Sec. 359 Accused: Accused reads prepared statement or makes oral one. If written he signs the original and give it to the recorder to be made a part of the record. Sec. 615 Senior member: "The court will hear the opening argument of the recorder."

Sec. 421 to 424 (Recorder makes opening argument). Senior member: "The court will hear the argument of the accused."

(Counsel for accused argues.)

Senior member: "The court will hear the recorder's closing argument."

(Recorder makes closing argument or waives right to do 80.)

Sec. 617, 675 Senior member: "The trial is finished. Clear the court."

Sec. 676

Sec. 373, 425 to 435 (All except members leave. The court considers case and arrives at a finding.)

If Court Found Accused Not Guilty

Senior member signals orderly and says: "Recall the recorder."

Sec. 676 (66), 432 Senior member to recorder: "Record the following findings: The first specification not proved, and the court does, therefore, acquit the said Phineas Dilbert Quirk, seaman, U. S. Navy, of the offense specified. The second specification not proved, and the court does, therefore, acquit the said Phineas Dilbert Quirk, seaman, U. S. Navy, of the offense specified." Sec. 433, 676 (66) var. 2

(Recorder records findings and, in addition, prepares an extra copy of the findings which is signed by all members and the recorder.)

Sec. 433 (Recorder also prepares a memorandum from senior member to accused's commanding officer stating the substance of the specification.)

Senior member to recorder: "Ask the orderly to have all parties to the trial enter."

All parties enter.

Senior member to recorder: "The court is open. Recorder read the findings of the court."

Recorder reads findings.

Senior member gives orderly the extra signed copy of findings together with explanatory memorandum to accused's commanding officer and says: "Orderly, take the prisoner to the Chief Master at Arms for continued custody until released by his commanding officer. Then take these papers to the prisoner's commanding officer immediately. This court is adjourned. Recorder, please inform the convening authority the time of adjournment." Sec. 653(15)

(For procedure when court finds one specification proved and one not proved, see N. C. & B. 676 (66), 433.)

(For procedure when court finds the specifications proved in part, or when the court finds the accused guilty in a less degree than charged see N. C. & B. 429, 430, 619. If Court Found Accused Guilty

Sec. 676 and footnotes Senior member signals orderly and says: "Orderly, recall the recorder."

Senior member to recorder: "Record the following findings: The first specification proved. The second specification proved."

Recorder: "The accused has a record of previous convictions."

Senior member signals orderly and says: "Recall all parties."

Sec. 164 to 167, 620 Senior member: "The court is open. Does the recorder desire to introduce matter in aggravation?"

THE purpose of the argument or summation is

to interpret the facts as adduced by the evidence, to apply the controlling law thereto, to assist the court in determining on what side the truth lies, and to persuade and convince the court that justice requires a verdict in favor of the speaker's side. In pursuing this objective, the prosecutor and counsel for the defense are allowed wide latitude of comment, criticism and appeal. It is eminently proper that this be so, for both the public and private interest requires that the court, sworn to render a verdict solely upon the evidence, receive all legitimate aid in the exercise of their solemn function. But the right of argument is not unrestricted.

It must be exercised within the

four corners of the evidence, in order that it not become a vehicle of unfair and unethical tactics by means of which justice is miscarried. The sole purpose of this article is to point out the most common transgressions of the bounds of legitimate argument which arise in naval courts martial proceedings.

Misstatements of Law.-Perhaps the most common-and at the same time the most fatal-error occurring in arguments before naval courts martial involves misstatements of law, especially on the part of the judge advocate. Court Martial Orders have repeatedly warned that the judge advocate, as legal adviser to the court, must be meticulously careful to avoid inaccurate statements of law. While this warning is equally applicable to defense counsel, error on his part will not ordinarily be reversible. This prohibition extends to piecemeal quotations of authority, citation of overruled cases, references to the law of one juris

diction when that of another is controlling, and personal construction of legal language not supported by citable authority. Many of these errors are born of hasty and inadequate research, extemporaneous paraphrasing, faulty memory or the heat of trial. Inadvertence or even good faith in their commission does not render them the less serious.

Nor is the judge advocate privileged to remain silent on controversial legal questions in an effort to avoid these pitfalls. When in doubt, it is always advisable to use the exact words of a statute, or the latest officially reported interpretation of that statute. Isolated sentences from quotable authority are to be avoided. The principle of law involved should be given in full context to avoid incorrect implications or fragmentary understanding. In this respect, quotations from Naval Courts and Boards and Court Martial Orders as well as pertinent reported cases from civil courts, are always permissible. As to reading from standard treatises of law, recognized as authoritative, the federal rule appears to be that such practice is within the sound discretion of the court. Use of other publications, such as medical and scientific journals, is hedged with doubts and qualifications, discussion of which is beyond the scope of this article. Instances of misquoting the applicable law are to be found in C. M. O.'s 6, 1946, 234 and 321, 1919, 12; see also C. M. O.'s 2, 1949, 30; 8, 1948, 239; 11, 1947, 382; and 7, 1945, 322.

Misstatements of Facts.-Closely allied with the fault of misstating the law is the equally reprehensible practice of misstating the facts in the

argument. Counsel for both sides, in the heat of trial, and without adequate reflection or preparation, sometimes go beyond the record into the realm of fiction or manufactured evidence. While counsel is privileged to place his own interpretation and draw his own conclusions from the facts before the court, he is not free to create facts or to treat as fact matters not shown to be such by the record. Such tactics are a frequent source of reversible error even in our civil courts.

Undoubtedly the error in most cases is unintentional. In some cases, however, either through unfamiliarity with proper procedure or carelessness in preparation of the argument, counsel alludes to facts not previously before the court. Examples are references to matter contained in purported confessions previously rejected by the court as incompetent; recitation of statements of parties interviewed as prospective witnesses, but not called; testimony stricken by the court; discussion of mitigating matter found in the accused's statement; and personal knowledge of material matters derived from sources outside the courtroom. Counsel should be most careful in the preparation of an argument to confine himself to facts contained in the record, and legitimate inferences to be drawn therefrom; if necessary, an adjournment may be sought until the record is prepared for study and possible quotation.

The Canons of Ethics provide that it is not candid or fair for a lawyer knowingly to misquote the contents of a paper, the testimony of a witness, the language or argument of opposing counsel, or to assert as a fact that which has not been proved. Whether argued knowingly or unknowingly, the error has the same prejudicial effect. See C. M. O.'s 8, 1948, 239; 2, 194, 137; and Williams v. Brkln. Elev. R. Co., 26 N. E. 1048.

Abuse of Witnesses, Opposition and Accused.The Canons of Ethics provide that a lawyer should always treat adverse witnesses and suitors with fairness and due consideration; that it is indecent to allude to the personal history or peculiarities of opposing counsel; and that all personalities between counsel that cause delay and wrangling should be scrupulously avoided. In other words, counsel in the court room should be objective and dispassionate. Neither lawyer is on trial-the sole purpose of the proceedings being an impartial assessment of the guilt or innocence. of a third party.

This does not mean that a witness or accused can not be referred to in derogatory fashion if such reference is clearly supported by the testimony. It does mean, however, that baseless Islander of witnesses or the accused for the sole purpose of prejudicing the court is not permissible. Vituperation has no place in the administration of justice but tends rather to befog the issues and mislead those who sit in judgment. Above all, counsel should keep in mind that a court martial is not an arena for jousting between opposing attorneys, the outcome of which depends on the extent to which one can discredit and take advantage of the other. Petty bickering and objections designed solely to embarrass counsel and confuse the members of the court are to be avoided. While it must be admitted that the outcome of a close trial may well depend on the skill, or lack of it, of counsel's summation, such skill should be exercised within the bounds of conduct acceptable in the highest courts in the land. See N. Y. Central R. Co. v. Johnson, 279 U. S. 310, 318; C. M. O.'s 6, 1946, 218, 220; 6, 1932, 13, 14; and 317, 1919, 1.

Judge Advocate Withholding or Concealing in His Opening Argument Points on Which He Intends to Rely in His Closing Argument.-This is an abuse not often remedied by Naval Courts and Boards, section 421, which provides that the prosecution is limited in its closing argument to a discussion of matters argued by the defense. The judge advocate by silence or brevity in his opening argument may force the defense to discuss and refute any and all possible contentions on which he anticipates the prosecution will rely. This leaves the prosecutor free to select any position or positions he sees fit, with the assurance that the defense will have no opportunity to reply. The side of fairness in this situation is not without its advantages, however. A full summation of the prosecution's position in opening will enable the judge advocate, in his closing argument, to emphasize the defense's failure to meet and answer particular points. Further, if the judge advocate attempts to conceal the grounds on which he intends to rest his case, he may be met with the defense argument that his failure to develop his case must be the result of a knowledge that his arguments are weak and susceptible of a ready reply. Both strategy and fairness call for a comprehensive opening argument. See Canons of Ethics, No. 22; C. M. O. 5, 1932, 5, 7.

Assertions by Counsel of Personal Beliefs as to Guilt or Innocence of the Accused.-It is improper for the judge advocate to assert in argument his personal belief in the accused's guilt or for defense counsel to declare to the court that he believes in the accused's innocence. Such assertions, while not always reversible error, may tend unduly to sway the court whose independent judgment concernig the very matter commented on is vital to an honest verdict. See Canons of Ethics No. 15; C. M. O.'s 2, 1944, 251; 7, 1928, 9, 10.

Comment on Failure of the Accused to Take the Stand. It is specifically provided in Naval Courts and Boards that comment by the judge advocate on the failure of the accused to testify in his own behalf is highly improper. Such comment is also condemned by statute in most jurisdictions. The right of the accused to remain silent is a fundamental constitutional right, and to permit comment on this right is virtually to nullify it. This restriction extends to language which by implication and innuendo seeks to do indirectly what is forbidden directly. C. M. O.'s 10, 1946, 343; 8, 1925, 5.

Judge Advocate Appeals to Passion and Prejudice.-Perhaps the most pernicious weapon in the arsenal of the prosecutor is the appeal to the emotions. Fortunately such tactics occur infrequently in naval court martial proceedings, and are increasingly less common in civil courts. Resort to such practice is usually dictated by one or both of two considerations. The first of these arises when the facts are against the speaker. The second arises when the prosecutor has permitted himself to become involved emotionally in the case at bar and regards the outcome of the case as a personal matter. Having abandoned the calm, detached attitude of one "seeking to do justice" he injects his personal bias and prejudices into the issues and seeks to obtain a verdict by distracting attention from the controlling facts, befogging the issues, and misleading the court.

Such tactics meet with the sternest condemnation of civil courts. As was stated in Beck v. U. S., 33 F. (2) 107, 114, "A trial in the United States court is a serious effort to ascertain the truth; atmosphere should not displace evidence; passion and prejudice are not aids in ascertaining the truth, and studied efforts to arouse them cannot be countenanced; the ascertainment of the

truth, to the end that the law may be fearlessly enforced, without fear or favor, and that all men shall have a fair trial, is of greater value to society than a record for convictions."

66* *

** * *

In a leading case on the subject the court said: *Language which might be permitted to counsel in summing up a civil action cannot with propriety be used by a public prosecutor, who is a quasi-judicial officer, representing the People and presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy or resentment. By such a course, in the long run, he throws away much of his strength, because his violent and reprehensible language betrays his bias and finally weakens his influence * * *" People v. Fielding, 53 N. E. 497; see also People v. Wolfe, 76 N. E. 592; People v. Daley, 72 N. E. 244.

Miscellaneous Bad Practices.-Occasionally counsel before a naval court martial argues facts found only in the unsworn statement of the accused, C. M. O.'s 1, 1940, 59 and 4, 1935, 3; or the judge advocate makes a closing argument when the accused has waived his right to an argument, C. M. O. 3, 1944, 467; or counsel alludes in his argument to additional witnesses which he might have called to testify concerning certain material matters, C. M. O. 147, 1919, 2. Each of these practices is unfair and specifically prohibited; in any appropriate case such statements form the basis of affording the accused an opportunity to request a new trial.

Sincere lawyers may avoid many, if not all of the foregoing errors by painstaking cultivation of that attitude of detachment and objectivity befitting an officer of the court. Most errors are committed when counsel abandons the calm, dispassionate demeanor and projects his personality and feelings in the case. The Navy lawyer, whether he be judge advocate, recorder or defense counsel, serves his "client" without hope of public favor, political reward or pecuniary enrichment. Freed of such incentives there is no excuse for deliberate resort to unfair practices, condemned by sincere lawyers everywhere.

A2-week military justice seminar under spon

sorship of the Office of the Judge Advocate General recently was completed at the Great Lakes Naval Station, through the auspices of the Commandant of the Ninth Naval District, RADM J. Cary Jones, USN, and directed by the District Legal Office.

The seminar was the third such study to be conducted, and was attended by 91 Legal Reservists, including 2 WAVES, from 24 States and the District of Columbia.

Significant theme in the intensive instruction program was a thorough presentation of the proposed Uniform Code of Military Justice.

In addition to discussions on the provisions of the text of the code itself, there were several searching analyses of congressional hearings that have been conducted in order to present for the Reservists a background of the reasoning behind the development of the code in its final form.

To culminate a series of lectures on the actual mechanical provisions of the code in trial practice two moot court sessions were conducted under the UCMJ requirements. Also presented were lectures on pre-trial procedure, and the Army court-martial system by MAJ W. E. Schroeder, USA.

To round out the schedule which extended from

May 29 to June 11, lectures were presented on International Law, Habeas Corpus, Legal Assistance, Special Pleas and Motions, Admiralty, Evidence, Misconduct and Line of Duty, Tort Claims, Medical Legal Problems, and the Volunteer Reserve Law Program.

The military aspect of the training of the Reserve officer lawyer was afforded by addresses upon "Operation Crossroads" by CAPT H. B. Edgar, USN, "The Normandy Invasion" by CAPT James E. Arnold, USNR, and "The Geo-Politics and Military Potential of Russia" by MAJ R. P. MacGerrigle, USMCR.

From the reports and letters that have been received by the Office of the Judge Advocate General from Reserve officers who attended this course it is apparent that the presentation by each speaker reflected much hard work and research and held the keen interest of all attending. It was the consensus of opinion of the entire class that the program was excellently planned and carried out, and highly beneficial to those in attendance.

The outstanding success of this seminar was due primarily to the efforts of CAPT G. W. Bains, USN, District Legal officer, and his able assistants, with special mention for the many kindnesses and courtesies rendered by LCDR Sanford Olson, USNR.