In addition to these service record entries let us assume you also have the statement of the accused's Division Officer that he announced the movement of the ship at morning quarters on 1 April 1960 and the statement of the Officer of the Deck on 1 April 1960 that he reminded all members of the liberty party of the scheduled movement. Bearing in mind that you must prove your case beyond a reasonable doubt, it is necessary at this point to consider the possible tactics of the defense. The defense case may consist of a denial of one or all of the elements, an attack upon the credibility of the prosecution's evidence or an affirmative defense such as mistake or physical incapacity. While the prosecution's case should not be built around a rebuttal of anticipated defenses, these possible defenses should be considered in preparing the prosecution's case. You should be prepared to present additional evidence on an element, to call a witness to corroborate the testimony of a key witness whose credibility has been attacked and to cross examine expected defense witnesses. PRESENTATION OF THE EVIDENCE AFTER DETERMINING WHAT you must prove and the evidence with which you will prove it, your next consideration should be the order in which you will present your evidence to the court. In all cases, evidence should be presented in the most logical order so as to enable the court to understand the relationship of each piece of evidence to the case as a whole. In all but the most complex case the best procedure is to present your evidence in a chronological order. This procedure would require you, in this instance, to present the service record entries establishing the inception of the absence, the movement of the ship and the termination of the absence in that order. You would then present available evidence on the issue of knowledge—actual knowledge. Service record entries are official records and as such are exceptions to the "hearsay rule" which would ordinarily exclude any statement made or recorded out of court. A service rec ord entry which is properly executed and properly authenticated is admissible to prove the facts which it recites.2 To be properly executed a service record entry must be one which is required by law or regulation and is executed in conformity with the regulations therefor as contained in Article B-2310-B-2335 of the BuPers Manual. Each entry is authenticated at the time it is made. It must be signed by the Commanding Officer, Executive Officer, Personnel Officer or such other officer who is specifically granted this authority to sign by the Commanding Officer." Once the entry is shown to have been signed by an officer who has the duty to make the entry, a presumption arises that the officer did so properly, knowing or ascertaining the truth of the entry. The service record entry is then considered testimonially trustworthy. WITH THESE SERVICE record entries you will be able to prove all of the elements of unauthorized absence and missing movement except the identity of the accused and the accused's knowledge of the movement. Since that portion of the entry which states that the accused was informed of the movement is a conclusion rather than a basic fact, it is hearsay and as such inadmissible to prove knowledge. On the issues of identity and actual knowledge you will have to produce additional evidence." In order to have a service record entry admitted into evidence it is necessary to lay a foundation for its admission. This foundation consists of calling the custodian of the record to the witness stand for the purpose of identifying the entries and showing their relevancy and competency. This can be accomplished by calling the Personnel Officer or Assistant Trial Counsel as custodian of the accused's service record or by the Trial Counsel himself taking the stand as the custodian of the accused's service record. To avoid the confusion that is sometimes caused by the trial counsel taking the witness stand it is preferable to call the Personnel Officer or an Assistant Trial Counsel if at all possible. The questioning would proceed as follows: Q. State your name, rank, organization and armed force. A. John Doe, LTJG, USN, USS Leadbottom. A. Yes, Jones. 2. MCM 1951, Par. 144d. 3. U.S. v. Desherlia, 22 CMR 686 (1956); also, 28 CMR 196. 4. U.S. v. Smith, 27 CMR 880 (1959). Q. What is your billet? A. Personnel Officer. Q. As Personnel Officer are you the custodian of the accused's service record? A. Yes. Q. Produce it please? The page containing the entries to be introduced is marked as a prosecution exhibition for identification and shown to the witness. Q. I show you now prosecution exhibit 1 for identification and ask you if you can identify it? A. It's a page 13 from the accused's service record. Q. How many entries appear thereon? A. Two. Q. Do both purport to bear a signature? A. Yes. Both bear my signature as Personnel Officer by direction. Trial Counsel then offers the entries to the Defense Counsel for his inspection and possible objection, and then offers them in evidence. If admitted the Trial Counsel then returns the page to the witness who reads each entry together with the signature and title of the authenticating officer. The heading at the top of the page and the accused's name, rate and organization should also be read in order to prove that the accused was attached to the unit at the time of the absence and that the entry refers to the accused.5 THE DEFENSE COUNSEL may then cross examine the witness on the service record entry. Irregularities in execution or authentication, disparity of dates or lapse of time between the occurrence and the execution of the service record entry may be brought out to affect the credibility of the entry." If the service record entries contain any irregularities which might affect their credibility it would be wise to present alternative evidence. This additional evidence could consist of the testimony of the accused's Division Officer on the elements of the offense." At this point, having introduced the service record entries on the absence and movement and having identified the accused, all that remains to be proven is actual knowledge of the scheduled movement. SINCE KNOWLEDGE IS a completely subjective commodity it must, in most cases, be proven 5. The same procedure is used to introduce service record entries to prove prior convictions as matters in aggravation. 6. U.S. v. Mullis, 14 CMR 503 (1954); U.S. v. Arisio, 16 CMR 367 (1954); U.S. v. Barrett, 3 USCMA 294, 12 CMR 50 (1953). 7. See LeClaire, How to Establish a Prima Facie Case, JAG JOURNAL, Jan. 1951, p. 3. circumstantially. Thus, an inference that an accused had actual knowledge of a prospective movement could be inferred from such facts as: (1) that the accused was present at a muster when the information as to the movement was passed to the crew; (2) that the scheduled movement was published in the Plan of the Day and that the Plan of the Day had been brought to the attention of the accused; and, (3) that the accused had been heard to discuss the prospective movement. Of course, there are other ways to circumstantially show that the accused had actual knowledge of the prospective movement. Indeed, this list of three is merely indicative of facts often available in a missing movement offense. But whatever the number of facts, the court must be convinced beyond a reasonable doubt that the accused had actual knowledge. In the present case you have the statements of the accused's Division Officer and the Officer of the Deck concerning the accused's knowledge. You would again proceed in chronological order by calling the accused's Division Officer and eliciting testimony as follows: Q. State your name, rank and organization. A. Division Officer, Deck Division. A. Yes, Jones. Q. How do you know the accused? A. He has been in my division for six months. Q. What is your procedure at quarters? A. My Division PO takes muster while my Department Q. Do you recall any announcements on that day? Q. Was the accused present at quarters on 1 April 1960? A. My entire division was present. I remember seeing the accused. You could also proceed with further questions to bolster your evidence of missing movement by asking the following questions: Q. Were you aboard the USS Leadbottom on 4 April 1960? A. Yes. Q. Did the ship sail? A. Yes, we got underway for Boston at about 0900. Q. Was the accused aboard? (Continued on page 20) 8. U.S. v. Thompson, 2 USCMA 460, 9 CMR 90 (1952). A Message From THE JUDGE ADVOCATE GENERAL (Continued from page 7) with AGN procedures repealed. Some were so stunned indeed, that they appeared to forgetfor a time at least the tradition that the Navy does the best possible with the tools at hand, and never gives up without trying. WHAT WAS WRONG WITH UCMJ THE JOB OF the Judge Advocate General and of all other full time Navy lawyers is to put law to work effectively for the Navy. Five years after its effective date, when I took office as JAG, this law had not yet been made to work to the satisfaction of Navy command. The new law, many commanders contended, (1) generated too much redtape, (2) caused too many delays, (3) used too much officer time in trials and work preliminary to trials, (4) required too many lawyers, (5) required too much paper work, (6) had built up a big pre-trial brig population, and (7) deprived the Commanding Officer of too much of his essential powers of mast punishment. These complaints were justified. Furthermore, they were serious-because the UCMJ had become the only instrument available to the Navy on which to base its entire system of government, of discipline, of justice, and of administration. The Navy, like any other organization, would become a shambles without adequate and effective sanctions to back up: orders of the Secretary; commands of the Chief of Naval Operations; Navy Regulations; orders and commands of commanding officers, subordinate officers, and petty officers. In addition to such sanctions, the system of procedures for imposing such sanction must be speedy, sure, and just. Leadership demands power as well as character; and justice also needs power. "La Justice sans la force," according to Pascal, "est impuissant, parce qu'il y a toujours des mechants." What was needed to be done, therefore, to make this essential law a better tool, more easily at hand, for the Navy and at the same time the basis for a better quality of justice as well as taut discipline and high esprit? Accepting Command's criticism of the Code, we came up with these administrative solutions: UCMJ had too much red tape? Let's cut the red tape. And we did. Let's streamline the procedures. And we did. Let's eliminate useless not-guilty pleas, and the extended preparation for and records of unnecessarily contested trials. And we did. Too many unsentenced prisoners in the brig? Let's cut the time from arrest to trial, and let's put our men to work instead of in the brig except where really necessary. And we did. In short, the law itself was fundamentally good. A few important changes are still required. These are now in our pending legislative program. They have been for about eight years. I was convinced, however, that substantially all of the Navy's major complaints could be cured by better technical administration by Navy lawyers, and by better legal service to commanders. We had been wasting too many years of the Navy's time putting up with a cumbersome system while we waited in vain for the new law to go away by itself, and for AGN to come back somehow. OPERATION TAPECUT: THE RESULTS WE HAD TO learn to live with UCMJ; and to live by it. The key to success for the Navy in doing so, was to recognize as a fact of life that the law itself can-and should-provide no more than the skeleton of any system of justice. Administration must provide the flesh, blood, and brains; and bring the system to life. The intelligence of administration will determine whether the flesh is fat and flabby or taut and muscular-and whether the brains work. So it was with UCMJ. Here is how we helped command to cut out the fat-and put the brains to work. Here are the statistics which show the success of Operation Tapecut. Biggest burden imposed on the Navy by UCMJ was the general court martial procedure. Replete with technical-legal "safeguards" to protect the accused from the time of his apprehension all the way through multiple-automatic reviews, each general court would tie up five or more officer-members plus at least four officer lawyers. Court reporters and protracted verbatim records also are mandatory. Pre-trial investigation is required in each case-as well as extended consideration, both pre-trial and post-trial, by flag officer convening authorities. Extended but necessary preparations for trial by both defense counsel and trial counsel piled up pre-trial brig time and tied up custodial man power as well as pay for non-productive time of accused persons. Common sense demands that such ponderous procedures be employed only when necessary. The figures prove that we are now applying this common sense approach: in 1956 we had 2,244 general courts. In 1959-with only an inconsequential decrease in population-we cut that figure down by better than half: to 1,064. Our best single year was 1958, when we cut general courts down by 760, or 43.5%. Even after that spectacular improvement, we cut still another 32% in FY 1959. The big explanation for the large number of general courts in 1956 and prior years was the vast number of desertion charges. In that year, for example, there were 1,157 men tried for Desertion. Of these, only 668 were convicted of the offense charged, the other 489 being acquitted by the courts and found guilty only of Unauthorized Absence. Of those convicted of Desertion, 12 of these convictions were reversed by convening authorities and Boards of Review reversed another 68 more. This meant that of those originally charged only approximately 50% actually ended up being convicted of Desertion. The going rate of ultimate confinement for this 50% was only about one yearthe maximum confinement authorized and available for the offense of Unauthorized Absence. Those commands which were consistently trying men for Desertion based only on a relatively short absence of 30-60 days were contacted and shown the error (and waste) of their ways. I was beginning to make some headway and improvement through these personal contacts when on 19 July 1957 I received a big assist to my program from the Court of Military Appeals. On that day they handed down their decision in the COTHERN case and in effect held that unauthorized absence alone, regardless of its length, was not evidence of a specific intent to desert. As a result of the COTHERN case, the Judge Advocate General drafted, and the Secretary released, ALNAV 28. This informed the whole Navy and Marine Corps of the effect of the COTHERN case and directed that: In preferring a charge of desertion and recommending trial thereon, it is therefore essential that there be some other evidence [other than a period of unauthorized absence, regardless of its length] of an intent to desert. Article 10 UCMJ, applies to this situation and if this additional evidence of an intent to desert is not reasonably and speedily available, the accused should be tried for unauthorized absence only." WITH THE ADVENT of the Cothern Rule and ALNAV 28, the way was then clear for a more uniform and just management of the unauthorized absentee problem-and for substantial savings of Navy funds and Navy manpower. In addition, we have cut the complexity and length of the general court trials as well as more than halving their absolute numbers. Knowing that federal criminal courts have substantially the same complex trial procedure as general courts-martial under UCMJ, I checked into how they kept their system from bogging down in their literally thousands of serious criminal cases. The answer was guilty pleas. More than a whopping 96% of their cases-investigated by the FBI-are not tried as contested cases. The Army had been using a system of negotiated pleas in general court cases since 1953. Their statistics proved that they were saving scores of thousands of dollars and much manpower. We adopted this system by SECNAVINST 5811.1 of 11 September 1957; and went the Army one better by extending it to special courts-martial by SECNAVINST 5811.2 on 17 December 1957. This was especially important to the seagoing Navy, because of the relief it provided to the entire over-worked officer structure in the preparation, trial, and review of this type of court-martial. Both Instructions were carefully and painstakingly drafted so as to ensure that every right guaranteed to an accused was safeguarded and that the province of the court in adjudging what it considers to be an appropriate sentence would not be invaded. The Judge Advocate General recently caused a survey to be made on the use of Pretrial Agreements during calendar year 1959. There was an overwhelming response that use of the Negotiated Plea had proved extremely beneficial to both the government and the accused and practically every command reported that its use saved the time of the trial and defense counsel and the court members. The survey proved that the biggest savings came in the use of the system in the serious type felony cases which involved confinement for five years or more. If tried without a guilty plea, such cases drag out for weeks on end, the reviews take from months up to years, and they frequently have to be tried all over again because of technical errors. All thing about it." Through the very wonderful cooperation efforts of the Chief of Naval Personnel, then Admiral James Holloway, and the Chief of Naval Operations, Admiral Arleigh Burke, we did. At the time Secretary Gates expressed his shocked surprise at the brig population, 62 out of every 100 men in confinement were under 21 years old. I found that a large segment of this brig population was composed of unsentenced prisoners. Furthermore, almost half of those serving such pretrial confinement, didn't need to be there at all in the first place. Men were being confined prior to trial for a two-day unauthorized absence; and first time absentees who had surrendered after more lengthy absences were likewise having pretrial confinement imposed. It took a good deal of convincing, but we finally persuaded commanding officers that such persons were not escape risks-generally not even if they were brought in by the FBI. When they were finally convinced that their necks would not be out if they did not confine an individual and he subsequently took off prior to trial, we began to get results. Also, in 1957 we required every case involving a long period of pretrial confinement to be brought to the attention of JAG. This personal attention and correspondence with convening authorities worked wonders. East Coast Marine commands were spectacularly successful, some reducing their brig population by almost 50% within a month after receiving the JAG's recommendations as to cutting pretrial confine Even more significant, however, was the 42% drop in the number of unsentenced prisoners. Because of the rotation of personnel involved, this means that literally thousands of men each year are not being wasted in pretrial brig confinement, and that custodial personnel and logistic support formerly required to take care of the almost twice as large brig population is now available for productive effort and manning the fleets and fleet Marine forces. (While on the subject of brig population, it must be noted that during this period spectacular progress was made also in stamping out recurrent epidemics of maltreatment cases in brigs. This was accomplished through the personal interest and close attention of the Chief of Naval Operations; the Vice Chief of Naval Operations, Admiral James Russell; and the Chief of Naval Personnel. They vastly improved the caliber of brig personnel and obtained servicewide recognition of the importance of the duties of brig officers and the necessity of command attention to brigs. As a result there have been no maltreatment cases of any consequence arising in Navy confinement facilities over the past two years or more.) |