Published monthly by the Judge Advocate General of the Navy in the interest of true justice. The mission of the JAG JOURNAL is to promote legal forehandedness among naval personnel charged with the administration of naval law. The goal to be attained through this unofficial medium of instruction and review for those untrained or trained in law is the clear understanding of the basic laws governing Navy life and of the rights and obligations of naval personnel.

The editorial policy has been established as one of informality, to insure that articles are presented in interesting form. Its pages are citable in Navy judicial proceedings and will be accorded such weight as the respective courts may determine, when unsupported by official re ports of cases referred to therein. Court Martial Orders and opinions of the Judge Advocate General remain as the Navy's official sources of precedent, binding upon courts as such.

Views on controversial topics expressed herein by individual authors must be construed as being their own personal views, not necessarily bearing the endorsement or approval of the Navy Department or of the Judge Advocate General.

The printing of this publication has been approved by the Director of the Bureau of the Budget, 13 July 1948.

RADM. G. L. RUSSELL, USN
Judge Advocate General of the Navy

CAPT. E. E. WOODS, USN

Assistant Judge Advocate General of the Navy

COMDR. T. F. RYAN, USNR Editor

LCDR. G. H. ROOD, USN Associate Editor

For sale by the Superintendent of Documents,

U. S. Government Printing Office, Washington 25, D. C.

Price 10 cents, $1.00 per year, $1.35 Foreign

READERS' CORNER

ON HUNTING TRIPS, in years past, it was a

hard and fast rule of the camp that everyone contributed part of his game to the mulligan that simmered all day and night on top of the cherryred Round Oak stove. It was the same with firewood-nobody ever walked in the door of the cabin empty-handed. There are a few readers who take the same helpful attitude toward the JAG JOURNAL, and we wish there were many more who believe in contributing their bit, for the good of all.

For well over a year we have carried on an interesting, if sporadic, correspondence with a reader whose letters were postmarked, successively, from Seoul, Tokyo, and Yokohama, and now come from Bangkok, where he practices law in partnership with a Siamese princess. Our reader, Albert Lyman, is a member of the District of Columbia bar who, after wartime service as a yeoman, became a civilian employee of the Allied Military Government and reviewed the records of war crimes trials at Yokohama. His latest letter, written from Bangkok, enclosed a lengthy report to our readers of Mr. Lyman's impressions of the war crimes trials he observed or reviewed.

He expressed the hope that his contribution would be of interest to all our readers, as well as the many Regular and Reserve officers who participated in the trials. Many of the cases brought to justice Japanese soldiers and civilians who abused and maltreated officers and men of the Navy who were their prisoners.

We regret that space does not permit our publishing his report in full, but our cooking pot is small and Mr. Lyman has contributed a whole carcass. We are forwarding his report to the American Bar Association Journal as an article. which should be of wide interest, but have hacked off a few steaks for local consumption.

Mr. Lyman reports that he, like many other lawyers who took part in the various phases of the trials, was surprised and a little alarmed, at first, at the absence of certain trial procedures, designed to protect the rights of the accused, that we in this country and particularly in the Navy have come to regard as inalienable.

In our courts, for example, we do not admit into evidence affidavits, for the reason that they are completely one-sided. They give the opposition

no chance to cross-examine and the court no opportunity to judge, by observing his demeanor, the affiant's credibility. Moreover, to admit them would violate our constitutional right to be confronted by our accusers. We have similar aversion to documentary evidence that is not identified or authenticated according to our own hard and fast procedures.

Other nations of the civilized world, however, do permit the introduction of affidavits and of meagerly (by our standards) authenticated records. They believe, too, that a fugitive from justice can be tried, in absentia, for his crimes, although we do not. And there is nothing incongruous, in the courts of other lands, in conducting a single trial in which forty or fifty defendants are tried on multiple and often totally unrelated charges.

His first fears were soon allayed, he says, because it was readily apparent that everyone was leaning over backward to insure fair, just trials. The term "everyone", upon scrutiny, is very broad. It included those engaged in securing affidavits and compiling and preparing records from official sources, here and in other countries. (The Judge Advocate General of the Navy set up in his office a War Crimes Branch, the staff of which patiently searched out, and took affidavits from, Navy and Marine personnel, and prepared documentary evidence from official Navy records.) It included the prosecution staff, if only for no more commendable reason than that it recognized the sheer inutility of presenting unbelievable affidavits or contradictory documents. Defense counsel, he observed, made the most of these divergent procedures when they argued their cases.

He noted that courts, too, leaned over backward in guaranteeing that the solemn processes of law did not turn into a field day for Hate. They accepted these innovations for what they were fairly worth-sometimes at face value, sometimes at far below par. Specifications were often stricken during trial, on motion of the defense; many were "nolle prossed" by prosecutors; and the courts many times entered findings of "not guilty", at the close of the prosecution's case.

Last of all came the reviewers, civilian and military, and here again the patient, skilled legal review by trained lawyers paid tribute to Justice.

We conclude, from Mr. Lyman's report, that the War Crimes trials were a prime opportunity to let injustice run rampant and help settle our score

with our defeated enemy, which we resisted with all our strength and at a tremendous cost in dollars.

That we did resist, that we were able to give objectively fair trials to our enemies, surely must have given us further prestige in the community of nations. Being a legal publication, we should like to claim that the law was the prime factor that caused us to lean over backward in being fair. We suspect, however, that characteristic, ingrown American principles made our representatives at the trials apply the law when, perhaps, they would rather have junked it.

IS THAT A FACT?

COURTS

By LCDR C. Craig Smith, USN OURTS are required every day to accomplish a feat that metaphysicians concede is virtually impossible-distinguishing facts from opinions. But the courts, like the bumblebee's reputed attitude toward the theory of flight, are not always fully appreciative of the enormity of their task, and proceed with the calm serenity of a marine to accomplish the impossible. However, the courts, unlike the bumblebee, are bolstered by legal authority. The law-and it is supreme-places this unavoidable legal responsibility upon the courts.1

The distinction is brought into focus in connection with the admissibility of testimony of witnesses. The rule of law is that testimony of a lay (nonexpert) witness is properly admissible if it involves a statement of fact within his personal knowledge; but, normally, it is not properly admissible if it involves an expression of opinion or interpretation placed upon the facts by the witness. Aside from all metaphysical considerations, there is not only a reasonable justification for the law's endeavor to distinguish between opinion and fact; there is a practical necessity why it must do so. In the hope that the necessity aspect will gradually evolve as we proceed, our immediate concern will be: how should a court, as a practical matter, attempt to distinguish between fact and opinion?

A frequent stumbling-block for the uninitiated is to assume that the terms fact and truth are synonomous. While the two may, oftentimes, be used interchangeably in common parlance, they definitely are not used in the same sense in connection with the admissibility of testimony. We are

dealing with the matter of admissibility (whether the testimony should be received and considered); and not, primarily, with whether it should be believed.

To be admissible, testimony is required to be relevant and competent; but there is no legal requirement that it must be established to be accurate. (Otherwise, a court would have to decide the entire case before it could even begin to receive evidence.) The testimony of two opposing witnesses may qualify independently as statements of fact, enough to entitle each to be admitted in evidence, even though the testimony of each is in direct opposition to the other; and both could not possibly be true. Thus, accused being on trial for striking X, a civilian, in Duffy's Tavern at 2100 on a certain date, Brown might testify for the prosecution: "I was present in Duffy's Tavern at 2100 on that date. I saw accused hit X with his fist and knock him down." Green might testify for the accused: "I attended the Melody Theatre between 2000 and 2145 on that date. Accused was with me the entire time." Both statements, obviously, cannot be true. Yet each is classified as sufficiently factual to entitle it to be admitted in evidence, because the witness in each case states, under oath, that it is a matter within his personal knowledge and experience. That is sufficient for admissibility.

To repeat, a court does not require that the truth of testimony be established beyond controversy before it will listen to it. It is sufficient, for admissibility, that the witness was in a position to know and that, under oath, he swears it to be true. (One of the responsibilities of a court is to judge the credibility of a witness, and to decide the weight which should be attached to his testimony. The formation of this judgment, properly, is in progress during the time the witness is testifying; it continues after his testimony is concluded and while other witnesses are testifying; and the judgment may not be complete until after all the evidence has been introduced.)

The coverage so far has been of a negative variety, comparable to a certain farmer's reputed technique in responding to a motorist's request for travel instructions after devoting some 20 minutes to giving a detailed account of the next fork in the road to the right, directions for getting on it, a description of its appearance and condition, and a discourse on most of his neighbors living thereon, his final parting advice to the motorist

was, "Don't take that right fork. It doesn't go where you want to go."

Now, for a pointer in the right direction. The rule of evidence is, that testimony constituting a statement of fact is properly admissible if it is first established that the witness was in a position to have personal knowledge of the subject matter of his testimony. Until the opportunity for personal knowledge, as well as the actual acquisition of personal knowledge are established, at least to the extent of the witness vouching under oath that they existed, any attempt to elicit testimony from the lay witness is subject to proper objection. This type of objection is variously described as: (1) calling for a conclusion (or opinion) of the witness; (2) lacking a proper "foundation" for the question; or (3) calling for testimony concerning a matter as to which it has not been shown that the witness has personal knowledge, or had an opportunity for personal knowledge.

Personal knowledge (statement of fact) is considered to be information which the witness has acquired as a result of the exercise of his physical senses (sight, hearing, taste, smell, and feeling).2 The attempt is made to distinguish between what the witness knows as a result of physical perception and what he thinks about (the mental interpretation he places upon) those facts.3 The former is properly admissible; the latter, normally not. It is the function of the court to place the proper legal interpretation upon the facts and to draw any legal conclusions that may be necessary: the witness is normally restricted in his testimony to what he knows as a fact. Thus, the nauseating radio-movie technique whereby some lawyers inexorably grind out, by their masterful presentation of the facts preceding a dramatic verbal question mark, the indisputable conclusions grudgingly conceded by a reluctant witness, receives ample support and acclaim from the box office but very little from the law. It may be. however, that the law simply has not caught up with Hollywood yet.

A few examples of testimony within the physical perception of a witness, and which would, therefore, be properly classified as statements of fact follow:

(1) Accused is on trial for stealing a ham from the Station Commissary Butcher Shop on or about 7/4. In connection with the establishment of the corpus delicti, a prosecution witness testifies: "I was in the Butcher Shop at approximately 1400 on

7/4. I noticed several pieces of meat, including an unwrapped ham, lying on top of one of the cutting tables." (Statement of fact observed through sense of sight.)

(2) Accused is on trial for the offense of being Disrespectful in Language to His Superior Officer. A prosecution witness, in connection with the establishment of the words spoken, testifies: "I was passing through the main entrance, Gate No. 1, at approximately 2400, 7/4. Second Lieutenant McGolden, USMC, was talking to the accused. Just as I was about 5 feet away, the accused said: 'I've had duty on submarines, on destroyers, and in Washington and I've never had to put up with anything as rough as trying to serve under a Second Lieutenant in the Marine Corps who hails from Texas and has been transplanted in California.'” (Statement of fact perceived through sense of hearing.)

(A word of caution should be interjected concerning the proper scope of matter encompassed within the range of auditory perception. A frequent misconception is that factual perception based upon the sense of hearing includes not only the existence of a conversation but also the contents of a conversation. The latter is normally not true for two reasons: (1) The hearsay rule renders most conversation incompetent, and (2) The requirement that statements of fact be based upon personal knowledge within the physical perception of the witness rules out second-hand information gained from conversation. It is true that the witness in illustration No. (2) is testifying as to a conversation; but that is one of those comparatively rare incidents where the existence, as distinguished from the accuracy, of the conversation. is an issue before the court.")

(3) The accused is on trial for Carelessly Endangering Lives of Others. A prosecution witness testifies: "I entered the galley space and was immediately assailed with a strong odor which I identified as that of cooking gas." (Sense of smell.)

(4) The accused is on trial for Neglect of Duty. A prosecution witness testifies: "I inspected the general mess during noon chow. I ate a portion of the butter which was served. It was rancid and bitter." (Sense of taste.)

(5) The accused is on trial for Robbery. A prosecution witness testifies: "As I turned the corner, someone grabbed me in the dark. One hand was placed over my nose and mouth and

If it is established that the witness had the opportunity to perceive and did perceive, the result of his perception is properly admissible in evidence. The admissibility is not aected by the confidence, or the lack thereof, which the witness himself manifests in the accuracy of his perception. The certainty, or lack of it, which the witness expresses is a critical factor with respect to the credence to be given to his testimony; but the current consideration is with respect to admissibility, not certainty. There is no requirement of certainty as a condition precedent to admissibility. Thus, the insertion by the witness of a qualification upon the result of his physical perception, such as "I think," or "I believe," may affect the weight to be attached to the testimony, but does not affect its admissibility.

Illustration:

The accused is on trial for Carelessly Endangering Lives of Others. Witness No. (1) testifies: "I detected a strong odor in the shop. It was gasoline."

Witness No. (2) testifies: "I think that the odor which I smelled in the shop was that of gasoline."

A slightly more helpful test of an inadmissible expression of opinion is one which involves a mental operation separate and distinct from the factual knowledge possessed by the witness. The rule governing the admissibility of testimony is based upon the sound principle that the testimony is restricted to what the witness knows as a result of his physical perception, and does not properly extend, normally, to the mental or legal conclusions which the witness draws. Obviously, the application of any test, such as given above, involves the exercise of good judgment and discretion on the part of the court. The law contemplates, however, the combination of intelligent administration in conjunction with the existence of basic direction finders.

Separate treatment must be accorded the matter of expressions of opinion with respect to the "ultimate issue" (the question of the accused's guilt in a criminal case). The rule is, that a witness, lay or expert, may not express his opinion with respect to the accused's guilt, no matter how closely the witness' conclusion may be allied with his factual knowledge.s