military service," particularly where the presence of a serviceman in such distant place was due to an overseas tour of duty.15 HE PROSECUTION IS not required to prove the exact whereabouts of the absent witness on the day of trial. The presumption of continued residence or absence, or actual proof that the witness is at the time of trial the necessary distance away," are sufficient. Even the appearance of the witness at the trial after receipt of his former testimony will not require the striking of that testimony, once the proper predicate is shown. But such a conclusion depends on the good faith of the trial counsel.18 Since in military law there is no absolute right to the physical presence of witnesses at a trial by court-martial, where good cause for their absence exists," it follows as a reasonable corollary that the party seeking to use the former testimony of an absent witness be required to show affirmatively the unavailability of the witness before offering the testimony in evidence."0 Where the unavailability of the witness is based on his unknown whereabouts, there must be an affirmative showing that diligent, timely, and thorough efforts were made to locate him. A mere perfunctory effort to locate the witness or the failure to establish his whereabouts will be insufficient." The absence of the witness may properly be established by evidence of inquiries made to ascertain his location and answers to the inquiries. Such evidence is circumstantial but is admissible, in spite of a superficial resemblance to hearsay, because it bears upon the issue of the diligence of the party making the inquiries." Evidence that the absent witness some undetermined time in the past was ordered to a distant place." or that he had expressed an intention to leave the jurisdiction," without more, is insufficient. Where the witness is shown to have been ordered to a distant place and to have actually left for such place; where he is shown to have been discharged, assigned to a reserve district where he claimed residence, and was paid mileage to such place; where he was discharged, 26 25 14. Cf., U.S. v. Ciarletta and Martin, 7 USCMA 606, 23 CMR 70 (1957). 15. U.S. v. Jester, supra, note 13. 16. Cf., U.S. v. Ciarletta and Martin, supra, note 14; Story, supra, note 3. 17. Cf., Dyche, supra, note 11. 18. Cf., U.S. v. Duff, 12 CMR 802 (1953), pet. rev. den., 13 CMR 142 (1953). 19. Cf., U.S. v. Ciarletta and Martin, supra, note 14. 20. Cf., U.S. v. Mulvey, 10 USCMA 242, 27 CMR 316 (1959); cf., U.S. v. Dyche, 8 USCMA 430, 24 CMR 240 (1957), aff'g, 23 CMR 723 (1956); cf., U.S. v. Valli, 7 USCMA 60, 21 CMR 186 (1956); cf., U.S. v. Milstead, 27 CMR 882 (1959); cf., Gunnels, supra, note 13; cf., U.S. v. Martin, 16 CMR 446 (1954). The cited cases, although deposition cases, appear to apply with equal force to former testimony, thereby drawing in question the validity of the statement in the MANUAL (paragraph 145b) that a failure to object to a lack of showing of unavailability constitutes waiver. Ray, supra, note 1, holds waiver. 21. Cf., U. S. v. Miller, 7 USCMA 23, 21 CMR 149 (1956); cf., U.S. v. Arthur, 22 CMR 482 (1956); cf., U.S. v. Streeter, 22 CMR 363 (1956), pet. rev. den., 22 CMR 331 (1956). 22. Nelson, supra, note 2. 23. U.S. v. Crosby, 21 CMR 562 (1956). 24. Cf., Arthur, supra, note 21. 25. Story, supra, note 3. 26. Cf., U.S. v. Ciarletta and Martin, supra, note 14. stated he was going to his home, over 100 miles away, and later called by telephone from his home"-in such cases the witness was held to have been shown to be unavailable. In any event, the sufficiency of the showing of the existence of conditions and qualifications essential to the admissibility of former testimony is, in the first instance, within the sound discretion of the trial court.28 Unavailability of the witness may be the subject of stipulation between the parties." Where resorted to, the clear purpose of counsel may be shown by both their conduct and other matters in the record of trial even though the stipulation itself may be defective in expressing that purpose." THE TESTIMONY OF the absent witness may be proved by the official record of the former trial, an admissible copy of that record, or the admissible notes of the reporter." The document should be identified and authenticated, marked as an exhibit, offered and received in evidence, and appended to the record." But the whole record should not be submitted to the court members-only that portion relating to the testimony of the absent witness may be seen by the members." Authenticity may be the subject of stipulation * or it may be established by taking judicial notice of the signatures on the record of trial." Not only must the former testimony be available in verbatim form, but the party offering it is also precluded from paraphrasing it when it is presented to the court." 38 36 34 Proof of the absent witness' testimony at a former trial may also be made by the recollection of a person who heard the testimony and remembers it, but this procedure should not be employed where the official record of the former trial is readily available." The prosecution may use former testimony for its whole case, if all witnesses are unavailable." But whether one absent witness' former testimony or many 27. Cf., U.S. v. Howard, 7 CMR 553 (1952). 28. Nelson, supra, note 2. 29. U.S. v. Vanderpool, supra note 4; U.S. v. Cambridge, 3 USCMA 377, 12 CMR (1953); U.S. v. Walsh, 10 CMR 694 (1953); U.S. v. Wright, 6 CMR 803 (1952). 30. U.S. v. Niolu, 4 USCMA 18, 15 CMR 18 (1954), rev'g, 13 CMR gds., 4 USCMA 18, 15 CMR 18 (1954); U.S. v. Phillips, 12 CMR 31. MCM, 1951, 145b. Where testimony at the former trial was given through an interpreter, see MCM, 1951, 141. See also, U.S. v. Day, 2 USCMA 416, 9 CMR 46 (1953), aff'g, 8 CMR 424 (1952); cf., U.S. v. Plummer, 1 USCMA 373, 3 CMR 107 (1952), remand'g, CM 347520, 1 CMR 351 (1951). 32. U.S. v. Fox, CM 350060 (Reh), 13 CMR 350 (1953); U.S. v. Niolu, CM 351138 (2d Reh), 13 CMR 189 (1953), rev'd on other gds., 4 USCMA 18, 15 CMR 18 (1954); U.S. v. Phillips, 12 CMR 265 (1953). 33. Walsh, supra, note 29. 34. U.S. v. Vanderpool, supra note 4; U.S. v. Cambridge, supra note 29. It has also been held that a failure to object to proof of authenticity constitutes waiver. Ray, supra, note 1. 35. MCM, 1951, 147a; U.S. v. Stein, 14 CMR 376 (1954), pet. rev. den., 15 CMR 431 (1954). It may be presumed that the record of former trial is unaltered following the official act of authentication by the proper persons. Stein, supra. 36. Cf., U.S. v. Tomaszewski, supra note 4; U.S. v. Eggers, supra note 6. 37. Phillips, supra, note 32. 38. MCM, 1951, 145b; U.S. v. Lindner, 7 CMR 560 (1952), pet. rev. den., 7 CMR 84 (1953). 39. Lindner, supra note 38. 40. Ray, supra note 1. are used, the testimony given at the former trial is open to objection as incompetent, immaterial, or irrelevant, or that the witness was incompetent, and an objection on those grounds can be interposed without regard to whether a like objection was made at the former trial." A failure to object will constitute waiver where it is clear that the right to object was understood and where the record shows that there was an intention to refrain from exercising the right. Waiver will not be invoked, however, if it would produce a manifest miscarriage of justice." The former testimony of an accused is admissible against him in the subsequent hearing, even though it includes admissions or confessions." The former testimony of the accused in extenuation or mitigation, however, is inadmissible on the merits at the rehearing." Former testimony admittedly is an aid to the prosecution primarily. Nevertheless, the propriety of its use is clearly recognized, as stated by Judge Brosman in U.S. v. Niolu: " Where witnesses at the first hearing are for specified reasons unavailable, it has been felt that both common sense and sound practice require that their former testimony be admissible, as having earlier withstood the rigors of cross-examination by the same adverse party. We are certainly without disposition to impede what appears to constitute a salutary procedure, and one which preserves the right of confrontation and cross-examination... LT. COL. ROBERT S. STUBBS, II, USMC 42. U.S. v. Vanderpool, supra, note 4. 200 (1960). 42. U.S. v. Vanderpool, supra, note 4. 43. MCM, 1951, 145b; U.S. v. Rodison, 15 CMR 466 (1954), pet. rev. den., 16 CMR 292 (1954). The same rule applies for former proceedings not amounting to a trial. Article 50, UCMJ; MCM, 1951, 145b; U.S. v. Sippel, 4 USCMA 50, 15 CMR 50 (1954), aff' g, 8 CMR 698 (1953); Sippel, supra, note 5. 44. U.S. v. Riggs, 22 CMR 598 (1956). 45. 4 USCMA 18, at 20; 15 CMR 18, at 20. For limitations on sentences in certain cases where former testimony is used, see MCM, 1951, 145b. Navy book, A MANUAL OF COURTS-MARTIAL PRACTICE and APPEAL (New York, Oceana, 1957). Captains Joe Munster and Murl Larkin have recently turned out a large, comprehensive, and authoritative treatise entitled MILITARY EVIDENCE (Indianapolis, Bobbs-Merrill, 1959). General Snedeker has written a sizable book, MILITARY JUSTICE UNDER THE UNIFORM CODE (Boston, Little-Brown, 1953), and a small pamphlet, A BRIEF HISTORY OF COURTS-MARTIAL (Annapolis, U.S. Naval Institute). Joseph Snee and Kenneth Pye's STATUS OF FORCES AGREEMENT AND CRIMINAL JURISDICTION (New York, Oceana, 1957) is a scholarly and well documented work that discusses a number of legal problems arising under Article VII of the Agreement with particular reference to applicable American Constitutional and Military Law. CDR Wolfe and LCDR Gulick have revised a work originally prepared by CAPT Taussig and CDR Sweitzer. This slender textbook, MILITARY LAW (Annapolis, U.S. Naval Institute, 1958), was written for the instruction of Midshipmen in the fundamentals of the Uniform Code of Military Justice. Each of the services have published a number of helpful how-to-do-it books. A number of these met with such an enthusiastic reception in the field that they are now out of print. Fortunately two of the most popular, the Air Force's COURT-MARTIAL INSTRUCTIONS GUIDE and the Army's Military Justice Handbook, THE LAW OFFICER, have been reprinted. Both of these are published in loose-leaf form so it may be inferred that they will be kept up-todate with page insertions. Either, or both, would be very helpful in drafting instructions. Two other useful pamphlets in the Military Justice Handbook series are THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY and THE TRIAL COUNSEL AND THE DEFENSE COUNSEL. These are detailed and practical guides with check lists, trial notes, illustrations and forms. The Navy's booklet, SPECIAL COURTS-MARTIAL: GUIDE FOR PRESIDENTS AND MEMBERS is another valuable work in this area. PERIODICALS AFFORD THE military law yer a particularly rich field of research. Since World War II military law has been a frequent subject for law review articles. Courts, including the Supreme Court, no longer hesitate to cite such articles as persuasive authority. Besides their value as secondary authority they are often the best source of information on new developments or special problems. Professors and lawyers are quick to use the reviews as forums to express their views on recent legislation and decisions. Often the only discussions of obscure or new concepts of law will be found in the law reviews. One may not agree with the conclusion of an article or comment but still find its critical analysis quite useful. Furthermore an article or case note can be an effective index to primary authority as such articles are usually carefully footnoted. Some articles in the field of military law are useful "how-to" articles. Often the JAG JOURNAL for example, has published pieces that are regular blueprints for some procedure or task. Thus the neophyte is given a step-by-step description, usually in layman's language. Many periodicals publish their own indexes from time to time. There are, however, so many law reviews that a consolidated index is necessary for effective research in this field. There are two such indexes. The older index, Jones-Chipman INDEX TO LEGAL PERIODICALS, is in six volumes and covers the years 1886 to 1937. The current index is the INDEX ΤΟ LEGAL PERIODICALS prepared by the American Association of Law Libraries and published by the H. W. Wilson Co. It was begun in 1908 and currently indexes more than 250 publications. It is published monthly with bound cumulative issues. Items are presently indexed by subject, case name, author, and book reviews. In the front of each issue it lists most of the current AngloAmerican law reviews and their price. Both the JAG JOURNAL and the MILITARY LAW REVIEW are indexed in this publication. IN THE FIELD of military law the following four periodicals are particularly important. The JAG JOURNAL, a monthly, has been published for nearly 15 years. Its objective is to instruct and inform Navy and Marine Corps personnel in current matter relating to military law and military affairs and to aid them in solving official and personal legal problems which may arise by reason of their service in the naval establishment: The mission of the JAG JOURNAL is to promote legal forehandedness among naval personnel charged with the administration of naval law. The goal to be attained through this unofficial medium of instruction and review for those untrained or trained in law is the clear understanding of the basic laws governing Navy life and of the rights and obligations of naval personnel ✶ ✶✶ The Air Force JUDGE ADVOCATE GENERAL BULLETIN is a specialized bimonthly publication sponsored by The Judge Advocate General's Department. The first issue, Volume I, No. 1, was published in March 1959. The publication provides a means for the exchange of ideas, experiences and information by the members of Air Force JAG. In addition, it contains legal articles, case notes, and other materials on civil and military law which pertain to the activities of the United States Air Force. Six quarterly issues of THE JUDGE ADVOCATE JOURNAL appeared between June 1944 and the end of 1945. Publication was then suspended and resumed in a new format as of December 1948. It is published quarterly by the Judge Advocates Association, Washington, D.C., an affiliated organization of the American Bar Association and composed of lawyers of all components of the Army, Navy and Air Force. In September of 1958, the MILITARY LAW REVIEW was issued as Department of the Army Pamphlet DA 27-100-1. Its objective is set forth in its preface as follows: This pamphlet is designed as a medium for the military lawyer, active and reserve, to share the product of his experience and research with fellow lawyers... the MILITARY LAW REVIEW is to be solely an outlet for the scholarship prevalent in the ranks of military legal practitioners. ... The Judge Advocate General's School at Charlottesville, Virginia, has a program for its advanced classes that results in the preparation of theses. To date, more than one hundred theses on subjects of interest to military lawyers have been completed. Some of these have been mimeographed while others were prepared in typewritten form only. Most of these are available on a loan basis from the school. The Army Library and the Navy Law Library in the Pentagon make available these theses. Space does not permit a listing of all subjects and titles but the following are fairly representative: Depositions, Insanity, Forgery, Military Searches and Seizures, Government Contracts, Taxation of Military Personnel, Military Personnel Claims Act, Constitutional Rights and the NATO Status of Forces Agreement, Mobilization Requirements for Legal Services in the Navy, Expert Testimony, Assimilative Crimes Act, Grants or Promises of Immunity Under Military Law, The Law Officer as a Trial Judge, Scope of Appellate Review of Record of Trial. LAW BOOKS AND MATERIALS that fall into the third major category are usually called "search" books. Strictly speaking, they are not a source of law but rather a means for finding the law and as such, are indispensable. Although this article is mainly interested in presenting an outline of the sources of naval law a few remarks on the technique of finding the law is in order. A one volume CITATORS AND INDEX TO COURTMARTIAL REPORTS (Rochester, Lawyers Cooperative Publishing Company, 1959) covering the first 25 volumes of the Court-Martial Reports is available. Its "Table of Court Martial Cases Cited" shows when a case has been cited by a subsequent case and whether it was overruled, distinguished, affirmed, not followed, and so forth. It also has tables of cases reported and of orders, laws and regulations cited as well as a detailed index. The DIGOPS can also be used as a sort of index to the COURT MARTIAL REPORTS as its digest paragraph will give citations to the full opinion in the CMRS. Unfortunately there is no cumulative index to the DIGOPS though one for the first 10 volumes is contemplated. The UNITED STATES COURT OF MILITARY APPEALS will soon have a cumulative index for their first 10 volumes. One of the most useful research tools in the field of military criminal law is a recent publication of Richard L. Tedrow, Chief Commissioner, United States Court of Military Appeals. This work, DIGEST-ANNOTATED AND DIGESTED OPINIONS U.S. COURT OF MILITARY APPEALS (Harrisburg, Stackpole, 1959), provides a subject approach to the decisions of this court. The cases are reduced to concise paragraphs arranged under 99 headings and further classified by a number of subheadings. Included are some cases from other federal courts and the author's opinion as to the state of the law in certain confusing areas. Before relying on the holding of a case a lawyer checks its authority by determining the subsequent history of a case. He wishes to know if the case has been approved, overruled, cited by other cases, and so forth. To do this he uses a book of tables called a citator. One such work for the Court of Military Appeals is James Hamilton's CITER TO UNITED STATES COURT OF MILITARY APPEALS OPINIONS (Dallas, American Guild Press, 1956). This is a loose-leaf subscription work that enables one to check the history and treatment of a case to within six weeks. Both the Army and Air Force have issued cumulative pocket parts to the MANUAL FOR COURTS-MARTIAL. The material is arranged in the same sequence as the manual and provides many references to opinions and decisions. It is particularly useful in keeping up to date on the many judicial changes to the manual. The most recent of these is the UNITED STATES ARMY 1959 CUMULATIVE POCKET PART TO THE MANUAL FOR COURTS-MARTIAL UNITED STATES 1951. THIS ARTICLE HAS been concerned only with current sources of naval laws. A comprehensive study of written naval laws would have to discuss the Laws of Oleron used by Richard the Lion Heart and the Black Book of the Admiralty. The early American Naval Articles, the work of John Adams, were largely the British Naval Articles of 1749. The Articles for the Government of the Navy were revised in 1862 and remained substantially unaltered from then until 1950. Because the Navy has operated under the Uniform Code of Military Justice since 1951, it is rarely necessary for the military lawyer to use the older materials. There are occasions, however, when the search for authority takes him to the pre-1951 law books. He should, therefore, have some familiarity with such standard works as the COURT MARTIAL ORDERS, NAVY COURTS AND BOARDS, and the NAVY DIGEST. The Navy published through the Government Printing Office, Washington, D.C., in digest form, selected court-martial decisions and the action taken in connection with them by the Judge Advocate General. This material appeared in pamphlets issued at irregular intervals during the year. For the period 1909 to 1950 these COURT MARTIAL ORDERS were bound in yearly volumes. The CMOS for the period 1916-1937, were collected in a two volume set, COMPILATION OF COURT-MARTIAL ORDERS 1916-1937 and indexed by CUMULATIVE INDEX TO COURT MARTIAL ORDERS 1916-1937. From 1937 to 1948, there are yearly indexes and after that each issue has its separate index. The NAVAL DIGEST 1916 contains selected digests of decisions and opinions. Much of this material has been printed in the coURTMARTIAL ORDERS and elsewhere but a great deal was published in it for the first time. It was supplemented by the NAVAL DIGEST 1921, which covered the periods 1916-1921. NAVAL COURTS AND BOARDS, 1937, covered the operation of the courts-martial system and functioned much as the MANUAL FOR COURTS-MARTIAL does today. It dealt with the various crimes and offenses, the evidence used to prove them and the sentences which could be imposed. It was issued by the Secretary of the Navy with the express approval of the President. Appendix B contained the Articles for the Government of the Navy. There had been early editions of this work published in 1923 and 1917. A useful supplement for NAVAL COURTS AND BOARDS, 1937, IS NAVAL JUSTICE (Washington, D.C., G.P.O., 1945), a textbook on naval law prepared under the direction of the Office of the Judge Advocate General. This practical handbook and guide to trial procedures gives the picture of naval law prior to the UCMJ. Prior to the advent of the Navy Directives System, unclassified directives promulgated by ordinarily of less than compelling significance. On the other hand, the objections that the accused may be saddled with an undue defense burden, or that he may be prejudiced by the human tendency of triers of fact to conclude that one charged with, say, five offenses, of which the proof of only two is substantial, probably committed the remaining three, are still most valid." It would therefore seem advisable that convening authorities, before referring several unrelated offenses to a single trial, carefully evaluate the impact that such joinder may reasonably have toward prejudicing a substantial right of the accused or resulting in a denial of a fair trial. The following situations are set forth as illustrative of joinder of offenses which may under certain circumstances be prejudicial: (a) Where a conflict of interests is involved concerning appointed or selected counsel with respect to one offense but not with respect to other charges against the accused.12 (b) Where a defense available to the accused with respect to one offense would involve, if asserted, an admission of one or more of the elements of another offense charged against the accused.13 (c) Where an offense of trifling culpability is joined with a serious offense and proof of the former is not independently admissible as proof of any part of the serious offense.14 11. See U.S. v. Jones, supra, note 2. 12. Cf. U.S. v. Best, 6 USCMA 39, 19 CMR 165. The court 13. See U.S. v. Marymount, 11 USCMA 745, 29 CMR 561, where the accused testified in denial of an offense of murder, and his crossexamination extended to the motive for such offense, which was the subject of another offense charged against him. stated that if the accused must judicially confess one offense in order to defend another, he is thereby prejudiced with respect to the former; State v. Rice, 163 S.E. 112, 202 N.C. 411, where the joinder of the offense of murder and the offense of assault on a state's witness committed pending the taking of his testimony in the murder trial was held prejudicial. (d) Where trial of one offense charged against the accused is certain to involve an evaluation of the accused's credibility or the defense of good prior character of the accused, and other offenses charged are of doubtful legal validity or provability but nevertheless tend seriously to impugn the accused's veracity or his character.15 (e) Where one offense charged against the accused can readily be processed for trial while others charged, but not part of the same transaction, will reasonably, because of extended investigation or otherwise, involve such delay that their joinder will have the effect of denying the accused his right to a speedy trial with respect to the former offense.16 If a situation should arise that would appear probably to prejudice the accused if certain offenses are tried at the same trial, the convening authority may consider himself figuratively in the middle because of the longstanding military rule, which is given effect in the following MANUAL provisions: When the preliminary inquiry shows that additional or different offenses have been committed, . . . the immediate commander may prefer appropriate new charges for the offenses which he believes cannot properly be disposed of under Article 15. In such a case, he should consolidate all charges against the accused into one set of charges; (paragraph 32c) ... Subject to jurisdictional limitations, charges agains an acused, if tried at all, should be tried at a single trial . . . (paragraphs 30f and 33h) The use of the word "should" in the above quotations has, however, been held not to create a mandatory rule but to repose considerable latitude in the referring of charges to trial." Thus, a failure to adhere to the practice of joining all known offenses does not, of itself, constitute error, and in this connection the motive and purpose of the convening authority is of substantial concern. It would seem therefore that the following two rules of procedure for the convening authority could profitably be followed: (1) Carefully balance the conflicting interests of speed, efficiency and convenience resultant of joinder against the possibility that the accused may be denied a fair trial or substantially prejudiced by such joinder. (2) Document fully all of the considerations which motivated the final decision. CAPTAIN MURL A. LARKIN, USN 14. This is a restatement of the MANUAL rule, para. 26c, and see U.S. v. Grant (CM 399759) 26 CMR 692 (larceny and UA of 2 days); U.S. v. Hines (dissent), 7 USCMA 75, 21 CMR 201 (aggravated assaults and unrelated drunk offenses). However, if the offenses are so related that proof of the minor offense would likely be independently admissible as proof of the intent, knowledge, motive, etc., involved in the other offense, no prejudice can be seen. Cf. MCM, para. 138g and see U.S. v. Lucas, 24 CMR 410, where the lesser offense was closely related in time to the greater and tended to show a "course of conduct." 15. See U.S. v. Aronson, 25 CMR 653. Such joinder "fairly impedes the accused in defending against another charge which has substance and which is one he is properly called upon to answer." Id. This example includes, of course, the highly reprehensible action of preferring collateral charges solely to show a disposition to commit criminal acts in general. If at least a prima facie case is not made out with respect to such collateral charges, it would seem fair to say that at least an appearance of evil exists. See also U.S. v. April (NCM 55 06228), unpublished, aff'd 7 USCMA 594, 23 CMR 58. 16. Cf. U.S. v. Batson (NCM 60 00457), unpublished, cert. pending; and U.S. v. Wahl, 5 CMR 733. 17. U.S. v. Awrey, 22 CMR 396; U.S. v. Gubser, 12 CMR 229. U.S. GOVERNMENT PRINTING OFFICE: 1960 |