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 reports 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

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WHAT PRICE
SILENCE?

By CDR C. T. Cole, USN

WHEN the late-homing husband faces his

angry wife in the gray light of dawn, his silence does not mean that he agrees with all the unpleasant accusatory things she says about him and his conduct. He may feel merely that silence best serves his immediate interests. His silence may conceal, variously, any or all of the mental stages, ranging from assent to doubt or even to active dissent. Usually, silence at this critical stage serves as a cloak for nothing more than a pervading and earnest desire for connubial peace and the tranquility of a few hours of sleep.

Manifestly, in most other human relations the mere fact of silence presents this same equivocal appearance. When a statement accusing a person of crime is made in his presence, the natural and normal inclination of an innocent party is to deny it as a matter of self-preservation and self-defense. This has given rise to a well-established rule of evidence. For example, a theft has been committed in the ship's store. Next day two enlisted men are overheard in conversation. A says to B. "I understand that it was you who broke into the ship's store last night and robbed it." B does not reply. Evidence as to the statement by A and B's silence would, normally, be received in evidence as "an admission by silence," either as showing consciousness of guilt or as against B's interest.

On the other hand, there are numerous situations where a reply to an accusation is not required by the circumstances, and in such cases the silence of a person would not, ordinarily, be received in evidence against him. A very common situation of this nature in naval law, one which has resulted in some confusion of thought as to the applicable rule, is the following.

An enlisted man is brought before his commanding officer at mast under suspicion of committing a criminal offense. The commanding of ficer asks him if he is guilty of the offense. At this point the man is in a mental predicament. If he answers in the affirmative, he automatically qualifies for some form of punishment. He is afraid that if he answers in the negative, subse

quent disclosures during the investigation may show that he was lying, and that he will be charged not only for the offense under investigation, but also for falsehood. The obvious solution is to remain silent, but even without a knowledge of law or the rules of evidence, the average suspect feels that his silence may be interpreted as assent, and may serve to put him in the same position as if he had answered in the affirmative.

It should be noted that recent CMO's have clarified the second point specifically, and have consistently held that a denial by the suspected person while under preliminary investigation will not support a conviction for falsehood, because such a denial is purely defensive. (CMO's 4, 1946, 136; 1, 1943, 73.)

As to whether, under such circumstances, the silence of the suspect may be used as an admission against him, NC&B, section 342 states that a commanding officer cannot legally compel any subordinate under his command to make a statement relative to accusations against himself, and that the right of silence, or refusal to incriminate oneself, is accorded to the person whose conduct is the subject of preliminary investigation, as well as to the witness or accused at a trial. The present article will discuss the principles of law underlying this rule and its ramifications.

It is well settled that declaration made in the presence of a person relative to the subject matter of the controversy or the offense, and not denied by him, are sometimes admissible in evidence as an exception to the hearsay rule. However, a long series of judicial determinations has qualified the rule, to the extent that the statements are not admissible unless they are of such a character as would naturally call for a response, and unless the party sought to be charged was in such a situation that he would, normally, reply to them.

Where the accused expressly admits the truth of the statement or accusation by a third party, it is clear that the reply is receivable as an admission against interest, NC&B, section 182. On the other hand, where the truth of the statement by the third party is explicitly denied by accused, this completely destroys the ground on which the admission is received. However, where the accused remains silent the question arises whether the conduct of accused amounts to an implied admission. It is obvious, of course, that under certain circumstances the statements of a third party may be admissible when the statements come under some ex

ception to the hearsay rule. The present article is concerned only with statements of a third party which are, in effect, adopted by the accused as his own by reason of his failure to deny them.

This type of implied admission originally was founded upon the maxim, "silence gives consent," which has such a wide application in the general affairs of life that it has become the basis of a broad principle in the law. It was recognized very early in the history of the common law that silence is a species of conduct. For example, failure to complain of rape is usually admissible to prove that there was no rape, but intercourse by consent. In the law of evidence the courts developed a convenient rule of thumb that whatever was said in the presence of the accused was admissible against him. As so stated, the rule is entirely too comprehensive. That it was capable of misinterpretation is shown by an early English case quoted in Wigmore on Evidence, section 1071, as follows:

"A prisoner was being tried before the Chief Justice at the Munster Assizes for stealing a gander belonging to an old lady farmer; and the evidence was that a gander was being carried away by the prisoner but escaped from his clutches and was recaptured and identified by the prosecutrix. The counsel for the defense severely crossexamined her as to how she could possibly identify the gander as hers, saying that one gander was as like another as two peas are; to which she replied that when it fell from the prisoner's arms, it rushed back to her flock, and she added, 'and all the geese wagged their little tails with joy at the sight of um.' At this point the Chief Justice intervened, saying, 'Madam and Gentlemen of the Jury, I must tell ye that that is not evidence. This lady must not tell us anything that accurred between the gander and the geese unless it took place in the presence of the prisoner'."

As used in the court room the rule is frequently heard in the form of an objection to certain testimony expressed as follows: "I will object to anything not said in the presence of the accused." By reason of the simplicity of the rule, it has sometimes led to a misconception. It is unfortunate that some of the early CMO's stated the rule in an abbreviated form which lent credence to the belief that anything said in the presence of the accused is an exception to the hearsay rule. For example, in CMO 4, 1929, 15, a ruling by the court, sustaining an objection to the testimony of a wit

ness relating to what was said by a third person in the presence of the accused, was held error, the opinion stating:

"The testimony objected to was not hearsay as it was made in the presence of the accused and was, therefore, admissible. (Naval Digest, 1916, page 583, par. 1 under 'Statements made in the presence of accused'.)"

It may be noted that Naval Digest, 1916, page 583, cites CMO 214, 1902 which stated the rule in similar abbreviated form. A witness for the prosecution testified, "The police officer stated that the accused gave himself up." The opinion reads as follows:

"While it does not certainly appear from the above-quoted evidence that the statement of the policeman in question was made in the presence of the accused, it would seem to be a reasonable inference therefrom that such was the case, and if so, said statement was clearly admissible and should not have been ruled out."

Partly as a result of such CMO's, a misapprehension has arisen that the mere presence of the accused renders any statement admissible. It is obvious, however, that there is nothing sacrosanct about statements made in the presence of the accused. On the one hand, certain statements, such as the admissions of a co-conspirator, are admissible even if not made in the presence of the accused. NC&B, section 186, 189. Conversely, not everything said in the presence of the accused is receivable in evidence against him. Silence may imply assent to the truth of a statement, but only under certain circumstances.

The correct rule has been laid down by the courts on numerous occasions. In Wiedemann v. Walpole, 2 Q. B. 534, 539, Bowen, L. J., stated it in the following language:

"There must be some limitation placed upon the doctrine that silence when a charge is made amounts to evidence of an admission of the truth of the charge. The limitation is, I think, this: Silence is not evidence of an admission, unless there are circumstances which render it more reasonably probable that a man would answer the charge made against him than that he would not."

In the United States one of the earliest pronouncements of the rule is set forth in Vail v. Strong, 10 Vt. 457 where Phelps, J., stated:

"It is sometimes said that, if a fact which makes against the party, is stated in his presence, and is not contradicted by him, his silence raises a pre

sumption of its truth. To this position we canno accede. The mere silence of the party creates no evidence, one way or the other. There are, indeed. cases where the silence of the party creates a presumption or inference against him; but this presumption derives all its force from the circumstances under which the statement was made. which may call for a denial."

Insofar as naval law is concerned, there should have been no misunderstanding as to the rule since the publication of the 1923 edition of Naval Courts and Boards (sec. 364, identical with sec. 185 of the 1937 edition) which stated:

"The silence of a party when he would ordinarily be expected to speak may be evidence against him. It must be shown that the accused heard or was in a position to have heard the statements against him, and the circumstances must have been such as naturally and reasonably to have called for a reply from him."

What the circumstances are, under which the silence of a party may be evidence against him. merits some consideration. An examination of the cases discloses that certain principles can be stated as a guide in determining the admissibility of such evidence.

(a) Accused Must Have a Motive for Replying

The circumstances under which the statement was made must be such that the accused would normally be expected to make a denial. Ordinarily, if the statement relates to matters not within the knowledge of the accused, he has no obligation to speak. Kelley v. People, 55 N. Y. 585; Wright v. People, 1 N. Y. Crim. Rep. 462. Similiarly, a flippant statement intended as a joke, the accusations of hysterical persons or the slanderous remarks of a drunkard call for no reply from the accused, since under all the circumstances a reply would be unnecessary or imprudent.

(b) Accused Must Be Able to Hear and Understand the Statement

The theory underlying the entire doctrine is based upon the view that, by his silence, the accused consents to the truth of the statement, and adopts the statement as his own. Accordingly. there can be no admission by silence unless it is proved that the accused, in whose presence the statement was made, was in complete possession of his faculties, and was physically able to hear, and mentally able to comprehend fully the signifi

cance of the statement.

For example, where the plaintiff was injured y an explosion in a coal mine, the trial court exluded certain statements made by a third party n the presence of the plaintiff the morning after he accident. It was held that the testimony was properly excluded since the plaintiff at the time was unconscious or in a state of semiconsciousness, nd in such a physical condition as not to be bound by his silence. Gowen v. Bush, 76 Fed. 349. Simlary, such statements were held inadmissible where there was no evidence to establish that the person heard the remark (Gila Valley Ry. Co. v. Hall, 232 U. S. 94), and where the person was an Italian who spoke little English and was suffering at the time from pain, shock and loss of blood (Parulo v. Phila. & R. Ry. Co., 145 Fed. 654). (c) Accused Must Be at Liberty to Reply

Where the accused is in fear of bodily harm. his failure to reply to an accusatory statement obviously is not admissible against him. Moreover, silence is not consent to a statement made in the course of judicial proceedings. On this point it is held that judicial decorum forbids the accused to interrupt the proceedings. People v. Willett, 92 N. Y. 29. Even an admission made in open court by counsel for accused is not binding on the latter unless he authorizes or approves it. CMO 10, 1948, 285.

There is a conflict of authority as to the admissibility of statements made by the accused while under arrest, not in court. In some States it is held that the mere fact that the accused was under arrest or in custody is not sufficient to make the statement inadmissible, but is one of the circumstances to be considered in determining whether the failure of accused to deny the statement shows a consciousness of guilt. Emmett v. State, 195 Ga. 517. On the other hand, in many courts it is held that the fact of arrest alone is sufficient to render inadmissible the testimony as to accusatory statements in the presence of accused, Commonwealth v. Kenney, 12 Metc. (Mass.) 235. The latter rule is usually followed in Federal courts. In McCarthy v. United States, 25 Fed. (2d) 298, the defendants under arrest were taken before the district attorney for examination, and a third party arrested with them stated that the defendants were the ones who maintained the place for selling liquor. The admission into evidence of testimony concerning the failure of defendants to deny such statements was held prejudicial, in these words.

"Where accusatory statements are made in the presence of a respondent and not denied, the question whether his silence has any incriminating effect depends upon whether he was under any duty or any natural impulse to speak. Sometimes or often, in the earlier stages of the matter, there may be such a duty or impulse; but, after the arrest and during an official examination, while respondent is in custody, it is common knowledge that he has a right to say nothing. Only under peculiar circumstances can there seem to be any duty then to speak. Lacking such circumstances, to draw a derogatory inference from mere silence is to compel the respondent to testify; and the customary formula of warning should be changed, and the respondent should be told, 'If you say anything, it will be used against you; if you do not say anything, that will be used against you'."

The same rule has been followed in naval courts martial. The fact that an accused remained silent when statements were made by third parties, implicating him in the criminal offense, is inadmissible where the accused was already in custody or under arrest and hence had no duty to speak. CMO's 1, 1943, 27; 1, 1942, 182; 11, 1931, 10.

It may be noted that even the Federal courts have relaxed the rule in at least one instance. In Rocchia v. United States, 78 Fed. (2d), 966, the court stated:

"Ordinarily a defendant under arrest is entitled to remain silent, notwithstanding statements by the arresting officers in his presence, and his silence should not be construed against him. McCarthy v. United States, 25 F. (2d), 298, 299, and cases collected therein. (See 16 C. J. 633, sec. 1259.) We think, however, that a statement by one officer to his superior, in the presence of the defendant, that there had been an attempt made by the defendant while in his custody to secure his release by bribery, calls for reply from the defendant, and that his silence in regard thereto would be admissible in evidence."

Accordingly, it is apparent that even in the case of an accused under arrest, the test to be applied is whether under the circumstances there was an obligation upon the accused to speak.

Conclusion

It can be concluded, therefore, that in naval courts martial, the hearsay rule does not exclude evidence as to statements made in the presence of