have been brought into the case against their will, and they do not enjoy the prospect of going into court. Some of them, particularly the younger ones, will feel that testifying in court is only a high-grade form of "snitching" on a fellow man. The other 5 percent will be comprised of those who have been personally injured by the accused in the course of the offense for which the man is being tried, and therefore seek retribution; and those intense idealists who have a strong sense of duty and volunteered their testimony for the betterment of the Navy. Some of these latter may dramatize their positions a trifle, but a little caution will prevent this fact from causing too much damage.

None of them, it is quite safe to say, will know the elements of the offense, and therefore will not know what facts must be proven by the prosecution or by the defense to sustain their respective contentions. Some of your witnesses will have their knowledge at second hand, and will have heard it repeated so often that they now consider it entirely valid as a matter of personal belief. Others will have a marked tendency to offer opinion based upon deduction from known facts, inferences and barest suspicions. While it is entirely probable that the court after listening to his testimony will arrive at the same opinion, witnesses should be cautioned to avoid stating their own opinions and to stick to the facts alone. The vast majority of witnesses will be very sure of their facts, but will assume that counsel will know exactly what questions to ask to bring the information properly into court. Unfortunately, this last group is being deluded. There are all too many lawyers who do not know what questions to ask, either on direct examination or cross examination.

Now we can get to that definition of "coaching." Proper coaching should consist, primarily, in the complete disclosure to prospective witnesses of the offense charged against the accused, and all the material facts alleged in each specification. If necessary, the legal language employed in the specifications should be simplified so that the witnesses will understand clearly what you are talking about. It should consist, also, in a brief but very strongly worded review of the necessity for the punishment of offenders against our naval community for the protection of the members of that community. In equally strong words should be given the warning that the accused, too, is a member of the community and is entitled to every

shield which the law affords him, against improper and unlawful accusation and conviction. Witnesses should then be advised of the distinction between personal, direct, knowledge and the type of "knowledge" they have acquired by hearsay, or second hand. Only after these preliminaries have been completed should the witnesses be asked to state what they know about the case. This will be the most tedious portion of your session with witnesses, but it will prevent the actual trial from becoming tedious if you handle your questioning properly at this preliminary stage. Reiterate your questions as though you were cross examining; test the facts from every possible angle. Have your witnesses go over the facts repeatedly, checking them for weaknesses and uncertainty. When you have determined to your own satisfaction that the witness has disclosed all the facts which he knows, it is your ball again with goal to go.

Your witness now knows what information you want him to give to the court when he takes the witness stand, and he realizes that he has information which may well determine the outcome of the case. He is impressed with his personal responsibility to the naval community and with the necessity for telling only matters within his personal knowledge. You must not now neglect to give him the feeling of confidence which will enable him to go into court and tell his story so simply and truthfully that it will withstand the most searching cross examination. He will not have complete confidence unless you now tell him exactly what questions you will ask in order to bring out the information which he possesses and is willing to give.

The questions should be asked, and answers given by the witness, several times so that the witness may become familiar with your manner of asking questions and so that you, as counsel, may have a final check on the answers. If the witness at this point abandons fact, voices his opinions, indulges in hearsay or tends to ramble all over the lot you will have an opportunity to stop him and caution him. At no time should your instruction of the witness, your interruptions or sugestions, amount to suggesting factual matter not within the clear knowledge of the witness. In your contacts with witnesses scrupulous care must be exercised to avoid transmitting your own ideas. or the ideas of any other witnesses. Your instructions should be limited, where factual matter is

concerned, to how to say the facts within the knowledge of the witness, and not what to say.

To obvious "catch" to this procedure is that it requires thorough knowledge of the elements of the offense charged, of the rules of evidence and of trial procedure. This should be of little concern to naval officers, however, since even without this article they are required to and presumed to know all these things. Nevertheless, careful study on the part of all readers is sincerely recommended, to the end that you may make your required duties as legally valuable in actuality as they are in theory. Assumptions that knowledge is, in fact, possessed by our naval officers serve their purpose admirably until actual use of that knowledge is

required. Then assumptions will do well to turn

into realities if justice is to be achieved.

A word of warning will do no harm here. There may be some unworthy souls among our readers who have a slight strain of shyster blood in them and who see in this article a means of accomplishing, by extension of the method, an unworthy purpose. To them we can only say that the testimony of a properly instructed witness is clearly identifiable as such, even from the printed page of a record of proceedings. Similarly, the testimony of a "shyster-coached" witness bears all its own peculiar trademarks and is easily detected all along the line. The Navy does not look with complacency on such incidents.

ASSISTS JAG

MANY Naval Reserve officers, who are not on

active duty, have assisted in gathering evidence for the prosecution of war criminals. This program, referred to in BuPers Letter Pers1D10-be-decl, serial 5226, dated 23 November 1948, resulted from proposals by the Office of the Judge Advocate General.

These officers aided the War Crimes Branch in its primary function of obtaining the testimony of former Navy and Marine Corps prisoners of war, many of whom have been separated from the service or are assigned to duty at points where no officer-lawyer on active duty is available. Since it is the responsibility of this office to furnish all obtainable evidence to the various War Crimes Trial agencies, it was decided to call upon the Naval Reserve for help in reaching inaccessible witnesses.

Several Reserve officer-lawyers already have received orders for such work since the inauguration of the program. These officers are issued Appropriate Duty Orders, with pay, by District Commandants when requested by the Judge Advocate General. At the same time War Crimes Branch sent the officers detailed instructions and practical

suggestions for most effective procedure. Those suggestions, which apply to all interviews of former prisoners of war, have been developed by an experienced lawyer-officer after 9 months of such duty. They were designed to bring out all possible facts and details.

It must be realized that the procedure followed in obtaining this "War Crimes" evidence is not in accordance with instructions laid down in Naval Courts and Boards for the taking of depositions. We were dealing with witnesses whose minds, in many instances, were fogged by beatings, starvation, insufficient clothing, mistreatment and torture of all sorts, and most of all by the desire to forget the terrible ordeals they had undergone.

Often the former prisoners of war did not want to talk about their experiences. It was necessary to exercise the highest degree of tact, patience, sympathy, and understanding when interviewing them. The witnesses actually did not remember many facts that we might think should be unforgettable. On one occasion, a witness could not recall a single fact about his imprisonment and treatment. He could not even remember the names of his fellow prisoners or the enemy

guards. Finally the key thought was found when he was casually asked, "What were your barracks like?" Soon he was talking of the arrangement of the bunks. He remembered who slept on either side of him, who bunked just inside the door. One thought led to another and he was able to recall various persons and happenings. He told of the lack of food, of beatings, and other mistreatment that occurred. From this we were able to develop a rather complete picture, thereby corroborating other testimony we had taken.

With help the witness will frequently find the thread leading to the latch string that opens the door of forgotten memory. We must open that door. Our first effort should be put the witness at ease. A short, friendly discussion of the general over-all picture will usually accomplish that purpose. He will begin to talk about various incidents, places, and people. Careful notes should be taken as he talks. We must let him ramble on, but note the details he overlooks so we can bring them out by later questions. We must keep in mind that we are trying to establish the corpus delicti of an offense which was committed by a certain individual against another individual at a definite place, on a particular day, in a certain prescribed manner and using a definitely described weapon or instrument.

While the rules of evidence have been relaxed somewhat in the War Crimes Courts, we have insisted that Navy testimony must be the best we can obtain. We could not submit testimony that showed on its face that it was incomplete, or that the witness probably had more information than we obtained from him. Whether the witness was a civilian or a soldier, sailor or Marine, and regardless of nationality, all his information had to be fully exhausted. Each witness had some knowledge of instances of improper treatment of a prisoner of war similar to the following:

Murder or killing without justifiable cause. Beating, clubbing, whipping, striking, kicking, slapping, etc.

Inhumane treatment, either as punishment or otherwise.

Needles forced into prisoners' flesh.
Pencils driven under fingernails.
Pads applied to flesh and ignited.
Medical experiments.

Insufficient food-deprivation of meals as punishment or otherwise.

Food unfit for consumption.

Theft of food, cigarettes, clothing, etc. from Red Cross parcels intended for the POW's. Inadequate clothing to protect from either cold or heat.

Inadequate or improper housing for POW's. Unhealthy, filthy, etc. conditions of barracks or quarters.

Experienced officers have found that these former prisoners of war actually do have extreme difficulty in recalling even general circumstances, to say nothing of minute details, and frequently they secretly resent being urged or even asked to talk of their experiences. However, with careful, patient and tactful discussion (rather than questioning) their memories quite often will clear sufficiently so that worth while testimony is produced.

All essential facts of each alleged offense must be developed. The following points were covered in detail:

(1) Camp Commander (name, nickname, or description).

(2) Who (victim, and accused must be identified):

(a) Victim: Name, nickname, or descrip

tion.

(b) Accused: Name, nickname, or descrip

tion.

(c) Witnesses: Names, nicknames, or de

scription.

(3) What (incident and instruments, etc.):

(a) What happened (struck on head, knocked unconscious, fell to ground, etc.).

(b) Instrument (club, sledge hammer, needles, weather, hose, water, etc.).

(4) When (approximate date as "about June 1943").

(5) Where: Location in detail.

(a) Which POW camp or other place.
(b) Which part of camp, mine, etc.

(6) How: Describe the incident in detail telling just how it happened.

(7) Why: What occurrence, if any, did the accused use as an excuse for the attack. Although the War Crimes trials all are nearly terminated, Reserve Officers may yet be called upon to assist in procuring affidavits for this final phase. In the event of assignment to duty for this purpose, the experiences related above should help in securing pertinent information.

The finished document-the signed and sworn

statement-should be in narrative form as distinguished from the question and answer form of the usual deposition. A Specimen War Crimes

Affidavit has been prepared by the "War Crimes Branch" of the JAG Office. Copies may be had by addressing a request to the head of that branch.

To insure accuracy in reporting what recordings

and films will be available for use at law unit meetings we have delayed until this month the printing of the suggested programs for the second half-year of unit activity.

The recordings and films listed below all will be available as of the date of this issue of the JAG Journal. The programs may be varied to suit the needs of the individual units or may be disregarded entirely. They are set forth here as an indication of what materials are available for the asking. District Directors of Naval Reserves will assist you in obtaining such materials.

7. (a) Introduction by Commanding Officer. (b) Lecture (15') on Correspondence Course "Foundation of National

Power." The text used is issued by the Center on custody receipt. (c) 16-mm. film (17′) on "This is AmericaGuam, Salvaged Island" (MC2242G).

(d) JAG Office Disc Record (21′) on “General Law Division (Tax Branch)."

(e) Discussion of Recording. 8. (a) Introduction by Commanding Officer. (b) Lecture (15') on Correspondence Course "International Law" (enrollment for advanced course at Naval War College, Newport, R. I. required). (c) 16-mm. film (37′) on "Solomon Islands" (MH-2040).

(d) JAG Office Disc Record (25′) “General Law Division (Claims Branch)."

(e) Discussion of Recording. 9. (a) Introduction by Commanding Officer. (b) Lecture (15') on Correspondence Course "Communications." Books required: The Communication Officer (Nav Pers 16101); Communication Instructions, 1944 (DNC 5); Manual of Naval Correspondence (Weatherford, McGraw-Hill Book Co.). All are issued on custody receipt by the Center.

(c) 16-mm. film (25′) on "Fighting Men-
By Your Command" (MA-2366N).
(d) JAG Office Disc Record (25′) on “Mili-
tary Law Division (Courts of Inquiry
and Boards of Investigation
Branch)."

(e) Discussion of Recording.

10. (a) Introduction by Commanding Officer.
(b) 16-mm. film (53′) on "Venereal Disease
Control in the U. S. Navy-Story of
the D. E. 733" (MN-2454E).

(c) JAG Office Disc Record (24′) on "Mili-
tary Law Division (Retiring and Ex-
amining Boards Review Branch).”
(d) Discussion of Recording.

11. (a) Introduction by Commanding Officer.
(b) 16 mm. film (60′) on “Black Sea Fight-
ing" (ME-1940).

(c) JAG Office Disc Record (23') on the "Navy Law Manual."

(d) Discussion of Recording.

12. (a) Introduction by Commanding Officer. (b) Lecture (15') on Correspondence Course "Elementary Nuclear Physics" (Atom Bomb). Based on the "Atomic Bomb Test Extra" of the ALL HANDS issue of July, 1946, and on "Applied Nuclear Physics" by Pollard and Davidson. It is hoped that this course will give sufficient foundation in the principles of atomic physics to permit the student to face with greater comprehension the problems which will arise in the wake of the atomic bomb. Reference material is issued by the Center on custody receipt.

(c) 16-mm. film (19') on "To the Shores of Iwo Jima" (MN-5124).

(d) JAG Office Disc Record (25') on "Security."

(e) Discussion of Recording.

16

U. S. GOVERNMENT PRINTING OFFICE: 1941