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, 441).

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.

1. 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.❜

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.

A Message From

THE JUDGE ADVOCATE GENERAL

(Continued from page 2)

DETERRENCE BY NAVAL POWER

DETERRENCE IS THE ANSWER: and advanced seapower is the answer to deterrence. Can you explain this to civilians? To your own family? Do you? Can you make them understand that the reason the Navy builds carrier aircraft and Polaris missiles to carry multimegaton warheads is not to kill millions of Communists-but to save the lives of millions of Americans? If we keep our country sufficiently strong we need suffer neither war nor surrender.

There is no defense against intercontinental ballistic missiles-once the blast-off button is pushed. Because no defense is possible, we have to shift to a new concept. The problem, if we want to save our people, our cities and our industries from devastation, is to deter them from pushing that button. The only thing that will deter them-Communists being what they are is their belief that our retaliatory strikes would destroy their system. Their people they consider expendable-even by the millions; but they regard their Communist system as sacred and will not expose it to fatal damage.

Warheads and delivery vehicles we may have in quantities sufficient to destroy all of Russia ten times over. Will that deter a Communist strike against our country? Up until now, it has. SAC has been a powerful deterrent; and it still is right now; but will it continue to be sufficient-in even the near future?

Absolutely not. If our power to strike back depends upon weapons systems which are vulnerable to intercontinental ballistic missiles, we will lose our deterrent as Communist missile power increases. What we have before a Communist ICBM strike will be completely irrelevant. It's only what we will have left surviving, to strike back with, that counts toward deterrence. Bombers dependent upon fixed, soft bases are increasingly vulnerable to ICBM's; so also are our own ICBM's themselves on fixed and soft bases; even ICBM's in hardened but still fixed bases are to a lesser degree vulnerable. Our mobile, land-based ICBM missiles when we get them-will stand a much better chance of surviving; but their mobility may be seriously restricted in the post-strike

environment of a country devastated by Hrockets. What, then, can we rely on? In one word, but representing a weapons-mix as versatile as it is powerful: seapower.

UNIQUE NAVAL ASSET: INVULNERABILITY TO ICBM'S

THE INVULNERABILITY OF the instruments of seapower to destruction by ICBM's because of their unrestricted and sustained mobility, the sure survival of naval weapons to strike back; these are the capabilities which impose the tremendous new responsibilities for life or death of our country on the Navy.

It used to be, even a very few years ago, that winning the war at sea would save our country and our people from devastation. Victory at sea can now come too late to avert the new threat to scores of millions of our people and to all of our cities and industry. This dictates our sound national policy objective: peace in freedom and justice. Supporting this policy with unique power, the Navy has become a prime instrument for maintaining the peace without appeasement. And the Navy's contribution to the vital concept of deterrence is not limited to the all-out, direct attack on the United States. The flexibility and versatility of naval weapons pays off also in deterring Communist invasion of Europe and limited wars in Asia.

Rewritten by the revolution in modern weapons, therefore, the short statement of the Navy's mission may read in the future: "to deter wars if possible; to win wars if necessary".

The Navy has, in being and on delivery, weapons systems invulnerable to ICBM attack which-if procured in sufficient numbers-will be sufficient to deter any rational enemy. First, we have our great attack carriers. In addition to their essential limited war capabilities, their planes could deliver massive nuclear retaliation despite the shock of Communist strikes at our homeland. Second, and our most important asset for strategic deterrence, we have the potential of the Polaris missile-nuclear propelled submarine. July 1960 will stand out in the history of weaponry as the date which completely proved out this most advanced of all modern weapons systems by the first actual shots from GEORGE WASHINGTON. Now there can no longer be any excuse not to build these mobile, concealed and self-hardened submarine missile bases in sufficient numbers to insure the survival of the United States.

IN THIS TIME PERIOD, the Polaris submarine is the only proved-out operational weapons system which combines mobility, concealment and hardening. It is the only such system which is (1) invulnerable to ICBM attack and (2) virtually invulnerable-in sufficient numbers-to any other form of destruction by the enemy. If we build them in sufficient numbers, they will establish a reliable, credible retaliatory threat of destruction of the Communist system if they should attempt to attack the United States. Thus Polaris can be the guardian of the lives of scores of millions of Americans and the preservation of our government and free way of life. We can't afford not to buy sufficient number of Polaris.

But deterrence depends not merely upon the Communist estimate of the capabilities of our weapons systems, but even more upon the readiness of the forces which must employ the weapons of retaliation if they are to be effective. It used to be that naval forces even though not in a constant state of high readiness at the outbreak of war, would have time to develop their capabilities and readiness to the extent necessary for victory. Winning a war in the past was therefore to that extent less demanding than deterring a war in the present or the future. To deter all-out war and to preserve the United States, naval forces must now maintain a constant and obvious state of readiness. Deterrence depends upon what they think of us-as well as on what we have.

But there is another equally powerful reason for demanding the highest state of combat readiness for our fleets: deterrence alone is not enough—unless we accept the jellyfish, floating fate of a truly status quo nation. For America

and for freedom, the U.S. Navy's mission must be as a determinant as well as a deterrent. The deterrent is the essential shield; a sword also is needed. As Admiral Arleigh Burke said earlier this month:

We cannot win anything, nor achieve any goal, nor fulfill any of our responsibilities, whether they are political, economic or military, by staying on the defensive. We have got to want something, we have got to go get it, work for it, fight for it, or even negotiate for it.

The flexibility and triple capabilities of seapower make it the most effective affirmative type of military power to mold a better and more secure world-a world in which free peoples and free nations will be able to live without fear of aggression. Admiral Burke concludes, there

fore: "The United States, our Navy, must be able to respond right now."

NAVY LAWYERS SERVE THE NAVY

SO MUCH FOR the Navy's mission in insuring the survival of the United States and being a determining force in molding a better world. What is the Navy lawyer's part in the Navy's mission? As I remove, for the last time, the blue suit of the naval officer lawyer, I have to find a final answer to the question of whether law specialists have earned the right to wear that suit.

Can Navy lawyers make a substantial contribution to carrying out the Navy's now doubly vital mission? I believe that they have already done so; and that they are an essential part of the all-Navy team now and in the future. Furthermore, I believe that the accomplishments of the past four years prove that they have contributed to the effectiveness of naval personnel and to the combat readiness of naval forces.

WE SERVE COMMAND

OF COURSE, the only way Navy lawyers can contribute to the effectiveness of U.S. seapower is through the service we render to naval command. Our sole function, our only purpose, is to assist and advise command. We are greatly privileged, however, because of the importance of the areas in which we do directly serve command: discipline, justice, morale, administration, government of the Navy, international law, international relations. All of these things are absolutely essential to the combat readiness of our fighting fleets and to the esprit and effectiveness of our people who are the Navy. And, as shown above, the survival of our country depends largely on the combat readiness of our advanced seapower.

Any military organization must have an efficient system of government, and legal sanctions for commands, orders, regulations and enforcement of discipline. Prior to 1951, generation after generation of naval officers had lived, fought, and died for their country under the Articles for the Government of the Navy. The regime of AGN became part of Navy tradition.

It was a blow to naval leadership, therefore, when the Articles were repealed and replaced by the Uniform Code of Military Justice in 1951. Our senior commanders naturally resented having their extensive knowledge of and experience

(Continued on page 11)

THE MOST IMPORTANT attribute which a

counsel before a court must have is confidence in himself and in his case. Confidence can only be attained if the counsel has a thorough knowledge of the facts and a planned procedure for presenting them to the court. This Article is written to assist the trial counsel in formulating a plan for the trial of his case-a case involving an "unauthorized absence" and a "missing movement."

Let us assume that you have been appointed trial counsel in the Special Court-Martial case of Sam Jones, seaman, U.S. Navy. Jones, who had weekend liberty, failed to return to his ship by 0730, Monday morning and was not aboard when the ship sailed that morning. The ship returned on Wednesday and Jones reported on board at about 1300. Jones is charged as follows:

CHARGE I: Violation of Article 86, UCMJ. In that Sam Jones, seaman, U.S. Navy, USS Leadbottom, did, at or about 0730 hours on 4 April 1960, without proper authority, absent himself from his unit, to wit: the USS Leadbottom, located at Newport, Rhode Island, and did remain so absent until at or about 1300 hours on 6 April 1960.

CHARGE II: Violation of Article 87, UCMJ. In that Sam Jones, seaman, U.S. Navy, USS Leadbottom, did, at Newport, Rhode Island, on or about 4 April 1960, through neglect, miss the movement of the USS Leadbottom, with which he was required in the course of duty to move.

PROOF REQUIRED BEARING IN MIND that you must prove each fact which is alleged in the specifications, it is best to begin your preparation with a careful analysis of the specifications. Such an analysis would reveal that you must prove the following facts:

Charge 1:

1. That the accused is Sam Jones.

*Lieutenant Robert C. Watson, USNR, is presently assigned to the Legal Office, Naval Station, Newport. He received his BS degree in 1956 and his LLB in 1958 from the Marquette University. He is a member of the Wiscon bar and of the Court of Military Appeals and is a certified trial and defense counsel.

2. That the accused is presently attached to the USS Leadbottom.

3. That the accused was attached to the USS Leadbottom on 4 April 1960.

4. That at or about 0730 hours on 4 April the accused absented himself from the USS Leadbottom.

5. That the accused's absence was without proper authority.

6. That the absence continued until about 1300 hours on 6 April 1960.

Charge II:

1. That the accused is Sam Jones.

2. That the accused is presently attached to the USS Leadbottom.

3. That the accused was attached to the USS Leadbottom on 4 April 1960.

4. That the USS Leadbottom sailed from Newport, Rhode Island on 4 April 1960.

5. That the accused had a duty to move with the USS Leadbottom.

6. That the accused knew of the scheduled movement. 7. That the accused actually missed the movement through neglect.

Certain facts (namely one through three inclusive), are common to each offense. These facts, once proven, are applicable to both offenses. It should be noted, however, that a plea of guilty to one of the offenses admits all the elements of that offense but cannot be used as proof of the common elements of the other offense.1

EVIDENCE AVAILABLE

AT THIS POINT you will be faced with a mass of facts, some relevant, some not. Your task is to chose the evidence which will be necessary to prove the elements of your case. Let us assume that in the case of Sam Jones you have collected the following evidence: Service record entries as follows:

4 APRIL 1960: On unauthorized absence from 0730 this date. Missed sailing of this vessel from Newport, Rhode Island en-route to Boston Navy Yard. Jones

1. U.S. v. Dorrel, 18 CMR 424 (1954); U.S. v. Day, 23 CMR 691 (1957).