TH

HE NAVAL OFFICER can usually depend on being assigned the collateral duty of Trial Counsel, Special Court-Martial early in his career. Generally this responsibility is shouldered during the first tour at sea-a time of many new experiences when time itself is at a premium. Of course, there is no better teacher than experience, still the manner in which the inexperienced prepares himself for trial will in the main determine the professional competence of his performance of this important duty assignment. There is no substitute for adequate preparation in the successful trial of a case by courts-martial and the wise trial counsel will find those extra hours he will need. This preparation, of course, includes the diligent study of the provisions of the Uniform Code of Military Justice and the Manual for Courts-Martial, 1951, where the technical and procedural aspects of the duties of trial counsel are clearly set forth. This article will not substitute for the provisions of the Manual. It will simply address itself to the more practical aspects of properly preparing and presenting the government's case. Since larceny is one of the more prevalent charges tried by special courts-martial, this offense will be used for illustration.1

Let us assume that you are assigned to prosecute an enlisted man before a special courtmartial and that he is charged with a violation of Article 121, Uniform Code of Military Justice, as follows:

"In that John W. Doe, Seaman, U.S. Navy, U.S. Naval Air Station, Norfolk, Virginia, did, at the U.S. Naval Air Station, Norfolk, Virginia, on or about 12 January 1960, steal United States Currency, of a value of about twenty-five dollars ($25.00), the property of Richard A. Roe, Airman Apprentice, U.S. Navy." The initial step is to study the allegations contained in the specification; these are the facts

*Lieutenant Commander John S. Lane, USNR, presently attached to the Litigation Division, Office of the Judge Advocate General, is a certified Trial and Defense Counsel and a qualified Law Officer. Prior to his present assignment, he was attached to the U.S. Naval Air Station, Pensacola, Florida, as the Legal Officer. Lieutenant Commander Lane received his B.A. from the Emory University in 1947 and his LL. B. from the Washington and Lee University in 1950. He is a member of the Georgia Bar and the American Bar Association.

1. JAG Journal, August 1954, "Trial Counsel's Preparation and Tactics" by Maj. James A. Turley, USMCR.

that must be proved beyond a reasonable doubt. These factual allegations must also be related to the basic elements of proof required of the offense charged (here larceny). In this case the elements are found in paragraph 200, MCM, 1951. The trial counsel in this case would have to prove the following facts:

(1) That on or about 12 January 1960, at the U.S. Naval Air Station, Norfolk, Virginia, the accused wrongfully took $25.00 of U.S. currency from the possession of Richard A. Roe who had greater right to the possession of the currency than the accused; (2) That Richard A. Roe was the owner of the currency in the sense that he had title to it, or that he had possession of it, or the right to such possession; (3) That the currency was of the value of $25.00, or of some lesser value; and,

(4) That the taking by the accused was with intent permanently to deprive Richard A. Roe of the use and benefit of the currency.

As is indicated in Appendix XII of the Manual, the offense of wrongful appropriation is a lesser included offense of larceny. The elements of this lesser included offense, as set forth in paragraph 200b, MCM, 1951, are the same as those set forth above for the major offense, with the exception that the fourth element of proof for lawful appropriation would be that the taking by the accused was with intent temporarily to deprive Richard A. Roe of the use and benefit of the currency.

WITH THE FACTUAL allegations and elements of proof firmly in mind, the trial counsel may begin his preparation for trial. To do this effectively, he should proceed in a business-like manner and methodically. This can be accomplished best by employing the use of a "check list" such as the following: 2

SECTION A-DUTIES PRIOR TO TRIAL

1. Check the charges and allied papers when they are received to assure that the file is complete.

2. Ascertain from the indorsement on the charge sheet and the order appointing the court whether the charges are in the hands of the trial counsel of the proper court.

3. Examine the charges and allied papers to determine whether

2. Military Justice Handbook, The Trial Counsel and The Defense Counsel, Departments of the Army and the Air Force, October 1954, No. 27-10, AFP 111-1-1.

any member of the prosecution is disqualified because of prior participation in the same case (MCM, 6, 44b). If so, the disqualified member may not act in the case, and the matter will be reported immediatly to the convening authority.

4. Note any discrepancies in the report of investigation (MCM, 44f). 5. a. Make certain that the data on the charge sheet is free from errors of substance or form (MCM, 44f).

b. Compare the name and description of the accused in each specification with the corresponding data on page one of the charge sheet.

c. Compare the charges and specifications in the charge sheet with the pertinent forms set forth in appendix 6c of the Manual to determine if they are in proper form.

6. a. Note any discrepancies in the orders appointing the court. b. Examine the orders appointing all courts to which the case has been referred, the charge sheet, and the accompanying papers to determine whether counsel for the prosecution and the defense have the necessary legal qualifications and whether any facts appear which would disqualify any of the counsel from acting in the case (MCM, 4e, 6).

c. If, with respect to the qualifications of counsel, the court is not legally constituted, notify the convening authority.

7. If errors of a substantial nature are found in the charge sheet, in the orders appointing the court, or in the report of investigation, refer such matters to the convening authority (MCM, 44f).

8. Examine the record of previous convictions for completeness, admissibility, and freedom from errors of form or substance. 9. a. Serve a copy of the charge sheet on the accused.

b. Complete and sign the certificate of service (bottom of page three of charge sheet (DD Form 458)).

c. Ask accused, at the time of service of charges, if the data as to his service and restraint shown on page one of the charge sheet are correct. If the accused points out any errors in the data shown, verify and accomplish appropriate corrections.

10. a. Notify the defense counsel without delay that charges have been served.

b. Deliver copies of the papers that accompanied the charge sheet to the defense counsel (except as otherwise directed by the convening authority) (MCM, 44h).

11. Determine whether the accused desires to be represented by individual counsel, civilian or military. If so, initiate necessary action (38e; MCM, 46d, 48a).

12. a. If the accused is an enlisted person, ascertain whether he desires enlisted members on the court. If so, obtain a signed request therefor and advice the convening authority.

b. If the accused requests enlisted members, make certain that none of the enlisted persons who will sit as members of the court are members of the same unit as the accused or are junior in grade to the accused; insure that one-third the membership who will sit on the court will be enlisted persons (Art. 25c; MCM, 4a, 6). 13. Determine how accused intends to plead. If the accused offers to plead guilty under a pretrial agreement, notify the convening authority.

14. Ascertain from the defense counsel what witnesses he will need and the earliest date he will be ready for trial.

15. Prepare any necessary depositions in conjunction with the defense counsel.

16. Study the elements of proof of each offense charged.

17. Study the law relating to each offense charged (MCM, ch. XXVIII).

18. Interview prosecution witnesses and take notes.

19. Interview defense witnesses and take notes.

20. Examine any documentary evidence pertaining to the case for completeness, admissibility, and form (MCM, 143–146). 21. Prepare proof analysis sheet.

22. Arrange to have any real evidence, such as knives, guns, money, clothing, etc., available for the trial.

23. If, during the preparation of the case, new information is discovered that affects the feasibility of proceeding with the trial, advise the convening authority (MCM, 44f (5)).

24. If a question arises as to the sanity of the accused, refer the matter to the convening authority (MCM, 121).

25. Plan the order in which the evidence will be placed before the court at the trial.

26. Obtain and study legal authorities concerning any possible questions of law likely to arise at the trial, particularly in connection with proposed additional instructions.

27. Note any lesser offenses included in each specification and carefully analyze the expected evidence to determine which lesser offenses might be in issue.

28. Prepare proposed instructions as to the elements of each principal offense charged, each lesser included offense, affirmative defenses that may be in issue, and definitions of words of special legal connotation.

29. Prepare an outline of any opening statement or final argument to be made at the trial.

30. Examine the order appointing the court, the charge sheet, and the accompanying papers for possible grounds for challenge (MCM, 62f).

31. Consider whether the defense may make any motions or objections and, if so, make the necessary preparation to oppose them (MCM, ch. XII).

32. Have necessary photographs, maps, charts, etc., prepared. 33. Obtain official copies of price lists, regulations, orders, etc., of which the court will be requested to take judicial notice (MCM, 147a).

34. Determine the strong points in the probable defense case and prepare to counteract them if possible.

35. Outline the expected testimony of each prosecution witness and the expected cross-examination of each defense witness.

36. Prepare an outline for the cross-examination of the accused in the event he elects to take the stand to testify.

37. Prepare trial notes.

38. If possible, stipulate with the defense counsel and the accused as to unimportant or uncontested matters.

39. a. If a court reporter is to be used, ascertain the dates that he will be available.

b. Confer with the president of the court as to the date and time of trial and the uniform to be worn.

40. Notify all persons concerned of the meeting of the court and the uniform to be worn, i.e., personnel of the court, counsel, reporter, interpreter, orderlies.

41. Arrange for the presence of civilian witnesses, if necessary, subpoena witnesses for the prosecution and witnesses requested by the defense (MCM, 115a). Arrange for the presence of military witnesses (MCM, 115b).

42. Arrange for the presence of the accused at the trial (MCM, 60). 43. Arrange for a courtroom and see that proper furniture is provided and is properly arranged.

44. Secure necessary stationery items, findings and sentence work sheets, etc., for the use at the trial of members of the court-martial. 45. Have typewritten copies of the charges and specifications prepared for counsel, each member of the court, and the accused. 46. Go to the courtroom early and make final arrangements.

SECTION B-DUTIES DURING TRIAL

47. At all times during the trial, utilize your trial notes and the procedural guide for trials before general and special courts-martial (MCM, app. 8).

48. Check with the reporter as to the time of each convening or opening, and recess, adjournment, or closing.

49. Account for the "parties to the trial" when the court opens after closing, adjourning, or recessing.

SECTION C-DUTIES AFTER TRIAL

50. Arrange for proper disposition of accused (MCM, 21d, 44e). 51. Notify, in writing, the accused's commanding officer, the commanding officer of the confinement facility in which the accused is confined, and the convening authority of the outcome of the trial. 52. Complete witness vouchers and assist witnesses in securing payment as prescribed by departmental regulations.

53. If original documents are to be returned, see that certified true copies or other authorized reproductions of such documents are prepared for substitution in the record of trial (MCM, app. 8a (p. 513)). 54. Prepare proper descriptions or photographs of items of real evidence for inclusion in the record (MCM, 138c).

55. Determine the number of copies of the record of trial to be prepared.

56. Turn over to the reporter, if one was present, exhibits and allied papers in the case to be attached to the record of trial.

57. If a reporter was not present, prepare the record of trial.

58. a. Check the record of trial as it is being transcribed, and, when the record has been completed, carefully review it and see that all papers are arranged and bound in the manner prescribed by appendix 9e or 106, whichever is appropriate, of the Manual for CourtsMartial.

b. Note, correct, and initial errors in the record of trial.

c. Submit the record of trial to the defense counsel for his examination and signature prior to authentication.

d. Submit the record of trial of a special court-martial to the president of the court and the trial counsel for authentication (35f; MCM, 83c and app. 96(2)).

e. If a civilian reporter was employed, check the reporter's voucher and sign it if it is correct.

f. Supply each accused with a copy of the record of trial from which any classified material has been deleted; obtain a receipt for each copy so provided and attach it to the record of trial (MCM, 82g). g. Complete the Court-Martial Data Sheet (DD Form 494).

h. Include in the record a signed letter containing reasons why declassification of classified matter in the allied papers was not accomplished prior to the dispatch of the record.

i. Include immediately following the chronology sheet in all records of trial by general courts-martial in which a sentence has been adjudged and in those records of trial by special courts-martial in which a bad conduct discharge has been adjudged a statement of the accused that he does or does not desire appellate defense counsel or, in lieu thereof, a certificate of the defense counsel that he advised the accused of his appellate rights.

j. Forward the record of trial to the convening authority. 59. Retain all reporter's notes and other records from which the record of trial was prepared for 30 days after delivery of a copy of the record to the accused or 60 days after the record is forwarded to the convening authority, whichever period expires first (MCM, 82a).

USUALLY THE FIRST introduction to the available proof will be by way of examining the file in the case which is delivered to the trial counsel along with the charges and specifications. Let us assume that the file in the case under consideration here contains the following:

(1) A statement made by the accused to the station investigator, witnessed by two individuals, wherein the accused made certain admissions concerning the offense charged. Specifically, that he was quartered in the same barracks as the victim; and, that on the night in question he was in the vicinity of the victim's locker from which the money was taken.

(2) A statement of the victim, Richard A. Roe, to the effect that he placed the $25.00 in his locker on the evening of the alleged date and found such money missing the next day; that he made a report of this loss to the master at arms; and, that he had given no one permission to take the money.

(3) A statement of one Samuel P. Smith, Airman, U.S. Navy, to the effect that he was a friend of the accused; that he had been on liberty with Doe on the night in question and, prior to their returning to the barracks, that the accused had made the statement to him that he had no money; that he was again in the company of the accused the following morning at which time the accused exhibited to him $25.00 which he had in his possession; and, that the accused merely laughed when questioned as to how he acquired the money.

(4) A report by an agent of the Office of Naval Intelligence to the effect that he examined the locker from which the $25.00 was taken and found several

fingerprints which, in his opinion, were those of the accused, John W. Doe.

(5) A narrative summary of the case prepared by the station investigator.

(6) A case data sheet, prepared by the disciplinary officer.

The trial counsel should thoroughly examine the contents of the file and, after having become thoroughly familiar with its contents, should then begin preparation of a "Proof Analysis Sheet." This sheet informally summarizes the elements of the offense. Opposite each element is listed the evidence which will be used to prove the element so listed. Any arrangement is, of course, satisfactory. The "proof analysis sheet" recommended by the Military Justice Handbook (Trial Counsel and Defense Counsel) lists the elements on the left and the evidence to prove these elements on the right.

Since the great majority of criminal cases are won or lost on the factual questions presented, the trial counsel now comes to what is generally considered the all-important step in the preparation of his case and that is the collection of the available evidence. He must collect and examine all material and relevant evidence in connection with his case under consideration. It is almost impossible to do intelligent legal research of the authorities concerning the law of the case until the facts are firmly established in mind. It has been stated that the proper preparation of the facts includes:

a. Acquisition of general, special, and scientific knowledge;

b. Collection of the facts through interviewing witnesses, and investigating their stories;

c. Anticipating and preparing the opponent's proof; and,

d. Outlining the elements to be proved.3

The trial counsel should next make a visit and view the place the larceny was alleged to have occurred, and there prepare, or have prepared at his direction, diagrams and sketches of the scene of the crime showing the relative position of the objects in the barracks, the location and the general appearance of the locker from which the money was taken, and so on. These diagrams and sketches can later be utilized during the pretrial interviews with the various witnesses involved and can also be used as demonstrative evidence at the actual trial.

NEXT THE TRIAL counsel should interview all of the witnesses who are named on the charge sheet, those whose statements appear in the file (Continued on page 16)

3. Goldstein, Trial Technique (1935), § 4.