been committed at the original trial. The prosecution contended that Martin's testimony at the first trial respecting his alibi was false. The defense contended the prosecution was estopped by res judicata.

The Court held that res judicata did apply, and that the law officer erred in denying the motion to dismiss. The Court's reasoning was that since a court of competent jurisdiction had previously passed on the issue-determined from the instructions given—a second trial upon the same issue could not be had.

Again, as in Smith, case mentioned earlier, the Court fully discussed the doctrine and its applicability to the military, and it had the additional problem of determining whether the doctrine should apply to a perjury prosecution.

The Court forthrightly discussed the public policy considerations favoring and opposing the res judicata doctrine. Judge Latimer, the author, wrote:

In that instance [Smith, supra] we gave careful thought to the policy considerations underlying the diametrically opposite holdings on the defense of res judicata in criminal cases. Generally speaking, those authorities who refuse to accept the doctrine in perjury cases rely on a policy that to give effect to the defense offers an accused a reward for testifying falsely. Authorities accepting the doctrine are influenced by the policy that criminal litigation would never end if each time an accused testified in his own behalf and convinced a jury he was innocent, he could be tried for the untruthfulness of testimony. Fortunately, we need not balance policy matters influencing opposing views, for the Manual has spoken in that area and its terms must control.

In Martin the Court then clearly and unequivocally adopted the Manual rule and the one also used in United States district courts. That rule is:

a defendant's prior acquittal precludes his subsequent prosecution for perjury committed at the former trial, if a flat contradiction of the prior acquittal is involved in the subsequent prosecution. U.S. v. Martin, supra at 349.

It is often difficult to say what facts or issues were determined at an original trial. The rule is clear, but in applying it to a certain set of facts we must use an accepted standard or test. In U.S. v. Sealfon, 332 U.S. 575, the Supreme Court, at page 579, said that determining whether an acquittal in a prior trial embraces a particular issue "depends upon the facts adduced at each trial and the instructions under which the jury arrived at its verdict at the first trial."

In other words, in deciding whether res judicata is a proper defense we look first at the facts brought out in the first trial, and second we look at the instructions given to the jury (or in the military tribunal to the court members). If the second trial is an attempt to prove or disprove the same factual issue as was adjudicated in the first trial, under the instructions given by the law officer, then we can say that the defense of res judicata is appropriate. If the facts proved at the second trial are not the same as those involved at the first trial then, of course, there is no attempt to readjudicate the same issues, and the doctrine does not apply.

The most recent military case in this field is U.S. v. Hooten, 12 USCMA 339, 30 CMR 399.

At a special court-martial Hooten was charged with larceny by check. He testified that he had given his wife a sum of money to be deposited before he wrote these

checks, with instructions to deposit the money in the bank. The woman (his purported wife) testified that she had received the money but simply forgot to make the deposit. The president of the court-martial instructed the members on the defense of mistake. The accused was acquitted of these offenses. Later he was tried by general court-martial for perjury. The government contended that the defendant's testimony that he had given the money to his wife to be deposited in the bank was false and that at the time he testified under oath he knew it to be false.

At the second trial for perjury the accused asserted the defense of res judicata, but the law officer denied it. The accused was subsequently convicted of perjury. Upon appeal the Court of Military Appeals reversed the conviction and said that the law officer erred. The second court-martial, i.e. the general court, was nothing more than an attempt on the part of the government to re-litigate this factual issue. Specifically, the first court of competent jurisdiction, i.e. the special court, had already made a determination that the accused had given his wife the money to be deposited, and the prosecutor now was trying to prove that accused had not given her this money. Res judicata properly applied here because this identical issue had already been adjudicated by the first court.

The Court of Military Appeals said it was clear from looking at the facts and instructions given-that the first court acquitted the accused because they thought he had in fact given her this money to deposit, and that he was honestly mistaken at the time he wrote the checks.

Earlier, we said that generally speaking this defense applies to questions of fact, not questions of law.

This statement might seem to contradict the language used in paragraph 71b of the Manual. Recall that the Manual says it may be used as a defense against any issue of fact or law which has been finally determined. It is perhaps misleading that the writers of the Manual included the phrase "or law." Generally, when there is an error of law this does not mean that the case cannot be reheard, and the same point of law readjudicated. The trouble we face is this: It is often difficult to determine just what is a question of law and what is a question of fact. Indeed, there are times when we have a question which presents mixed examples of fact and law. In other words, many of these determinations made in trials are just not susceptible to easy labelling.

We can see from this short discussion that it is not always easy to determine just what has been previously decided. If the identical issue has already been adjudicated then res judicata applies. If the new facts are not identical then res judicata does not apply and the evidence may be admitted.

In making this difficult analysis the law officer (president) must closely look at the evidence entered at the first trial; must look at the instructions given under which the first verdict was determined; and must then decide whether this is an attempt to prove something which has already been decided by a court of competent jurisdiction.

The doctrine of res judicata is a sensible rule, a logical

rule, and without it we would have endless litigation of the same issues.

LCOL REMMEL H. DUDLEY, USMC Staff Legal Officer, 3rd Marine Division

CHANGES TO JAG
MANUAL

CHANGE 1 LESS CLERICAL CORRECTIONS

0129c

changed to conform with SECNAVINST P5212.5B, Disposal of Navy and Marine Corps Records, of 21 June 1961.

0131i (1)

entitlement to fees of civilian witnesses clarified.

0131i (2)

per diem allowance of civilian witnesses changed from $12 to $16 in accordance with Attorney General's regulations of 27 October 1961 (26 F.R. 10232, 28 CFR 21.1, NOTAL).

0133a

reference to Department of the Navy Security Manual for Classified Information updated.

0139

"articles 26 and 27" (page 39 lines 7-8) changed to "articles 26 and/or 27" because certification under either article is sufficient. 32 CFR 719.139 (26 F.R. 11861, 12/12/61, NOTAL) already uses "and/or".

0304e

one witness (plus party's counsel if any) sufficient instead of 2 witnesses for witnessing party's acknowledgment of having been informed of rights in court of inquiry; corresponding changes in 1101c, d and e.

0514 0604 0612

challenge and related procedure in informal boards of investigation and in formal and informal one-officer investigations clarified.

0706b

convening authority's action on injury report may be signed by direction by designated officer other than the investigating officer.

0801

current rule that investigation in injury cases is required if individual is unable to perform his duties for more than 24 hours or may claim disability benefits modified by requiring investigation also if circumstances indicate intentional self-injury.

1201d

"collisions" in line 3 changed to “incidents."

1204c

● list of pertinent records in admiralty claims cases modified.

2019b (6)

rule of nonapplicability of Military Claims Act in cases under cognizance of the Federal Tort Claims Act clarified in accordance with current practice (the rule does not extend to claims "incident to the noncombat activities" of the Navy).

2028A-C 2041e 2231

regulatons implementing 10 USC 2736 for advance payment of claims in aircraft and missile accidents.

2048 2229b

● claims under NATO status of forces and similar agreements: minor changes in accordance with DOD directives (NOTAL), incl. Sixth Fleet settlement authority for claims below $200 vice $100.

ADMISSION TO THE UNITED STATES SUPREME COURT

On the motion of Rear Admiral Robert D. Powers, USN, Deputy Judge Advocate General, five law specialists were admitted to the Supreme Court of the United States on 5 March 1962. They are CDR Walter D. Hassett, USNR; LT Glenn R. Morton, USNR; LT Robert C. Vondrasek, USNR; LT Edward T. Boywid, USN; and LCDR Hubert A. Irwin, USNR. This was the first group of officers admitted to the Supreme Court under a program recently inaugurated by the Navy-Marine Corps Junior Bar Association.

The purpose of this program is to assist Navy and Marine Corps officers in being admitted to the various federal courts located in Washington, such as the U.S. Court of Claims, the U.S. Tax Court and the Court of Military Appeals.

The Junior Bar Association will furnish the necessary information and rules governing admission to the several Washington area courts in addition to arranging for sponsors and appointments.

Law Specialists who are interested in availing themselves of this opportunity should communicate with the Secretary, Navy-Marine Corps Junior Bar Association, Office of the Judge Advocate General, Navy Department, Washington 25, D.C., well in advance of their anticipated arrival in Washington.

Rear Admiral Powers has stated that he will be happy to make the motion before the U.S. Supreme Court for admission of those lawyers who desire to become members of the highest court in the United States.

U.S. GOVERNMENT PRINTING OFFICE: 1962

The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field.

The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as the views of the individual authors, not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other Agency or Department of Government.

Invitations to submit articles are extended to all persons, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed. No compensation can be paid for articles accepted and published.

The issuance of this publication approved by the Secretary of the Navy on 6 April 1961.

REAR ADMIRAL WILLIAM C. MOTT, USN Judge Advocate General of the Navy

REAR ADMIRAL ROBERT D. POWERS, JR., USN Deputy and Assistant

Judge Advocate General of the Navy

LIEUTENANT COMMANDER FRANK J. FLYNN, USN

Editor

For sale by the Superintendent of Documents U.S. Government Printing Office, Washington 25, D.C. (Monthly). Price 15 cents (single copy). Subscription price $1.25 per year; 50 cents additional for foreign mailing.

A retired regular officer of the Marine Corps accepted employment with a chemical company on 1 February 1959. His duties required that he visit individual naval vessels and demonstrate laundry chemicals in ships' laundries. In the discharge of his duties he contacted ship supply officers, ship store officers, as well as petty officers in charge of ships' laundries. On 1 November 1960 he was promoted to operations manager in which position his new duties were to control inventories, sell to commercial laundries and dry cleaning firms, and perform other office duties. In that position he nevertheless visited naval ships from time to time, usually at the request of ships' laundry personnel, for the purpose of giving "technical assistance" in the operation of the ships' laundries and incidentally to promote his company's product. It was estimated that the retired officer concerned in his position as operations manager spent less than one percent of his working time aboard ship in direct selling activity, even including those contacts made at the request of ships' personnel. After 1 February 1962 he eliminated all contacts with the Navy and ceased to supervise any salesman making contacts with the Navy.

The Comptroller General in response to a disbursing officer's request for an advance decision upon the retired officer's entitlement to receive retired pay for the period of his employment prior to 1 February 1962 applied 10 USC 6112(b). That statute provides that a retired officer of the regular Navy or regular Marine Corps who is engaged for himself or others in selling,

or contracting or negotiating to sell any naval supplies or war materials to the Department of the Navy shall not be entitled to any payment from the United States while he is so engaged.

In applying this life-long statutory prohibition, which has no counterpart directed to retired officers of the Army or Air Force, the Comptroller General held that: Since [retired officer's] activities, including his demonstrations in his capacity of technical representative, obviously were and are designed to promote the sale of laundry chemicals of his company, there seems to be little doubt that prior to his designation as operations manager (November 1, 1960) he was subject to the provisions of the quoted statute during the period February 1, 1959, to October 31, 1960. See in that connection the case of Seastrom v. United States, Ct.Cl. No. 220-57, decided November 4, 1959, wherein the court held that plaintiff's employment as a demonstrator of drugs to naval activities subjected him to the retired pay payment restriction imposed by 10 U.S.C. 6112(b). Also, while during the period Novem ber 1, 1960, through December 1961 [retired officer] in his capacity as operations manager, may have devoted the great majority of his time to commercial sales activities, the business in which he was continuously engaged was the sale of laundry chemicals to both naval and civilian customers and he continued to some extent to contact naval vessels for the ultimate purpose of selling his employer's preducts. In such circumstances the fact that only a small amount of his time was devoted to contacting naval activities does not legally justify a conclusion by us that he was doing nothing within the scope of the statute for which retired pay is to be withheld. The statutory restriction is applicable to selling to the Navy and the statute makes no distinction between cases involving frequent contacts with the Navy and cases involving infrequent contacts with the Navy.

The Comptroller General accordingly ruled that the retired officer concerned was not entitled to receive any (Continued on page 76)

CRIMINAL JUSTICE, LIKE other human

endeavors, is experiencing major advances in the utilization of science. This specific episode of applying human knowledge to the administration of justice is a modern experience. Unlike the centuries old struggle for the legal recognition of human rights in criminal justice, science in criminal justice is only five or six decades old. Yet in that short period the importance of science in the law cannot be underestimated. Perhaps this condition results because science involves human rights. Before an adequate understanding of science in criminal justice can be developed, a preliminary study of the philosophies of science and justice is imperative. Science begins with theory, progresses through experiment and concludes with practical application. Our justice is contrary. In the Anglo-American common law system of crimjurisprudence, practical

inal

Basically, science is evidence in criminal justice. As such the two traditional legal rules governing admissibility and weight will operate. But three additional legal factors are involved: the acquisition, preservation and evaluation of evidence. All five elements must eventually harmonize to infuse effectively science into criminal justice.

ACQUISITION

THE ACQUISITION OF Scientific evidence has provided in quantity and quality the most pressing legal problems. Undoubtedly the fact that human rights are deeply involved has stimulated this reaction. In many crimes, the accused himself can be the source of much valuable scientific evidence. Can he be compelled to provide such evidence which may result in his conviction?

Is

emerges first. Historically, the court was presented with a case charging an anti-social act by the accused. The court could determine the act to be a legal wrong. So was born a common law crime. Experimentation, then, emerges as the judicial tribunals in various jurisdictions evolved different rules for similar criminal acts. The law finally forged one acceptable theory of the criminal wrong which became acceptable and established unity for society.

Justice cannot utilize theory or experimentation in science. The law must require a science tried, tested and practically applied because the law touches individuals and their practical problems. To comprehend today's legal practice in the use of practical science should permit tomorrow's legal theory and unity on science in criminal justice to evolve wisely and truthfully. This article is geared to such a purpose.

*Professor Oliver Schroeder, Jr., is Professor of Law at Western Reserve University where he is the Director of the Law-Medicine Center. He holds the rank of Commander, USNR, and is a member of U.S. Naval Reserve Law Company, 4-20. He has lectured at the School of Naval Justice and at the Gulf Coast Law Seminar for active and inactive duty law specialists. During World War II, Professor Schroeder was a Japanese Language Officer with the U.S. Navy. He is a member of the Ohio Bar and is admitted to practice before the Court of Military Appeals and the U.S. Supreme Court. Among his professional affiliations is membership in the American Bar Association and the American Academy of Forensic Sciences. He is a law editor and frequent contributor to legal periodicals.

there a violation of due process? Is the privilege of self-incrimination being defied? Is search and seizure unreasonable? Within the military jurisdiction these factors become even more significant under Art. 31 of the Uniform Code of Military Justice which requires affirmative action by the investigator to render an express warning to the suspected criminal before interrogation or investigation. It is not surprising that the largest segment of scientific evidence cases within the military jurisdiction concern acquisition of the evidence from the accused.

What can the suspect be forced to do? The cases fall into several categories: passing urine, extracting blood, collecting breath, forcing handwriting, compelling speech, exposing the body exterior, measuring physiological changes, observing mental conditions. Each of these categories provides cases for study.

PASSING URINE: The military law now appears to prohibit an accused's being ordered by a superior officer to furnish urine for chemical analysis to determine the presence of a narcotic. In U.S. v. Jordan 1 the court reversed a conviction for willfull disobedience of an order of a commanding officer to furnish the investigator with a urine specimen. The decision rested on

1. 7 USCMA 452, 22 CMR 242 (1957).