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factual situation with regard to acquisition of such area, the legislative control over criminal offenses may be equally exercised by either the Federal Government or the State. The acquisition by the Federal Government of land or water areas, located within the boundaries of a State, does not, by the act of acquisition alone, divest such State of its continued criminal jurisdiction over such area acquired. "In America, the powers of sovereignty are divided between the Government of the Union, and those of the States. They are each sovereign. with respect to the objects committed to it, and neither is sovereign with respect to the objects committed to each other." McCulloch v. Maryland (4 Wheat, 316, 409).

The right of the Federal Government to acquire land for its essential uses, such as naval bases, cannot be denied or hampered by State law. This power is inherent in the sovereignty of the Government. However, if the State has not consented to the acquisition or has not, in some manner recognized by law, granted a part of its jurisdiction, then the jurisdiction of the Federal Government over such lands is limited to the exercise of those powers which are necessary and proper to the accomplishment of the purpose for which the land is to be used. It has been adjudged, "Mere ownership and occupancy by the United States of land within a State, do not suffice to oust the jurisdiction of the State, even when such occupancy is with full knowledge and tacit consent of such State." (See 7 op. Atty. Gen. 573.) The single act of acquisition of title by the United States of property located within a State is not sufficient to exclude the State's legislative authority as it affects the police power of the State. "It must appear that the State, by consent or cession, has transferred to the United States that residuum of jurisdiction which otherwise it would be free to exercise." Mason v. Tax Commission (302 U. S. 197). The subject of jurisdiction, including criminal jurisdiction, concerning military areas located within State boundaries, which areas are in Federal use by either complete ownership or by a lease for limited duration, has been the subject of both State and Federal legislation. Space does not permit the review of such legislation herein; however, an extensive study of such legislation is contained in the book entitled "The Respective Powers of the Federal and Local Governments Within Lands Owned or Occupied by the United States," written by Peter S. Twitty, and published

by the United States Government Printing Office in 1944. See also Advance Copy C. M. O. No. 2.21 February 1949, p. 13. A determination of whether there is exclusive legislative control of criminal offenses by the Federal Government or whether such legislative control may be equally exercised by both the State and the Federal Government, is helpful, and sometimes necessary, to proper naval administration in the selection of a charge on which an accused is to be tried by court martial. The acts of an accused which constitute a specific offense under AGN, may also provide a portion of the elements of a greater committed offense which greater offense is subject to court martial jurisdiction under 22 (a), AGN, on the charge of "conduct to the prejudice of good order and discipline.” The most common example that can be given by way of illustration is the offense of "assault and battery" as found in many State statutes. The jurisdiction, under applicable federal statutes, of courts martial over assaults that end in a battery is set forth in Naval Courts and Boards, sections 48 and 61, for offenses of assaulting or striking another person in the naval service, and in section 120 for offenses of assault with intent to commit a felony, assault with a dangerous weapon, and unlawful striking, beating, or wounding of another person. Applicable Federal statutes do not contain an offense of simple assault followed by a simple battery. There is no specific offense of "assault and battery" that is applicable to naval courts martial (C. M. O. 2, 1945, 39).

A simple unlawful striking by inference includes a simple unlawful assault and therefore acts which constitute simple assault and battery are subject to court martial jurisdiction under the specific offenses found in sections 48, 61, and 120, Naval Courts and Boards. Many State statutes provide for the offense of "aggravated assault and battery," which offense requires an intent to inflict grievous bodily injury. Where an accused is to be tried for the offense of "aggravated assault and battery" as defined by a State statute. and where the acts of the accused are not of a scandalous nature, the proper charge would be "conduct to the prejudice of good order and discipline,” with the charge supported by a specification alleging the accused did (1) unlawfully. maliciously, and without justifiable cause strike. (2) with intent to inflict grievous bodily injury. Such an allegation in the specification sets out a separate and distinct offense from simple striking

as specifically provided for by AGN (C. M..O. 4, 1943, 24). It is not essential to state in the specification that such offense was committed in breach of the statutory law of the State in which the court is sitting, as the court takes judicial notice of such statutory law; but where the offense is committed in breach of the laws of State A, and the court that tries the accused is sitting in State B, the enactment of State A which provides for the offense committed should be set forth verbatim in the specification and proved like any other fact (N. C. & B., sec. 27).

When an offense which is not specified in AGN is committed by a person subject to naval courts martial jurisdiction, and such acts constitute a breach of a State statute, the accused should not be tried on a charge which names the specific State statute. By way of illustration the offense of "aggravated assault and battery" as named in the State statute should not be used as a naval charge. There are several C. M. O.'s relating to the proper drafting of charges, when offenses are violations of State statutes. They hold uniformly that the charge should not be the statutory charge as provided by the State-for example, "carrying a concealed weapon" (C. M. O. 1, 1943, 57); or "burglary" (C. M. O. 2, 1945, 43)-but, instead, the naval charge of "conduct to the prejudice of good order and discipline" or "scandalous conduct tending to the destruction of good morals," respectively.

The C. M. O.'s hold that to proceed to trial on a charge as specified by the State statute is error, but that such error is not jurisdictional and does not invalidate the proceedings. (C. M. O.2.1944, 345; C. M. O. 1, 1943, 160.) A contrary rule of law has been laid down by the United States district court of Hawaii, Hubert John Mulvaney proceedings, habeas corpus No. 319, October Term (1948), wherein the court held that, where naval courts martial proceed to trial on a charge that specifically names as the charge an offense provided by the Territorial Government, the trial by court martial on such charge so specified was error: that such error was jurisdictional, and that a writ of habeas corpus will lie for the release of any accused convicted by courts martial in proceedings based on such charge.

Naval discipline requires that all naval personnel conform to the laws of the State or Territory in which such personnel may be located, and that naval personnel be prohibited from commit

ting acts of a scandalous nature regardless of the place of commitment thereof.

If proper administration requires that an offender be punished for acts committed in violation of a State statute, the charge to be preferred in court martial proceedings against the person in the naval service is that he has committed an offense against the Navy, and not an offense against the State or Territory. The specification is drawn to contain the necessary allegations of breach of the State statute, but is preferred against the accused under the naval charge of "conduct to the prejudice of good order and discipline" or "scandalous conduct tending to the destruction of good morals" depending upon the facts of the particular case.

The subject matter of the two offenses last above named are properly under the control of the Secretary of the Navy, for the purpose of maintaining naval discipline. Lawful orders and regulations have been issued by the Secretary of the Navy pertaining to such offenses under authority of 8 (1), 8 (20), and 22 (a) AGN.

From the foregoing, it is seen that the "place" of the offense is of major importance in the determination of the proper charge on which an accused shall be tried by courts martial; and in the application of article 22 (a), AGN, to offenses committed by persons in the naval service, naval authorities that have the power of convening courts martial, as well as every person in the naval service, should take note of the fact that the "place" where an offender acts, or fails to act, may determine whether a criminal offense has in fact been committed, as well as determine the proper charge on which the accused may legally be subject to courts-martial jurisdiction.

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IN

TRUTH SERUMS”

AND NAVAL JUSTICE

By Ledr. Morris G. Duchin, USN

N 1922, American law enforcement authorities first started to use "truthtelling" drugs in criminal cases to induce statements by suspects. Initially, a drug called scopolamine was injected into the subject's body. Later, other related drugs, known as sodium pentothal and sodium amytal, were used. These drugs are commonly referred to as "truth serums."1

Since 1929, paralleling the police use of drugs to obtain statements, psychiatrists have made tremendous progress in the use of sodium amytal and similar drugs to treat mental illnesses by obtaining uninhibited recitals of events from subjects. World War II brought a very great increase in the use of injections of barbiturates in acute mental illness under combat conditions, with satisfactory results. The value of the intravenous barbiturate for diagnostic purposes in the psychoneurotic and psychotic is great.2

This article will deal with the use of "truth serums" by law enforcement authorities, including investigative officers in the Navy, the admissibility of statements or confessions obtained by the application of such drugs, and the legal consequences flowing from their use. It is not intended to discourage physicians from utilizing "truth serums" when administered for their therapeutic value in mental cases. The situation is entirely different, however, when drugs are used in connection with criminal investigations and courts martial.

A "truth serum" is a drug used to obtain an uninhibited expression of repressed material by the subject. It is capable of producing a partially suspended unconsciousness in which the subject may correctly relate former experiences. It is claimed that during this unconsciousness the subject's mental activities continue, and his answers, given to questions about his past doings, are correct, or at least are truthful. The results obtained by the application of a "truth serum" and the interrogation of the subject have not been generally accepted by the psychological profession, not fol

lowed up by medical men with adequate demonstrations on a broad scale.

The X-ray can reveal to us the condition of bone beneath the flesh, invisible to ordinary vision. Psychometry, however, cannot yet reveal to us the brain conditions that correspond to a particular person's perception, recollection, and narration of a particular event. The use of the "truth serum" has been proposed for attaining the equivalent purpose. It rests upon the expedient of suppressing temporarily the normal waking consciousness and producing a narration which recites the interior record of the original perception and recollection. This expedient would not reveal errors of original perception or of original recollection (whether those errors were induced by character, emotion, or perception-mechanism). although errors due to conscious distortion or involuntary perturbation during narration would be eliminated.3

It must also be borne in mind that there is often an outpouring of both fact and fancy by the subject. In addition, some persons retain their characteristic defense even under the influence of the drug.5

What legal consequences may flow from the use in the Navy of a "truthtelling" drug to obtain a statement or confession from a suspect or an accused? What are the rights of the person receiving the drug, and what are the liabilities of the person giving the drug? To what extent, if any, is a statement or confession, included by a drug, admissible in evidence at a court martial?

The circumstances under which the "truth serum" may be applied are varying. For example. the drug may be administered to a person: (a) without his consent; or

(b) with his consent; or

(c) with his consent, but consent is induced by deception, fraud or threats.

In addition, there is the problem of what use can be made of a confession obtained by means of the "truth serum" in any of the above instances.

If an officer injects a "truthtelling" serum into the body of a serviceman, without the latter's knowledge and consent, in an attempt to elicit certain information regarding naval administration, the officer is liable for damages in a civil suit for having committed a battery upon the body of another. The law protects a person, not only against actual bodily harm and violence, but also against every kind of bodily interference and restraint not justified or excused, even though no physical harm be done, as where it offends the reasonable sense of personal dignity. The element of fear or apprehension on the part of the person given the drug is not controlling and does not determine the liability of the aggressor, for the reason that a battery may be committed upon the former even though he be in complete ignorance of the fact, and therefore entirely free from alarm. Furthermore, the degree of force applied is immaterial."

In the case of Commonwealth v. Stratton (114 Mass. 303, 19 Am. Rep. 350 (1873)), it was held that a person, who delivers to another a thing to be eaten, e. g., figs containing a "love powder," concealing such fact, is guilty of an assault and battery, if the person to whom it is given, in ignorance of the facts, eats it and is injured in health. Although this was a criminal case, and although the court referred to actual injury to the health of the complainant, the result in a civil case should be no different, even where no actual injury to health is shown, so long as the injection was made without consent.

It has been repeatedly held that a surgical operation, performed without the consent of the person operated on, constitutes a technical battery for which the surgeon may be held civilly liable, regardless of the result of the operation, except in the case of an emergency.

To avoid liability, expressed consent in writing, properly witnessed, should be obtained after an explanation of the potentialities of the use of the drug has been made to the suspect. Consent should be gained without the suggestion of duress, and under the same safeguards as those surrounding the obtaining of voluntary confessions generally. If consent is withheld, but the drug is nevertheless administered, the person doing so is in the same position as one who has performed an operation without the consent of the patient.

The liability for a battery may be criminal, as well as civil. The fact that a battery is committed

in an attempt to obtain a confession from a person suspected of crime is no defense to a criminal prosecution therefor.10 In many States, the extracting of involuntary confessions is penalized by statutes, which would also provide an additional basis for civil or criminal action." Any person, whether a doctor or not, who administers the drug at the request of the prosecuting authorities for the purpose of obtaining an involuntary confession, is a participant in their act, and shares in their responsibility. In addition, a doctor runs the risk of having his license revoked.12

Of course, where consent to the use of the drug has been obtained from the suspect, after an explanation of its use and purpose, there is no civil liability, nor any criminal liability since no breach of the peace is involved.13

Where consent has been obtained through misrepresentation as to the nature of the drug injected, such consent would be equivalent to nonconsent, since fraud or deceit upon one's will is the same as force in overpowering it.14

Although words or threats alone cannot constitute an assault, as distinguished from a battery, that is, putting another in apprehension of an immediate harmful or offensive contact.15 Nevertheless, words and threats may be of such a nature, and made under such circumstances, as to be considered to have vitiated any claimed assent. To sustain a defense of consent, there must be a true assent. A claimed assent which is not voluntary is not sufficient.16

Does a naval officer, by reason of his office, enjoy any privilege insofar as his personal liability to subordinates or other members of the service is concerned? As a general rule, an officer is not liable for the necessary and justifiable acts performed to maintain discipline. He is liable for acting in an illegal and unauthorized manner.

In 36 Am. Jur., Military, sec. 119, it is stated:

Actions of trespass for injuries to the person have been frequently brought and sustained in the common-law courts against naval as well as military commanders, by their subordinates, for acts done both at home and abroad, under pretense and color of naval and military discipline."

Although no case has been found which precisely holds that an officer would be liable for using the "truth serum" on a person without the latter's consent, it would seem that an officer would be in no different position from a civilian. The injection of the drug, without consent, is (Continued on page 14)

LAWYERS OF THE FIRST NAVAL

DISTRICT LEGAL OFFICE

LTHOUGH the First Naval District includes

AL

all of New England except for the State of Connecticut, almost all of the legal matters and functions arise and are disposed of within a radius of 100 miles of Boston. There are four major centers of naval activity within the district, namely, The Greater Boston area, Newport, R. I.. Quonset Point, R. I.. and Portsmouth, N. H. Besides district headquarters in Boston, law billets are included in the officer allowances of the United States naval base at Newport and the United States Naval Air Station at Quonset Point. There are five officer lawyers (SDO) and

one civilian attorney presently on duty at headquarters and one officer lawyer (SDO) at each of the other two activities.

Military law is the largest source of business of the legal offices and it is estimated that it comprises from 50 to 60 percent of the total business. Claims under the Federal Tort Claims Act, admiralty, legal assistance, and Naval Reserve matters combined comprise slightly less than 50 percent of the total. At headquarters, two officers are assigned as judge advocate and defense counsel of the general court martial, and devote their entire time to such duties. The civilian attorney's time

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