clear and unambiguous language, but in practice it becomes only too clear that exercise of the authority conferred upon the law officer, at times, is not fully understood by those concerned. The situations, of course, are exceptional but it is these very exceptional situations which breath real life into the concept of "judge" as understood in the civilian community. There is not the slightest doubt that on the whole, over the period of the last ten years, the uniformedlawyer has acquitted himself with distinction in the administration and operation of the Uniform Code of Military Justice, particularly in the area of the law officer and the discharge of the duties and responsibilities of that office. The purpose is not to compare or weigh precisely who, whether individually or collectively, contributed more heavily to the development of the concept of the law officer, but rather to set forth for the record the instances of judicial interpretation of the unusual and exceptional situations which have come before the United States Court of Military Appeals and to note their impact upon the development and evolution of the law officer as an official of the general court-martial under the Code.

Concrete evidence of the earnest concern of the Court of Military Appeals for the continuing development and growth of the "judge" concept of the law officer is the following recommendation contained in the annual report of the Court for calendar year 1959: 9

3. (a) The law officer program initiated voluntarily by the Department of the Army, . . . should be established by law in each of the other services. Under this program specially selected senior officers deemed best qualified by maturity, temperament, training and experience to perform judicial functions, are designated by the Judge Advocate General as judicial officers. Their sole duty is to serve as law officers of general courts-martial. They are assigned to Judicial Areas or Circuits and remain under departmental command and operational control. The removal of the judicial officers from the command of the convening authorities will necessarily result in a greater degree of judicial independence, and the limitation of their duties will inevitably result in the necessary judicial acumen for performance in the image of a Federal Judge.

(b) If the law officers are placed in this independent position, then, and only then, other responsibilities more consistent with those reposed upon Federal Judges may wisely be vested in them. These should include:

(1) Authority to preside over the trial of an accused by general court-martial in a "jury-waived" session, provided the accused, upon the advice of

9. Annual Report of the United States Court of Military Appeals for 1959.

counsel requests it;

(2) Authority to pass on, with finality, all chal. lenges (article 41(a)) and all interlocutory questions including motions for findings of not guilty and those pertaining to the accused's sanity (article 51(b)).

(3) The sentencing power and the power to punish for contempts (articles 51 (a) and 48, respectively) now vested in the members, should be transferred to the law officer.

THE LAW OFFICER program referred to above was initiated by the Department of the Army on 1 January 1958 in two pilot areas and has demonstrated that specialization by law officers has resulted in a higher standard of performance, fewer errors, and less reversals by appellate agencies. 10 When Mr. Jackson, the then Assistant Secretary of the Navy, heard about the Army program he asked the Navy JAG why the Navy didn't have a similar program. Following the report of a study conducted by JAG on the percentage of law officer error 11 in the Navy, the Secretary of the Navy established a pilot law officer program 12 similar to the one now in effect in the Army. Effective 3 January 1961 two Judiciary Units were activated and the officers assigned to these units are under the management control of the Judge Advocate General. The purpose of the program is to develop a hard core of Law Officers who, by devoting their full time and energies to their task, will develop a high degree of expertness not otherwise available. A similar program was inaugurated by the Commandant of the Marine Corps during the latter part of 1960.13 The law officer program and the recommendation for increased powers for the law officer mentioned in the 1959 annual report was again favorably endorsed by the Court of Military Appeals in its report for calendar year 1960.14

With the foregoing as background a review of some of the more important cases decided by the Court of Military Appeals might be in order. In an Army case tried under the 1949 Manual for Courts-Martial the president of a general court-martial decided several issues which should have been submitted to the law member.25 Although the case was tried under the Articles

10. Annual Report of the Judge Advocate General of the Army for 1958.

11. Annual Report of the Judge Advocate General of the Navy for

1959.

12. SECNAV NOTICE 5450 of 6 December 1960; Annual Report of the Judge Advocate General of the Navy for 1960.

13. Annual Report of the Judge Advocate General of the Navy for 1960.

14. Annual Report of the United States Court of Military Appeals for 1960.

15. U.S. v. Berry, 1 USCMA 235, 2 CMR 141.

of War as amended and the 1949 Army Manual for Courts-Martial, the Court of Military Appeals was quick to draw an analogy between the law member and the "law officer" under the Uniform Code of Military Justice. Accepting the essential resemblance of the law member under the Articles of War to the law officer under the Code, the Court observed:

There can also be no doubt of the nature of Congressional intent as to the function and authority of both within the organization and operation of a courtmartial. We are equally without uncertainty as to the presence of serious inconsistency between these conceptions and the conduct of the law member in the case at bar. If the president of a general courtmartial-freely selected as he is by the convening authority, possibly more concerned with military discipline than with law administration, and almost certainly less well informed within the latter sphere under ordinary circumstances-is able to usurp the judgelike functions of the law member, then, we are much afraid, at least one barrier interposed by Congress in the path of what has been popularly characterized as "command influence" has been weakened, if not removed.

We recognize, of course, that, on occasion through inadvertence or momentary indecision, a law member or law officer may fail to rule promptly on an issue before him. We have observed instances of this sort in which the president has stepped into the breach and acted. Isolated and minor examples of this nature do not concern us greatly. In the instant case, however, petitioner was denied, not once but repeatedly, the right to have the court-martial's counterpart of the judge rule on issues raised by his counsel and presenting substantial questions of law. We need not decide whether the law member deliberately failed to carry out the responsibilities entrusted to him, or whether he was intimidated into action by an aggressive president. The record of trial helps us but little on this question; the fixing of blame is not our purpose here; and the matter is of little moment in any event. Whatever the explanation, the record discloses an inherently and generally prejudicial disregard for an important segment of the procedures deemed necessary by Congress in the establishment of a scheme of military law administration more nearly in accord with the American system of criminal justice. To condone the practices reflected in this record would be to invite subversion of what we cannot escape regarding as an overriding policy of vital import-a "critical and basic norm operative in the area" of military justice.

IN THE AREA of ruling on the admissibility of evidence the law officer must exercise caution and should avoid hasty rulings which not infrequently only result in prejudicial error. Arbitrary action in overruling an objection and refusing to permit a statement of the grounds for such objection usually results in an uninformed ruling and generally deprives appellate author

ities of a proper record upon which to assess the correctness of the law officer's action. While the law officer's ruling is not lightly to be disregarded, if it is incorrect as a matter of law, an appellate tribunal is not bound by it.16 And although it is advisable to receive a statement of reasons in support of an objection from counsel the law officer is not required to give reasons in support of his ruling. Failure or refusal to provide an explanation for a ruling cannot be regarded as an indication of arbitrary or capricious action. Furthermore the law officer can go beyond ruling on the admissibility of evidence and ask questions to clear up uncertainties in the evidence or to develop further the facts for the better understanding of the court members. However, he cannot lay aside impartiality and become an advocate for one side or the other.17

In another area involving determination by the law officer of interlocutory questions, the Court of Military Appeals has recognized in the law officer a broad discretion in the manner in which he conducts the proceedings, and any procedure which expedites the trial is proper, as for example where the law officer holds out-of-court hearings and hears evidence in support of interlocutory questions prior to trial. However, there is this caveat, he should be careful not to rule on questions which are to be subsequently determined by the court. 18

The case of United States v. Duncan 19 presents an unusual court setting which it is hoped will not arise again in the administration and operation of the present court-martial system under the Code. After a plea of guilty to certain offenses one of the members of the court sought to inquire as to whether certain participants in the transaction were in uniform. The law officer ruled that the question was immaterial in view of the plea of guilty. However, he explained that the information could be elicited after the findings. After the findings trial counsel called a military policeman to satisfy the court member's curiosity about the uniforms. Trial counsel proceeded far enough to show the apparel of the participants, when the defense counsel objected on the grounds that the accused had admitted to the offenses and the testimony, was irrelevant. Trial counsel then announced he had no further questions, but the court member was not satisfied. He thereupon asked the witness whether the accused was drunk. The witness replied in the affirmative,

16. U.S. v. Brown, 10 USCMA 482, 28 CMR 48.

17. U.S. v. Bishop, 11 USCMA 117, 28 CMR 341; U.S. v. Weaver, 9 USCMA 13, 25 CMR 275.

18. U.S. v. Richardson, 1 USCMA 558, 4 CMR 150. 19. U.S. v. Duncan, 9 USCMA 465, 26 CMR 245.

clear and unambiguous language, but in practice it becomes only too clear that exercise of the authority conferred upon the law officer, at times, is not fully understood by those concerned. The situations, of course, are exceptional but it is these very exceptional situations which breath real life into the concept of "judge" as understood in the civilian community. There is not the slightest doubt that on the whole, over the period of the last ten years, the uniformedlawyer has acquitted himself with distinction in the administration and operation of the Uniform Code of Military Justice, particularly in the area of the law officer and the discharge of the duties and responsibilities of that office. The purpose is not to compare or weigh precisely who, whether individually or collectively, contributed more heavily to the development of the concept of the law officer, but rather to set forth for the record the instances of judicial interpretation of the unusual and exceptional situations which have come before the United States Court of Military Appeals and to note their impact upon the development and evolution of the law officer as an official of the general court-martial under the Code.

Concrete evidence of the earnest concern of the Court of Military Appeals for the continuing development and growth of the "judge" concept of the law officer is the following recommendation contained in the annual report of the Court for calendar year 1959:9

3. (a) The law officer program initiated voluntarily by the Department of the Army, . . . should be established by law in each of the other services. Under this program specially selected senior officers deemed best qualified by maturity, temperament, training and experience to perform judicial functions, are designated by the Judge Advocate General as judicial officers. Their sole duty is to serve as law officers of general courts-martial. They are assigned to Judicial Areas or Circuits and remain under departmental command and operational control. The removal of the judicial officers from the command of the convening authorities will necessarily result in a greater degree of judicial independence, and the limitation of their duties will inevitably result in the necessary judicial acumen for performance in the image of a Federal Judge.

(b) If the law officers are placed in this independent position, then, and only then, other responsibilities more consistent with those reposed upon Federal Judges may wisely be vested in them. These should include:

(1) Authority to preside over the trial of an accused by general court-martial in a "jury-waived" session, provided the accused, upon the advice of

9. Annual Report of the United States Court of Military Appeals for 1959.

counsel requests it;

(2) Authority to pass on, with finality, all challenges (article 41 (a)) and all interlocutory questions including motions for findings of not guilty and those pertaining to the accused's sanity (article 51(b)).

(3) The sentencing power and the power to punish for contempts (articles 51(a) and 48, respectively) now vested in the members, should be transferred to the law officer.

THE LAW OFFICER program referred to above was initiated by the Department of the Army on 1 January 1958 in two pilot areas and has demonstrated that specialization by law officers has resulted in a higher standard of performance, fewer errors, and less reversals by appellate agencies. 10 When Mr. Jackson, the then Assistant Secretary of the Navy, heard about the Army program he asked the Navy JAG why the Navy didn't have a similar program. Following the report of a study conducted by JAG on the percentage of law officer error " in the Navy, the Secretary of the Navy established a pilot law officer program 12 similar to the one now in effect in the Army. Effective 3 January 1961 two Judiciary Units were activated and the officers assigned to these units are under the management control of the Judge Advocate General. The purpose of the program is to develop a hard core of Law Officers who, by devoting their full time and energies to their task, will develop a high degree of expertness not otherwise available. A similar program was inaugurated by the Commandant of the Marine Corps during the latter part of 1960.13 The law officer program and the recommendation for increased powers for the law officer mentioned in the 1959 annual report was again favorably endorsed by the Court of Military Appeals in its report for calendar year 1960.14

With the foregoing as background a review of some of the more important cases decided by the Court of Military Appeals might be in order. In an Army case tried under the 1949 Manual for Courts-Martial the president of a general court-martial decided several issues which should have been submitted to the law member.15 Although the case was tried under the Articles

10. Annual Report of the Judge Advocate General of the Army for 1958.

11. Annual Report of the Judge Advocate General of the Navy for 1959.

12. SECNAV NOTICE 5450 of 6 December 1960; Annual Report of the Judge Advocate General of the Navy for 1960.

13. Annual Report of the Judge Advocate General of the Navy for 1960.

14. Annual Report of the United States Court of Military Appeals for 1960.

15. U.S. v. Berry, 1 USCMA 235, 2 CMR 141.

of War as amended and the 1949 Army Manual for Courts-Martial, the Court of Military Appeals was quick to draw an analogy between the law member and the "law officer" under the Uniform Code of Military Justice. Accepting the essential resemblance of the law member under the Articles of War to the law officer under the Code, the Court observed:

There can also be no doubt of the nature of Congressional intent as to the function and authority of both within the organization and operation of a courtmartial. We are equally without uncertainty as to the presence of serious inconsistency between these conceptions and the conduct of the law member in the case at bar. If the president of a general courtmartial—freely selected as he is by the convening authority, possibly more concerned with military discipline than with law administration, and almost certainly less well informed within the latter sphere under ordinary circumstances-is able to usurp the judgelike functions of the law member, then, we are much afraid, at least one barrier interposed by Congress in the path of what has been popularly characterized as "command influence" has been weakened, if not removed.

We recognize, of course, that, on occasion through inadvertence or momentary indecision, a law member or law officer may fail to rule promptly on an issue before him. We have observed instances of this sort in which the president has stepped into the breach and acted. Isolated and minor examples of this nature do not concern us greatly. In the instant case, however, petitioner was denied, not once but repeatedly, the right to have the court-martial's counterpart of the judge rule on issues raised by his counsel and presenting substantial questions of law. We need not decide whether the law member deliberately failed to carry out the responsibilities entrusted to him, or whether he was intimidated into action by an aggressive president. The record of trial helps us but little on this question; the fixing of blame is not our purpose here; and the matter is of little moment in any event. Whatever the explanation, the record discloses an inherently and generally prejudicial disregard for an important segment of the procedures deemed necessary by Congress in the establishment of a scheme of military law administration more nearly in accord with the American system of criminal justice. To condone the practices reflected in this record would be to invite subversion of what we cannot escape regarding as an overriding policy of vital import-a "critical and basic norm operative in the area” of military justice.

IN THE AREA of ruling on the admissibility of evidence the law officer must exercise caution and should avoid hasty rulings which not infrequently only result in prejudicial error. Arbitrary action in overruling an objection and refusing to permit a statement of the grounds for such objection usually results in an uninformed ruling and generally deprives appellate author

ities of a proper record upon which to assess the correctness of the law officer's action. While the law officer's ruling is not lightly to be disregarded, if it is incorrect as a matter of law, an appellate tribunal is not bound by it.16 And although it is advisable to receive a statement of reasons in support of an objection from counsel the law officer is not required to give reasons in support of his ruling. Failure or refusal to provide an explanation for a ruling cannot be regarded as an indication of arbitrary or capricious action. Furthermore the law officer can go beyond ruling on the admissibility of evidence and ask questions to clear up uncertainties in the evidence or to develop further the facts for the better understanding of the court members. However, he cannot lay aside impartiality and become an advocate for one side or the other.17

In another area involving determination by the law officer of interlocutory questions, the Court of Military Appeals has recognized in the law officer a broad discretion in the manner in which he conducts the proceedings, and any procedure which expedites the trial is proper, as for example where the law officer holds out-of-court hearings and hears evidence in support of interlocutory questions prior to trial. However, there is this caveat, he should be careful not to rule on questions which are to be subsequently determined by the court.18

The case of United States v. Duncan 19 presents an unusual court setting which it is hoped will not arise again in the administration and operation of the present court-martial system under the Code. After a plea of guilty to certain offenses one of the members of the court sought to inquire as to whether certain participants in the transaction were in uniform. The law officer ruled that the question was immaterial in view of the plea of guilty. However, he explained that the information could be elicited after the findings. After the findings trial counsel called a military policeman to satisfy the court member's curiosity about the uniforms. Trial counsel proceeded far enough to show the apparel of the participants, when the defense counsel objected on the grounds that the accused had admitted to the offenses and the testimony, was irrelevant. Trial counsel then announced he had no further questions, but the court member was not satisfied. He thereupon asked the witness whether the accused was drunk. The witness replied in the affirmative,

16. U.S. v. Brown, 10 USCMA 482, 28 CMR 48.

17. U.S. v. Bishop, 11 USCMA 117, 28 CMR 341; U.S. v. Weaver, 9 USCMA 13, 25 CMR 275.

18. U.S. v. Richardson, 1 USCMA 558, 4 CMR 150. 19. U.S. v. Duncan, 9 USCMA 465, 26 CMR 245.

but the law officer ordered the evidence stricken on the ground that a proper foundation had not been shown. Neither defense counsel nor trial counsel objected to the ruling, but the court member was not satisfied, for he sought to argue with the law officer. After a short dialogue, the member was informed that the matter had been ruled upon and the ruling was final. The member exhibited his irritation with the law officer by stating, "Well, that's great." In an opinion by George W. Latimer, Judge, the Court made the following observation on this incident:

Before proceeding with our discussion on the merits of the appeal, we believe it apropos to make a short comment about the conduct of the court member. It is long past the time when members of courts-martial should seek to use their official position or rank to argue with and belittle the rulings of law officers. They must accept the fact that the law officer is the judge of a military court and he rules on questions of law and other interlocutory questions. Members of courts are not monitors of his rulings. Their duty is to determine the guilt or innocence of the accused, and they should not depart from that role. If factual situations are underdeveloped or unclear, they are entitled to ask clarifying questions. However, there are proper means by which this may be done and, except in those instances where the Code gives the court the right to overturn a law officer's rulings, court members must accept rulings of law from the “judge” and not become piqued at his decisions. Caustic comments neither add to the dignity of the court members nor the atmosphere of the courtroom drama. In this instance, the record indicates that the member stepped out of character, but fortunately the law officer exercised his judicial powers well.

While the law officer in the Duncan case, supra, "exercised his judicial powers well," this unfortunately is not the case in every trial presided over by a law officer. In United States v. Walters,20 in the course of the trial, the accused's civilian attorney intimated that he might wish to present certain evidence "after the supper hour." The law officer then informed him that he was presumptuous in presuming that they were going to eat. Later, the law officer pointed out to the court members that it might not be a bad idea if the defense counsel were to return to law school. It also appears that the law officer held a conference with the trial counsel out of the presence of defense counsel shortly after trial opened and further that during two recesses he was closeted with the members of the court. The Court of Military Appeals, in an opinion by the late Paul W. Brosman, Judge, made the following observations on the conduct of the law officer:

20. U.S. v. Walters, 4 USCMA, 617, 16 CMR 191.

In addition to the specific prohibitions, set forth in the Manual for Courts-Martial and in the Uniform Code, there exist certain basic principles which underlie the conduct of trials by court-martial-or any other sort of tribunal. Not the least of these is that the court's actions and deliberations must not only be untainted, but must also avoid the very appearance of impurity. Cf. United States v. Johnson, 318 US 189, 87 L ed 704, 63 S Ct 549; United States v. Atkinson, 297 US 157, 80 L ed 555, 56 S Ct 391; Ryan v. United States, supra. When such an unhappy appearance is present, proper judicial administration often requires reversive action.

We need not-and do not-question the motives of the law officer who functions at the trial of the case before us. The point is that he sadly neglected appearances. The Uniform Code purports to set the law officer apart from court members-much as a judge is set apart from the jury. Admittedly, this segregation is difficult to maintain at times in the military milieu, since law officer, court members, and trial personnel may be thrown together-occasionally but necessarily—in the performance of essential military duties quite unrelated to the trial of the case. This Court one may be sure is fully aware of these necessities. Cf. United States v. Adamiak, 4 USCMA 412, 15 CMR 412. Yet we do not feel required to sanction close camaraderie between trial personnel and members of the court when nothing in their military duties demands the development of such a relationship during trial. Although there be no express rule in the Manual-or elsewhere in the traditional sources of military law— dealing with conduct during a recess, a law officer must exercise sound discretion in the avoidance of behavior at such times inconsistent with the proper and dignified operation of courts-martial, or with general confidence in their integrity. Accordingly, we consider that, in the instant case, the law officer's behavior during the two recesses constituted error. ... A law officer must not forget that sound principles of judicial administration demand that he avoid undue controversy with other participants in the trial, and the Manual states that "he should not depart from the role of an impartial judge, or assume the role of a partisan advocate." Paragraphs 38b(3), 73c (1). Also, he should foresee that excessive participation in controversies with counsel will inescapably give rise to claims of bias, to challenges for cause, or to contentions that his interference with counsel hindered their representation of the accused. A FURTHER STRENGTHENING of the authority of the law officer is to be seen in the decision of the Court of Military Appeals in the case of United States v. Johnpier 1 involving the application of paragraph 55 of the Manual. This paragraph provides for the suspension of the trial in order to obtain the views of the convening authority in situations where it becomes manifest, in the course of a trial, that the evidence as to any specification is not legally suffi21. U.S. v. Johnpier, 12 USCMA 90, 30 CMR 90.

21