The showing of knowledge will seldom be a problem where the order was a direct and personal one as in our fact situation. It does become a problem, particularly in light of the Curtin decision (supra), where the order is written, as in the case of a ship or station order or of the often violated travel order. Ideally in these situations, a copy of the document signed by the accused is desired. On the other hand, failure to prove that the accused read or had ever seen the document is not necessarily fatal to the government's case since our ultimate concern is if, not how knowledge was acquired. Evidence that the order was read at morning quarters with the accused present, that a copy of the order had been furnished him, that he had on occasion discussed portions of the same with shipmates, or more remotely that he had read the bulletin board while the order was posted could reasonably infer actual knowledge of the order. Before going into our last specification, let us suppose that the order violated was a ship or station order. It will be necessary to introduce into evidence the order violated by calling a witness (executive officer, administrative officer, etc.) who maintains an official file of such documents and questioning him as follows: (1) Are you the Executive Officer of this ship? (2) As such do you maintain a file of the original of all ships orders now in effect? (3) Does the file contain an order relating to...... (4) Will you please produce it. (Request the reporter mark this exhibit for identification). (5) I show you prosecution exhibit ... for identification and ask you if it bears a date? a serial number? a signature? tions-requires proof of but three elements, (1) That there was in effect a certain lawful general order, (2) that the accused had a duty to obey such order, and (3) that he violated the order (in a specific manner as set forth). Presumably Ensign Alert has already testified to his observations. Since the accused has disposed of the best evidence against him under this offense, we must turn again to circumstantial evidence for proof that the bottle contained alcoholic liquor. Having shown that there was a brown whiskey bottle, ask the court in argument, why would the accused sip from an empty bottle? Why would he comment as he did upon throwing away the bottle? Isn't the inference obvious? If the court is convinced beyond a reasonable doubt, well and good, but bear in mind that the trial counsel can only present available evidence, not create it. IT WOULD BE exceedingly cumbersome and time consuming were the trial counsel required to follow customary procedures in having doucments such as general orders and regulations authenticated and admitted into evidence. The concept of judicial notice is used here to great advantage. Judicial notice of a notorious fact may be taken upon mere request of the trial counsel and nothing more. However, in the case of an order, any authentic information concerning the document should be presented to the court at the time they are requested to judicially notice it. TRIAL COUNSEL: I request that the court take judicial notice of Article 1269, U.S. Navy Regulations dated 9 August 1948. In this connection, I furnish the court an official copy of said regulations for their inspection. PRESIDENT: Subject to objection of any member of the court, the court will take judicial notice of Article 1269, U.S. Navy Regulations. TRIAL COUNSEL: Permission is requested to read into the record, that article of which the court has taken judicial notice. PRESIDENT: Granted. Both the general regulation and the facts surrounding its alleged violation now being in evidence to establish the first and third elements, our presumption that all general orders are legal enters to establish the remaining element, the accused's duty to obey. IT SHOULD BE noted that the word "knowledge" has not appeared in either the pleading or proof of this latter specification. In the military a general order or regulation is akin to the (Continued on page 59) 2 DEPOSITIONS THE STATE OF THE LAW SOON AFTER THE enactment of the Uniform Code of Military Justice,' the Court of Military Appeals determined that Article 49 of the Code, allowing the use of depositions, did not guarantee to an accused the right of "confrontation" at the taking of the deposition. Therefore, the Court held that a deposition taken without the accused being present was admissible into evidence over his objection. In the recent case of United States v. Jacoby,* decided May 6, 1960, the Court reversed its former position and held, in part, that: “[t]he correct... construction of the Article [49] . . . requires that the accused be afforded the opportunity (although he may choose knowingly to waive it thereafter) to be present with his counsel at the taking of written depositions.' In view of this latter ruling of the Court of Military Appeals, it may be considered proper to pause for a moment to examine the current law concerning depositions and their use in trials by courts-martial. ... Article 49, Uniform Code of Military Justice, forbids the Government from introducing into evidence a deposition in a capital case; however, the defense may introduce testimony through the use of a deposition if he so desires. A "capital case" is one for which the death penalty may be imposed. Except for offenses for which the Code provides mandatory punishments,' the appropriate convening authority may make a case "noncapital" by directing that it be treated as "noncapital". Thereafter a deposition could be introduced into evidence. Each specification constitutes a separate "case" within the meaning of Article 49, UCMJ.' Article 49, UCMJ, further provides that a deposition may be introduced by the prosecution in a noncapital case whenever one of the following conditions is found to exist: 1. 10 USC 801-935. 2. U.S. CONSTITUTION, Amend. VI. 3. U.S. v. Sutton, 3 USCMA 220, 11 CMR 22, followed in U.S. v. Parrish, 7 USCMA 337, 27 CMR 127. 4. U.S. v. Jacoby, 11 USCMA 428, 29 CMR 244, see also U.S. v. Petterson, 11 USCMA 502, 29 CMR 319, U.S. v. Lawrence, 11 USCMA 504, 29 CMR 320. 5. U.S. v. Jacoby, supra, 433. 6. Para. 15, MCM. 7. Para. 15, MCM. 8. Article 49(f), UCMJ; Para. 15a(3) MCM. NOTE: At a rehearing or new trial in a case where the death penalty is permissible but not mandatory for the offense charged, the trial is not a capital case within the meaning of Article 49 if the sentence of the original hearing or trial was other than death. Para. 145a, MCM. 9. U.S. v. Gann, 3 USCMA 12, 11 CMR 12, N.B. After the courtmartial has reached its findings, the provisions of Article 49, UCMJ, forbidding the use of a deposition in a capital case by the Government, may be relaxed. In U.S. v. Horner, 2 USCMA 478, 9 CMR 108, it was pointed out that when a court-martial has announced its findings the maximum sentence has been determined. Therefore, the use of the deposition does not help support the findings. The use of the deposition in presentencing proceedings gives the court-martial additional information upon which to base an appropriate sentence. In the facts of that case it was also noted that the accused had requested the deposition and had consented to its admission. (b) When the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable cause, is unable or refuses to appear and testify in person at the place of trial.1 DISCUSSION: The reason why a witness is "unable" to testify must be clearly shown. Thus, if the operational commitments of a ship cause it to be at sea and outside of the territorial waters of the United States, depositions could properly be used in a courtmartial held on the ship at that time. However, the record should clearly reflect the circumstances in order that the inability of the witness to appear and testify is properly established." In certain cases, and especially when requested by the accused, the trial should be delayed briefly in order to allow the witness to appear and testify. Failure to do so may cause the case to be reversed on appeal." Where the courtmartial is held in a foreign country, the lack of a proper treaty agreement between that country and the United States may result in a foreign national not being subject to a service of process compelling him to appear and testify. In such a case, although the witness may reside within one hundred miles of the place of trial, his refusal to appear and the inability of the Government to cause this person to appear could be a basis for the use of a deposition of the witness.15 When a witness appears but then refuses to testify a deposition may not be introduced into evidence.10 (c) Where the present 17 whereabouts of the witness is unknown. DISCUSSION: In this group for example would be a serviceman who is to be discharged and his future residence is unknown. The mere fact that a serviceman may be a witness in a court-martial is not sufficient reason for the military authorities to retain him in the service beyond his period of enlistment.18 At trial the trial counsel should, through the use of proper official documents, plus information contained 10. Article 49(d) (1), UCMJ. 11. U.S. v. Dyche, 8 USCMA 430, 24 CMR 240. 12. Art. 49 (d) (2), USMJ. 13. See U.S. v. Mulvey, 10 USCMA 242, 27 CMR 316. 18. MARINE CORPS MANUAL, Paragraph 5602; Article C-10304 (5) (h), BUPERS MANUAL. 19 in the deposition, establish sufficient facts for the law officer of a general court-martial or the president of a special court-martial to determine that the witness is more than one hundred miles from the place of trial or out of the state. The trial counsel should positively establish the present location of the witness or the fact that the whereabouts of the witness is unknown. This can be accompanied by showing (1) that the witness is absent; (2) that letters sent to the last known residence of the witness have been returned with the address of the person unknown; (3) that an official search has failed to produce the present location of the witness; and (4) that telephone conversations with relatives or friends have failed to give any indication of the witness's present location.20 Article 49 further provides that any time after charges have been sworn to by an accuser " either party to a trial may take either an oral or a written deposition unless the appropriate convening authority forbids it.22 For or the purpose of establishing a factual picture to illustrate how the Jacoby case will affect a local command, assume that the prosecution desires to take an oral deposition in a forthcoming case. The trial counsel should submit a written letter to the convening authority containing the following points: (a) Reason why the deposition must be taken; (b) Type of deposition; (c) Points to be covered in the deposition; and If the accused has counsel the letter should be sent via this counsel. Where counsel has not been appointed the appropriate convening authority should immediately appoint counsel for the accused."4 The accused and his counsel must then decide at least these three basic questions: (1) Would the interests of the accused be best served by objecting to the taking of the deposition? 25 (2) If the foregoing question is answered in the negative then does the accused desire to cross-examine the witness? (3) Regardless of the answer to the foregoing question, does the accused desire to be present when the deposition is taken? After advice of counsel and mature deliberation the accused may decide that he does not desire to be present when the deposition is taken. In such a case, the best practice undoubtedly would be for the convening authority to require the accused to sign a written statement setting forth the fact that he has been informed that the deposition of a certain person is to be held at a specified time and place; that he has consulted with counsel satisfactory to him, stating counsel's name and qualifications; that this counsel has explained to the (Continued on page 60) 19. See U.S. v. Ciarletta, 7 USCMA 606, 23 CMR 70. 20. U.S. v. Miller, 7 USCMA 23, 21 CMR 149. 21. Article 30, UCMJ. 22. Article 49 (a), UCMJ; Para. 117a, MCM, US, 1951. 23. See, Para. 117a, b, MCM. 24. NOTE: Where the case is to be tried by general court-martial, the accused's counsel must have the qualifications set forth in Article 27, UCMJ. See U.S. v. Drain, 4 USCMA 646, 16 CMR 220. 25. In certain instances the testimony of a witness may be so material to the case that he should be subpoenaed to testify in person before the court-martial. See, among others, U.S. v. Thornton, 8 USCMA 446, 24 CMR 256. Cf. Para. 115, MCM. PENOLOGY A LETTER OF COMMENDATION ALL of our jobs in the Navy are important to the Navy. Sometimes, however, it is difficult to realize that almost all of these jobs offer real opportunities for what the fitness reports characterize as Original and Constructive Professional Work. The Bureau of Naval Personnel has a very fine and enlightened program for improving the administration of brigs-a program which has proved to be of great value to the Navy and to many of the people who are the Navy. If you think a little deeper than the surface, you will realize that good brigs, well and sympathetically administered, are an important part of the great tradition that "the Navy takes care of its own". Brigs are not, of course, the responsibility of Navy lawyers. We do, however, have a special interest in their administration. A very impressive case recently came to light of a Brig Officer who, through putting extra effort into his job and giving extra thought to it, managed to make improvement even beyond the overall progressive program which applies to brigs Navywide. Equally impressive is the understanding and thoughtful recognition given to his very real accomplishments by his Commandant, in these words: "The Commandant desires to commend you, upon the occasion of your detachment. . . for an outstanding performance of duty as Brig Officer... During your tour of duty. . . substantial changes directly attributable to your own efforts have been effected in the administration and operation of the (station) Brig. After your completion of an eight-week course in Penology at the Institute of Correctional Administration, American University, Washington, D.C., for which attendance at that course was the result of your own idea and initiative, you proceeded to train all of the staff personnel of your unit in duties concerned with counselling, administration, and the control and supervision of the brig inmates. A number of procedures which you instituted have been noted by the Commandant with approval and are worthy of specific mention herein. A counsellor system was established whereby mature and experienced petty officers are assigned the duty of both individual and group counselling for the confinees. A parolee system, under which deserving and well-behaved confinees are permitted to engage in different types of work and to perform various duties in the Navy Building and its immediate vicinity with some relaxation of restraint, was put into effect. This system, it is remarked, is operating most effectively. A correctional Advisory Board, constituted by the Brig Officer, a Medical Officer, a Chaplain, a Legal Officer, and two Brig petty officer counsellors, was organized for the broad purpose of reviewing records of the confinees with a view to making suitable recommendation relative to their local confinement status and decisions as to their ultimate restoration to duty or discharge. More attention to psychiatric and psychological problems, with which some confinees are con(Continued on page 60) DISOBEDIENCE (Continued from page 56) Codes and Statutes of the several states and of Ithe federal government. Just as a civilian need not "know" of the laws against gambling to be prosecuted thereunder, the service man need have no "knowledge" of a general order or reg-ulation in order to be guilty of its violation, for knowledge of such is conclusively presumed. The real problem is in determining what constitutes the general order which we are referring to. An analysis of conflicting court decisions on the question is beyond the scope of this article, the same having been adequately discussed elsewhere. To avoid any question, however, the rule that only "major" commands which are not more than one step removed from the departments of the Army, Navy and Air Force and the Headquarters of the Marine Corps and Coast Guard are authorized to issue general orders may be safely followed. The relative ease of proving general order violation as opposed to an Article 92 (2) violation is obvious. Yet all too often, an accused will be laboriously tried under the latter charge (generally involving a ship or station order) for an act which is also in violation of a general order. For this reason, trial counsel should check the specifications and notify the convening authority of any possible general order violation. Although we have discussed the charges individually in the order listed, during actual trial it would be appropriate to call witnesses in the chronological sequence of events. So doing tends to maintain the court's interest, avoids confusion and generally creates a smoother proceeding. Whether any available by-standers should be called to corroborate our material witnesses would depend largely upon how convincingly the latter have testified. Since repetitious testimony should be avoided anyway-but not at the risk of failing to establish a critical point-it may be an effective tactic to hold a good corroborating witness in reserve so that he may be loosed in rebuttal. The trial counsel should, bearing in mind that the court is a stranger to the case, consider all aspects of the evidence whether it be documents or testimony in deciding the proper order of presentation. THE FOREGOING HAS been an attempt to aid the inexperienced trial counsel in proving disobedience under a given set of facts which might typically arise. Let us in concluding consider some of the broader principles of the law of disobedience. 6. See Johnson, Violations of Military Orders and Regulations— The State of Law, JAG JOURNAL, Aug. 1959, p. 15. 7. U.S. v. Stone, 9 USCMA 191, 25 CMR 453 (1958). An order must be a positive and unequivocal mandate from a superior authorized to give the order to an inferior, directing him to do or refrain from doing something. Neither the language used nor the method of transmission is important, however, so long as the order is capable of being understood as such. Phrasing an order in polite terms using such words as "please" does not destroy its effect as an order; however, the order must amount to more than a mere request or suggestion.8 Orders, if properly pleaded are presumed to be lawful and if disobeyed for lack of legality the accused assumes the risk. He then has the burden of providing for example that the order (1) was not authorized to be given, (2) was given for the sole purpose of increasing the punishment for an expected offense i.e., where the accused is ordered not to commit an expected offense, (3) has as its sole purpose the attainment of some private end, (4) was given as a means of unauthorized punishment, 10 or (5) has unreasonably deprived the accused of his personal or constitutional rights. 9 In addition to the defenses of illegality and lack of knowledge, the defense of inability to comply is occasionally raised, based upon either physical or financial incapacity. Orders requiring expenditure of personal funds would appear to be lawful provided the officer so ordering has a right to demand such expenditure as a legitimate function of command, as for example, where a haircut is ordered. However, no hard and fast rule has been laid down and each case is treated generally on its own merits both as to financial " and physical 12 inability. WITH REGARD TO lesser included offenses under disobedience, they will most likely arise where the Government has failed to prove willfulness under Articles 90 and 91. Wilfulness as stated previously implies doing an act knowingly and purposely, it being a term which the court, based upon common experience, will have to infer from the circumstances. Should a reasonable doubt arise in the mind of the court that the particular disobedience was willful, the accused cannot be found guilty under Article 90 or 91. Should this point be reasonably raised at any time during the case in chief, an instruction on the elements of Article 92 (2) should be given as a lesser included offense. Where for 8. U.S. v. Pauley, 3 CMR 827 (1952). 9. MCM 1951, par. 169b. 10. U.S. v. Robertson, 17 CMR 684 (1954). 11. U.S. v. Pinkston, 6 USCMA 700, 21 CMR 22 (1956). 12. U.S. v. Heims, 3 USCMA 418, 12 CMR 174 (1953). example under our fact situation, the accused's drinking of an intoxicant could have affected his specific intent to defy authority such an instruction would be required. Trial counsel should be aware, however, that lack of knowledge under Article 90 charge does not open the door for the lesser offense of failure to obey for if there was no knowledge there was no offense whatever. A final word is in order on the concepts of superior and inferior as we have been discussing these terms. As applied to officers under Article 90, m, superiority may be by rank or by command. If by rank, the superior must be senior by at least one or more grades-there being no seniority based upon date of rank-and the officer must be a member of the same armed force as the accused. If senior by command, which concept takes precedence over seniority by rank, the parties may be of different armed forces, the requirement being that the accused is inferior in the chain of command. In the case of warrant officers, non-commissioned officers and petty officers under Article 91, the rank concept only is applicable, there being no seniority by command. Here too, the superior must be senior by one rating or more. DEPOSITIONS (Continued from page 58) accused his rights concerning being present during the taking of the deposition; and that he desires to waive these rights. The record of trial should have this statement attached to it to clearly indicate that the accused understood his right, but chose "knowingly to waive it thereafter." Where, however, the accused desires to be present during the taking of the deposition the command must afford him this right." If the deponent is a serviceman presently located at the command but due for transfer or discharge, it is a relatively simple matter to take the deposition with the accused present before the witness departs. Thereby all of the requirements of the Jacoby case will have been met. WHERE THE WITNESS is not present at the com mand, it will be necessary to either send the accused to the place where the deposition is to be taken or to subpoena the witness to testify at trial. The accused's alleged criminal acts or his past record of conduct may be of such a nature that the convening authority considers him to be a security risk and does not desire to allow the accused to go to the proposed location for the taking of the deposition. Furthermore, transporting of the accused, armed guards, counsel, and other personnel may become so cumbersome that the convening authority determines that the taking of a deposition is not feasible. In such a case the witness should be sub26. The accused must renew his objection at trial of the failure to afford confrontation, or it may be deemed to have been waived. Cf. ACM S-18684, Smith, dec. 10 Feb. 1960. (Unpublished); pet. den. 11 July 60 Docket No. 14,156. poenaed to testify at the trial. As noted above, a deposition may be used when certain conditions are found to exist, but it should also be borne in mind that the service of process, compelling a witness to appear and testify, runs throughout any part of the United States, its territories and possessions." In the case of a witness who is a foreign national residing outside the United States, its territories and possessions, an entirely different problem is presented. If the trial is to be held in that foreign country, a treaty may provide a means of producing the witness at trial, or if no treaty provisions are available it may be that the prospective witness will voluntarily appear at the trial. When the trial is to be held in the United States, a request through the chain of command to the State Department requesting the presence of a certain foreign national might be appropriate. Through appropriate diplomatic communications it may be possible to persuade the witness to travel to the place of trial to testify. This latter situation would undoubtedly be very time consuming. In conclusion, it is submitted that when a party to a trial deems that a particular witness' testimony is necessary, the Uniform Code provides several lawful means of producing this testimony. The ruling of the Court of Military Appeals in the Jacoby case, supra, has presented some new problems but they do not appear to be insurmountable. The benefit that the accused receives from the right of confrontation will have to be determined at some future date. However, the rule will insure his Constitutional rights and privileges, as well as those given to him by the Congress of the United States in the Uniform Code. MAJOR ELVIN R. COON, JR., USMC 27. See Art. 46, UCMJ, Para. 115, MCM. "In view of the many changes which you have successfully effected in the operation of the Brig.... and which are not at this time found in the ordinary brig, the problems involved in the over-all administration of that facility have been greatly reduced or eliminated. Your efforts should serve to facilitate the duties and responsibilities of your successor. "For your outstanding initiative, interest, and administrative ability, as reflected by the accomplishments referred to above, you are hereby commended." |