LCDR W. A. Stevens, Executive Officer, USS Robert K. Huntington (DD 781).

LCDR J. K. Taussig, Administrative Aide to Commander, Naval Bases, 14th Naval District. LCDR T. H. Taylor, Navigating Officer, USS Macon (CA 132).

LT W. A. Savage, to Commander, Air Force, Pacific Fleet, for further assignment.

LT E. R. Schwass, Aide and Flag Secretary to Commander, First Task Fleet.

Marine Corps graduates retained in the JAG Office: Lt Col G. M. Lhamon, Maj O. V. Bergren, Maj W. C. Chamberlin, Maj M. C. Goodpasture, Maj W. P. Oliver, Capt C. H. LeClaire and Capt J. P. O'Laughlin.

IT

VOIR DIRE

By Major H. T. Marshall, USMC

T is not the intention of the writer to point out a way for guilty persons to escape the proper consequences of their unlawful acts. Such a result, however, is better than that one innocent person be convicted improperly.

The clearly enunciated rule in naval courts martial is that the prosecution must establish the voluntary nature of an extrajudicial confession before a court martial may legally receive it in evidence (C. M. O. 2, 1947, 26). In carrying this burden, the judge advocate usually offers several witnesses who were present at the time of the taking of the confession. The witnesses are asked a series of more or less stereotyped questions to which they almost invariably give the expected answers. The prosecution establishes the basis for having the confession admitted, and the defense must take action or consider the case practically lost at that point.

Knowledge of the factors indicative of the involuntary nature of the confession is usually most firmly fixed in the mind of one person-the accused. His testimony relative to these factors is vital to the defense, and it must be obtained if the defense is to have any hope of success. Such testimony is valuable for its effect in rebuttal and for its use as a basis of attack on the testimony of the prosecution's witnesses. The problem facing counsel for the defense is to determine how to proceed. Putting the accused on the stand as a rebuttal witness is an answer, but it is dangerous. Cross-examination by the judge advocate, if not

unguarded statements by the accused on direct. examination, may well embarrass the defense to a considerable degree. The defense is over a barrel. If they do not answer the prosecution witnesses on the question of voluntariness, the case is lost; if they try to answer, the accused may well be trapped into ruining the defense. In either case, the defense hands the prosecution a neatly wrapped conviction. It is contrary to our most fundamental concepts of justice that the accused should be forced into such a predicament, but the situation arises all too frequently in courts martial.

In finding a solution to the problem there is one important factor to be borne in mind. Naval courts martial are in accord with one line of authorities on the question of the effect of involuntariness on confessions in holding that an involuntary confession is inadmissible and must not go to the jury. The proceedings by which a court determines the voluntary nature of a confession are, therefore, collateral to the main issue, and the evidence adduced on this collateral issue should not be before the court when it makes its ultimate decision on the primary issue. (85 A. L. R. 870; 20 Am. Jur., Evidence, sec. 532 and ff.)

The problem of the defense becomes, then, one of method. The requirement is a manner of presenting evidence relative to the collateral issue so as to preclude its consideration with respect to the main issue. In civilian trials, a device frequently used is the presentation of such evidence to the judge in the absence of the jury. Such procedure being manifestly impossible in a court martial, other means must be found to achieve the same end.

There is a method that has been allowed and, in fact, expressly approved for use in courts martial. The procedure is to call the accused, or such other witnesses as may be desired, to the stand and have them sworn on their voir dire. The effect is to swear the witness solely as to the collateral matter and not as to the general issue. It is true that Naval Courts and Boards, appendix E, 5 (f), indicates that the voir dire oath is not intended for use in such collateral proceedings. The use was, however, expressly approved in C. M. O. 11, 1932, 6. In addition, this procedure has been used in several recent cases and such use has evoked no adverse comment when the cases were reviewed. The use of voir dire has, therefore, official sanction.

The advantages of this method are several. The fact that the witness is sworn specially, rather than by the general oath or affirmation, should serve as a sort of warning to the members of the court that the testimony is offered solely for the limited purpose of showing the admissibility or non-admissibility of proffered evidence, and that such testimony is entitled to no evidential weight with respect to the central issue. Moreover, if it were to appear that the evidence needed to sustain a conviction was legally insufficient, except for evidence adduced by the prosecution from witnesses sworn on their voir dire as to the collateral issue, it is probable that such conviction would. have to be set aside on review.

Since this device appears to offer substantial benefit, further examination into its exact nature appears in order. The form of oath on voir dire where investigation goes to the competency of a member of the court or of a witness is set out in Naval Courts and Boards, appendix E, 5 (f). Obviously, that exact form is not appropriate, but it is not difficult to frame a suitable modification, such as:

"You, D- E. F-, swear (or affirm) that you will true answers make to questions touching the circumstances surrounding the statement made by (the accused)."

Any form that limits the questions and answers to the narrow issue while assuring truthfulness would seem to be satisfactory. The oath, if it is to serve its purpose, must, however, limit the scope of examination to the specific collateral issue.

The proceedings under oath on voir dire must likewise be limited as is the oath. If examination and cross-examination are not confined strictly to the collateral issue, the very ills sought to be avoided will be thrust once more on the party offering testimony by the witness so sworn. Thus, questions going to the truth or falsity (credibility) of the confession should be met with objection.

There is, therefore, a solution to the difficult situation in which the defense, and indeed on occasion the prosecution, finds itself. It is simple. and it overcomes, as much as possible, the inability of courts martial to hear evidence on a collateral matter out of the presence of the trier of facts.

THE

(Concluded from June 1949) HERE is a good illustration in C. M. O. 12, 1948, 333, of the incessant desire on the part of pleaders in the naval service to accommodate indecorum and indiscretion under the serious charge discussed herein. The specification under the charge alleged that the accused, at a certain commissioned officers' mess, followed a named officer's wife into the ladies' lounge, thereby exhibiting a disregard of his obligations as an officer and a gentleman. The accused made timely objection to the specification on the ground that it failed to allege an offense. The court overruled the objection and proceeded with the trial to a conviction.

The reviewing officer of this case in the office of the Judge Advocate General recalled the wise statement by De Hart, in Practice of Courts Martial, p. 374, which well merits repeating: That "when deliberating upon a charge of 'conduct unbecoming an officer and a gentleman,' some officers, members of the court, who might be impressed with very high notions of personal and professional honor, or possessing a very refined and

delicate perception of the proprieties which should distinguish the gentleman, would, without strictly regarding the intention or consequences of the law in question, pronounce a verdict of guilty, when in reality no legal offense had been committed." The Navy Department therefore held that the specification did not allege an offense in violation of any law, regulation, or custom of the service; that the act mentioned in the specification was not an offense malum per se; and that under certain circumstances an officer might follow another officer's wife into a ladies' lounge with perfect propriety and for some innocent purpose. The proceedings and findings were, accordingly, set aside.

The serious consequences of conviction under the charge have, therefore, limited its scope. Whereas section 99, N. C. & B. still mentions acts of indecorum as constitutive of conduct unbecoming an officer and a gentleman, liberal interpretations of the Navy Department have, in effect. repealed those provisions of the substantive law.

Indecent acts are properly chargeable under conduct unbecoming an officer and a gentleman. It is

true that the bulk of indecent acts and acts of a scandalous nature are described, provided for or indicated to be preferred under the general charge of scandalous conduct tending to the destruction of good morals (N. C. & B. Sec. 59; Art. 8, A. G. N. Par. 1); but it is hard to conceive of any act which gives offense to the conscience or moral feeling; calls out condemnation; involves scandal or disgrace to reputation; brings shame or infamy; or because of its evil nature is malum in se (N. C. & B. Sec. 26) that is not also in the case of an officer, one dishonoring or disgracing the individual as an officer and a gentleman. In this, indecency differs from mere indecorum.

It must be remembered that the original charge was predicated on "scandalous, infamous behavior." For this reason, for an officer to commit an act of a scandalous nature is unofficerlike and ungentlemanly, and in the various instances throughout Naval Courts and Boards where scandalous conduct tending to the destruction of good morals is given as the appropriate charge or appropriate lesser included offense for acts involving indecency, conduct unbecoming an officer and a gentleman would be an equally appropriate charge, if an officer is the accused. Accordingly, the offenses indicated in sample specifications 8 through 18 Sec. 95, N. C. & B., if committed. by an officer, could properly be charged under conduct unbecoming an officer and a gentleman. Similarly, conduct unbecoming an officer and a gentleman is considered by the writer an appropriate lesser included offense of the crimes of sodomy, rape, carnal knowledge, polygamy, unlawful cohabitation, adultery, and fornication, if and when committed by an officer.

Perhaps the most controversial of the indecent acts, because of the frequency with which acts of indecorum might be mistaken therefor, is the "indecent assault." An indecent assault consists of the act of a male person taking indecent liberties with the person of a female; or fondling her in a lewd and lascivious manner without her consent and against her will, but with no intent to commit the crime of rape. Generally, shame or other disagreeable emotion of the part of the female is important in determining whether an aggravated or indecent assault was committed. 1917 A, 140, 142.)

(L. R. A.

The Navy Department had occasion to study, analyze and apply the law relative to indecent assaults in a recent case, to be published soon. This

officer was charged with rape, assault with intent to commit rape, and conduct unbecoming an officer and a gentleman, for an indecent assault allegedly perpetrated on the body and person of a baby sitter engaged by him. Upon trial, he was acquitted of the first two charges. As to the last, the specification thereunder was found proved in part, all allegations as to force and lack of consent. having been excepted. The specification as found proved substantially alleged that the accused, upon returning the baby sitter to her home, stopped his car at the side of the road, and did caress and kiss the baby sitter, therein and thereby exhibiting a disregard of his obligations as an officer and a gentleman. It was held that an indecent assault in the case in question (the prosecutrix was a high school student in her senior year, 17 years of age), could only have taken place provided it was against the will of the victim. The act of caressing and kissing the baby sitter, not against her will and under the circumstances, was regarded as a mere indiscretion not chargeable under conduct unbecoming an officer and a gentleman nor under any other charge.

Had the victim in the above case been of tender years, proof of resistance or lack of consent would have been unnecessary to establish an indecent assault. Girls of tender years, without knowledge or experience of the enormity of outrages of this nature, having no proper appreciation of the injury an assault of this kind might cause to their person and their position in society, cannot be expected to make resistance of any kind or to indicate unwillingness. Beausoleil v. U. S. (107 F. (2d) 292); People ex. rel. Engel v. Justices (18 Hun. N. Y. 330, 332). Needless to say, conviction under the charge of conduct unbecoming an officer and a gentleman would be proper under such circumstances.

A point has been reached where it can be safely stated that acts of mere indecorum are, perhaps, ungentlemanly and unofficerlike, but do not warrant conviction under the charge of conduct unbecoming an officer and a gentleman; nor, for that matter, under any other charge unless they are attended by a violation of law, regulation, or custom of the service. Indecent acts, of whatever nature, and more particularly those enumerated as scandalous in nature (supra) would be, if malum in se or malum prohibitum, cognizable under the charge of conduct unbecoming an officer and a gentleman.

Promotion of Naval Reserve Officers
NRMAL No. 15-49, providing for the promo-

* * *

tion of Naval Reserve officers, has recently been issued, and is quoted in part. Selection Boards to consider officers in the promotion zones are to be convened as follows:

(a) LCDR-line-1 June 1949. (b) LT-line-20 June 1949.

(c) LTJG-line-5 Sept 1949 (approximate). (d) LCDR & LT-staff corps-1 June 1949. (e) LTJG-staff corps-5 Sept 1949 (approximate).

Selection boards will not be convened to consider the following promotions:

(a) Captain to rear admiral-no vacancy exists.

(b) Commander to captain-those officers in the selection zone were previously selected as captains and are now being appointed as their USN running mates are promoted.

(c) Ensign to lieutenant (junior grade)-Ensigns will not be required to undergo selection but upon completing three years of commissioned service will become eligible for promotion to lieutenant (junior grade).

Lieutenant-commanders, lieutenants, and lieutenants (junior grade) under consideration for promotion will be Reserve officers whose USN contemporaries are in the promotion zone. This year those zones include all officers whose dates of rank are prior to the following dates and also the more senior officers whose dates of rank are on the dates listed:

(a) LCDR March 15 1944. (b) LT July 1 1944.

(c) LTJG July 1 1945.

from the Naval Reserve those officers whose records indicate that their discharge is advisable in the best interests of the Naval Service.

Written promotion examinations will not be required and the selection boards listed above will be constituted as Naval Examining Boards for the purpose of examining officers on their records.

The membership and proceedings of selection boards shall be as specified in article H-3401 of the Bureau of Naval Personnel Manual, except that at least 50 percent of the members of each selection board shall be Naval Reserve officers if practicable.

Retirement Point Credit

BuPers 1tr 1D10-be Serial F: 794 dated 5 May 1949 states that the crediting of retirement points is confined to items listed in paragraph 2 of NRMAL 54-48 and must be for duty or training sponsored by and under the supervision of the Navy, or for duty or training in an approved joint service program. No credit may be given for any activity sponsored by or under the control of civilian activities or organizations such as attendance at meetings of civilian organizations, veterans organizations, conventions of various kinds and classroom instruction offered by various educational institutions.

Activities of Volunteer Law Units

VLU 12-4 (San Francisco-Oakland) met on 9 February and 9 March to hear CDR T. R. Vogeley, USN, Executive Officer of the Naval Station, Treasure Island, and CAPT Minor C. Heine, USN, District Intelligence Officer, respectively. CDR Vogeley spoke about his experiences in the Antarctic regions while on "Operations Highjump" and CAPT Heine gave an informative talk concerning the activities of Naval Intelligence. The next meeting will be held at Treasure Island on 13 April, with CAPT R. W. Truitt, ChC, USN, District Chaplain, as the speaker of the evening; 12-4 will commence meeting twice monthly at that time. Each meeting will qualify for a point on retirement but one meeting each month will present a "general interest" speaker of high caliber as in the past.

U. S. GOVERNMENT PRINTING OFFICE. 1949