judgment, the case was dismissed. The court found that plaintiff was on active duty at the time of the accident and was engaged in the performance of his military duties. He was therefore not entitled to recover for his personal injuries or property damage "which arose out of, or in the course of, activity incident to his military service". The count for loss of consortium was dismissed as not

recognized by the laws of California.

This ruling follows the holding in Feres v. United States, 340 U.S. 135 (1950), that injuries received incident to the military service of the plaintiff are not compensible under the Federal Tort Claims Act. See also Zoula v. United States, 217 Fed. 2d 81 (5 CCA 1954), which holds that property damage is similarly treated. (U.S. District Court for the Southern District of California, Civil No. 2137-SD-W, March 17, 1959.)

MILITARY PERSONNEL DIVISION

The following is a list of change of duty or station orders issued to all officers transferred to or from the Office of the Judge Advocate General and to all Navy law specialists regardless of assignment. The list includes orders issued before 15 February 1959.

LTJG Richard W. Canady, USNR, from SNJ (under inst.) to JAGO.

LT Bruce A. Harlow, USNR, from COMNAVPHIL to NAVSTA, Seattle.

LTJG Gerald G. Stamper, USNR, from SNJ (under inst.) to CNABATRA, Pensacola.

LTJG Earl H. Munson, Jr., USNR, from SNJ (under inst.) to COMTWELVE.

LTJG Paul G. Sterling, USNR, from SNJ (under inst.) to COMTHIRTEEN.

CDR William J. McAvoy, USNR, from COMSTS WESTPAC to COMNAVFORJAP.

LTJG Roderick L. Eisele, USNR, from SNJ (under inst.) to COMNINE.

LTJG Alvern D. Christian, USNR, from SNJ (under inst.) to COMNAVBASE, Norfolk.

LTJG Donald H. Canning, USNR, from SNJ (under inst.) to COMDESLANT.

LTJG Thomas E. Byrd, USNR, from SNJ (under inst.) to COMNAVPHIL.

(Continued on page 6)

T

HE STATE OF law relating to rules surrounding exclusion and admission of hearsay evidence in military trials has not undergone any substantial changes since the enactment of the Uniform Code of Military Justice in 1951. Many of the decisions of the United States Court of Military Appeals discussing hearsay have dealt with the effect its improper introduction into the record may have on the ultimate outcome. These will be discussed later. As to the rule itself, however, the court subscribes to the same common law principles as are applied in most civil jurisdictions in the United States. Unlike other areas of evidence (as for example the law of search and seizure) the rules on hearsay have been long established in Anglo-American jurisprudence. Relative stability over a long period of time, however, has not made the hearsay rule any less of a major problem. There continues to exist a confusion as to just what hearsay is and on what basis hearsay evidence may be admitted or must be excluded during trial.

The purpose of this article is to set forth a single working definition of hearsay, as generally applied in the military; to explain why the hearsay rule exists; to list briefly the exceptions to the rule; and, to discuss why such exceptions are necessary. The common error which often occurs, and brings a pained expression to the face of one who is familiar with the hearsay rule is exemplified by the courtroom situation where a witness is sitting in the box testifying and says: "X told me that ***" Before he can get these words out of his mouth, counsel for the other side is on his feet with "objection-hearsay”, and a long, often unnecessary and pointless argument immediately ensues. What the witness was about to testify may not have been hearsay at all or if it was it might have been so clearly within one of the

*LT Henry Walter Croskey, USNR, is presently assigned to the Staff, Commandant Eleventh Naval District, as a member of the District Legal Office. LT Croskey received his BS and his LLB from the University of Southern California in 1955 and 1958. He is a member of the California Bar.

recognized exceptions that objection to it would be a waste of the court's time.

COUNSEL, BY A thorough preparation of his case, can usually predict what his opponent's testimony will consist of and by intelligently applying the rules of evidence he can determine in advance if an objection is (1) legally proper, and (2) justified from a trial tactics point of view.

What is "Hearsay"? Hearsay is generally defined as an—

(1) extra judicial (i.e., not in the court where
the trial is being held in which the evi-
dence is sought to be introduced),
(2) assertion (may be an oral or written
statement or non-verbal conduct which
has a communicative effect),

(3) offered in evidence to prove the truth of the matter contained therein. All three of these factors must be present in order for evidence to be termed "hearsay". Therefore, in order to reach such a conclusion it is necessary to answer at least two questions (assuming there is no dispute that an "out of court" assertion is involved).

FIRST, what is the issue in the case? The same piece of evidence can be hearsay in one case and not hearsay in another depending on the ultimate issue involved. This, of course, raises the second question which is integrally related with it.

SECOND, for what purpose is this testimony being offered? As it was stated in the general definition above, if it is offered to prove the truth of the matter contained therein, then it is objectionable as hearsay.

Some of the following illustrations will point up the distinctions. For simplicity let us label the parties as follows: Witness will be the person testifying in court; Declarant will be the author of the assertion which Witness is relating from the stand and the accused is the person on trial.

First, suppose Witness testifies that Declarant told him he (i.e., Declarant) saw the accused

commit the assault for which he is now on trial. The issue in the trial is whether or not the accused in fact committed an assault and the statement of Declarant is offered through the mouth of Witness to prove the truth of the matter contained therein; that is, that the accused did do it. It can clearly be seen that this fits the definition and would be excluded. But suppose the facts are changed slightly and this same statement is offered for a different purpose, for example: To show that Declarant can speak English; that he knows Witness; or that he is not a truthful witness (as in the case where Declarant appeared in this trial on behalf of the accused and told a different story). All of these are legitimate and proper uses of Declarant's statement which although made out of court have nothing whatever to do with the hearsay rule for the reason that they would be admitted for a purpose which has no concern with the truth of the matter contained in the statement. See U.S. v. Jewson, 1 USCMA 652, 5 CMR 60. In other words, when it is material to the case to show only that a statement was in fact made and this statement is offered in evidence only for that purpose we have no problem of hearsay!

Second, in a similar vein, suppose Witness testifies in the trial of an accused for the murder of X (where the state of mind of the accused is in issue) that Declarant had told him and the accused that X had threatened to kill the accused on sight. If this testimony was offered to prove the truth of the matter-i.e., that X did in fact make this statement and was the aggressorthe evidence offered would clearly be hearsay. To prove the utterance, Declarant would have to be the witness. BUT if the testimony of Witness was offered to show the state of mind of the accused (i.e., that regardless of whether X said these words, that the accused had heard that X had said these words and as a result was afraid of X) the hearsay rule is not involved. The utterance of X-not being offered for the truth of the utterance or fact-is not hearsay.

In

Third, suppose Witness has testified to a particular fact and to bolster his story a previous statement made by Witness consistent with his present testimony is offered in evidence. this case Witness is also Declarant. But is his statement admissible? Again it must be ascertained for what purpose the statement is being offered. If offered to prove the truth of its content it is hearsay and is inadmissible. But if the adversary had attacked Witness' credibility on the grounds of recent fabrication, prior inconsistent statements, bias, prejudice or a

motive to falsify arising after the prior statement, then Witness' previous uttering is not hearsay at all. Why? Because it comes in for the purpose of refuting his impeachment and not to prove the truth of its content. See U.S. v. Kellum, 1 USCMA 482, 4 CMR 74.

Fourth, nor is the concept of hearsay limited to the written or spoken utterance, but is broad enough to include an act which is not an integral part of any of the issues in the case but has a communicative effect. Thus, if conduct is introduced which is the equivalent of a direct and positive statement, it would offend the hearsay rule. Accordingly, when conduct is tendered in evidence to show the actor's belief and hence the truth of the belief, it is hearsay and inadmissible. For example, if Declarant by his conduct had treated the accused as sane, Witness' testimony as to Declarant's conduct would be excluded as hearsay.

Another example is found in the situation where Witness testifies that Declarant while viewing and trying to identify some suspects in the holdup of Declarant, she suddenly jumped to her feet and fainted as the accused was brought forward. Witness could no more testify on this than he could state that Declarant had said of the accused: "That's the man." In either case if offered to show guilt of the accused, it is hearsay.

NUMEROUS OTHER EXAMPLES of what is hearsay and what is not can be thought of by merely keeping in mind and applying the definition. When you are presented with testimony either oral or written which is not the testimony of the witness or document presented but that of another and it is offered to prove the truth of its content then and only then will you have a hearsay question. When one considers the reason for the Hearsay Rule and why the AngloAmerican system of jurisprudence bars the admission of evidence falling within its confines, the "Rule" becomes easier to apply. The purpose of a trial whether it be civil or criminal or civilian or military is the discovery of truth and the determination of the existence or nonexistence of a fact or series of facts. To do this, evidence is presented. The greatest part of such evidence usually consists of the testimony of witnesses. However, before a witness may be heard he must satisfy certain qualifications. He must speak:

(1) under oath or under an equivalent sanction, liable to a penalty for perjury,

(2) before the trier of fact at a public hearing, (3) where he will be subject to the cross-examination

and confrontation by the opposing party and his counsel.

If any witness refuses to comply with these rules he will not be heard. What then is the situation when Witness is on the stand telling of the experience of Declarant? When Witness tells the court that Declarant told him that event X occurred, is not Declarant really the witness? If Declarant were in court and refused to qualify himself as set out above then he would not be heard, so how then can he be permitted to testify through the lips of Witness? The answer is that he cannot! To hold otherwise would render meaningless all the exacting rules that have been developed for the presentation of "testimonial" evidence.

IT HAS BEEN long established in American law that an accused has the right to be confronted by the witnesses against him and to cross-examine them on all relevant points of their testimony. The theory is that it is only in this way that the truth will be discovered. To permit Declarant to testify against an accused through the conduit of Witness, effectively destroys this valuable right. It also deprives the trier of fact the opportunity of observing the witness' appearance, manner, and demeanor all of which have a significant bearing on his veracity. Further, the matter also involves a problem of the competency of the witness. A witness, before his testimony will be accepted by the court must establish both his general and special competency to testify. To be generally competent he must meet the statutory qualifications of a witness (e.g., age, sanity, lack of mental infirmity etc.). He is specifically competent only if it is clear that he was present when event X took place, that he had the physical and mental ability to observe it, that he did in fact observe it, that he now remembers it and can communicate such information to the court. Declarant can hardly meet any of these tests when he is not present in court to establish them. Certainly Witness is seldom in any position to establish Declarants general or specific competency from his own personal knowledge.

These are the general rules concerning hearsay evidence and why it is objectionable to our system of justice. However, the emphasis that is placed on the exclusionary nature of the rule should not close the reader's eyes to the fact that the rule is far better known by its exceptions. Certainly a thorough understanding of the "rule" is incomplete unless accompanied by a working knowledge of the exceptions to it. Basically exceptions to the hearsay rule have

been developed by the English and American courts for two reasons:

1. Necessity, the evidence is needed by the court in order to decide a material issue of fact and can be reasonably obtained from no other source.

2. Circumstantial Probability of Trustworthiness, under the circumstances there is great reason to believe that although the evidence is hearsay it is nonetheless sufficiently reliable so as to overcome the traditional objections and should be admitted.

However, the purpose here was to emphasize an understanding of the concept of the hearsay rule itself so as to promote its intelligent application. Certainly a prolonged discussion about an exception is of little interest if the evidence doesn't come with the meaning of "hearsay" in the first place. It is beyond the scope of this article to go into a technical discussion of all of the ramifications of the various exceptions to the rule. However, a good discussion of the most commonly applied ones can be found in the applicable provisions of the Manual for Courts-Martial and Board of Review and Court of Military Appeals decisions. They are:

1. Dying Declarations, see paragraph 142a Manual for Courts-Martial, U.S. v. DeCarlo, 1 USCMA 91, 1 CMR 90; U.S. v. Smith, 5 USCMA 314, 17 CMR 314. 2. Spontaneous Exclamations, see paragraph 142b Manual for Courts-Martial, U.S. v. Mounts, 1 USCMA 114, 2 CMR 20; U.S. v. Nastro, 7 USCMA 373, 22 CMR 163.

3. Statements of Motive, Intent, and State of Mind or Body, see paragraph 142d Manual for CourtsMartial, ACM 8278, Boynton 15 CMR 851, CGCM 9835 Peters 19 CMR 600.

4. Official Records, see paragraph 144b Manual for Courts-Martial, U.S. v. Parlier, 1 USCMA 433, 4 CMR 25; U.S. v. White, 3 USCMA 666, 14 CMR 84; U.S. v. Tahafuji, 8 USCMA, 25 CMR 127.

5. Business Entries, see paragraph 144c Manual for Courts-Martial, ACM 5561 Roberson 12 CMR 768; U.S. v. Villasenor, 6 USCMA 3, 19 CMR 129.

6. Prior Recorded Testimony (former testimony), see paragraph 145b Manual for Courts-Martial, U.S. v. Niolo, 4 USCMA 18, 15 CMR 18.

7. Past Memory Recorded, see paragraph 146a Manual for Courts-Martial, US v. Day, 2 USCMA 416; U.S. v. Bergen, 6 USCMA 601, 20 CMR 317.

8. Acts and Statements of Conspirators and Accomplices, see paragraph 140b Manual for CourtsMartial, U.S. v. April, 7 USCMA 594, 23 CMR 58.

9. Confessions and Admissions, see paragraph 140a Courts-Martial; although these are technically hearsay under the strict definition applied in military law, they present a more formidable legal problem in the area of voluntariness and compliance with Uniform Code of Military Justice, Article 31b.