leave, the accused comes forth with something that sounds like this, "If I am guilty of the specification as charged against me, it is merely because I misunderstood Major L- when he told me that I was not to have liberty on this date," then the court had best put sections 417 and 420 to work without hesitation. C. M. O. 190, 1918, 27.

The court may have occasion to hear an alleged thief plead guilty to larceny, and then hear him confuse the issues by submitting a statement in which he denies that he intended to steal the article concerned, as was the case in C. M. O. 3, 1930, 13. Also see C. M. O. 174, 1918, 19, where a similar situation resulted in disapproval of the proceedings, findings, and sentence.

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Remedial action by the Judge Advocate General was deemed appropriate where the accused pleaded guilty to violation of Censorship Regulations and then stated, "* I have been informed that I am presumed to know what those regulations are. At no time have I ever read them or have they been read to me." C. M. O. 1, 1946, 30.

Nor is a guilty plea a joking matter, if the accused pleads guilty and then says, "I was only joking and trying to have some fun with Beusee when I asked him to put me on report. I did not think that he would take my request as other than a joke." The question of how much the accused was actually joking can only be determined by a not guilty plea. C. M. O. 11, 1925, 15.

It seems rather obvious that a man should not be found guilty of desertion growing out of an absence which he does not remember, but the court's failure to reject a guilty plea, and put the question of amnesia in issue, resulted in a fatal irregularity as shown in C. M. O. 129, 1918, 22, where the inconsistent statement asserted that the accused "suffered from a lapse of memory and remembered nothing during the period of his absence."

An inconsistent statement appearing in a recent case bore an amazing similarity to the principles of law enunciated in a court martial order published 30 years ago. In C. M. O. 60, 1920, 17, the accused pleaded not guilty to the charge of "Assaulting with a deadly weapon and wounding another person in the Navy." The court martial order stated, "From the evidence adduced it appears that previous to the assault alleged Y twice knocked a cigarette from the mouth of the accused, that he did so in a threatening manner, and that he struck the accused on the jaw two or more blows

with his fist. The accused stated he would report Y and later, after the accused had been to the chief master at arms' quarters, Y used threatening language to the accused. Shortly thereafter Y assumed a threatening attitude and raised his fists with the apparent intention of again striking the accused. According to the accused's testimony he feared injury. Y was a much larger man than the accused, who chose the only means open of defending himself by grasping a stick which was on the deck and striking Y." The Judge Advocate General ruled that from the very testimony of the prosecution witnesses no offense was proven, because a person who is unlawfully attacked by another in such a manner as to incite in him a reasonable belief that he is in danger of receiving some great bodily injury, may use such force to repel the attack as at the time appears to him to be reasonably necessary. The findings and sentence were disapproved.

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Our accused in 1949 was a willing soul, and pleaded guilty to "Striking another person in the Navy," but then made the following statement not under oath, which will be seen to have an unusually familiar ring: "I would like to state I am guilty as charged G and I had several arguments prior to the fight occuring [sic] on or about 7 September 1948. I tried to avoid him as much as my duties would allow. G gave me the impression that he was going out of his way to start trouble with me. G is larger than myself and is also a middle weight fighter in the Navy. I am not much at fighting, and there is no doubt in my mind what would happen to me if we ever came to blows. One word led to another. G struck me in the face knocking a cigarette from my mouth, and from his motions meant to carry through and work me over. I was excited and afraid. I struck at him several times with a knife, *" C. M. O. 5, 1949, 107. Not only was the accused unwilling to buy the proposition of saying it under oath, but in making his inconsistent statement he waved the red flag by paraphrasing the very defense that the Judge Advocate General had pointed out 30 years ago.

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*

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The court, however, failed to recognize this fact, and found the accused guilty by plea. Because of the court's failure to reject the plea of guilty, the Secretary of the Navy deemed it proper to offer the accused a new trial. It was stated in this court martial order that "Courts martial should give careful consideration to statements and mat

ters purportedly in extenuation made by an accused, when he has pleaded guilty, so that if such statement or matter purportedly in extenuation is inconsistent with his plea, change thereof may be made and the case then tried on its merits, and thus any miscarriage of justice prevented."

In the old days of more conservative football it was not uncommon for coaches to caution their quarterbacks, "when in doubt, punt." Likewise, it is submitted that the court should not gamble on the question of whether a guilty plea, followed by what possibly may be an inconsistent statement, will be prejudicial to the accused if the court fails to reject the guilty plea. If in doubt, reject the plea.

As previously stated, section 420 provides, in part, that failure to reject the plea of guilty will not render the proceedings void, but voidable at the discretion of the convening authority if it appears to him that the interests of the accused have suffered substantial prejudice. If, however, an unsworn statement contains assertions which appear to be inconsistent with the plea of the accused, and which would be a possible defense if believed by the court, failure to reject the guilty plea amounts to unnecessarily shifting to the convening authority the burden and responsibility of determining whether the accused has or has not suffered substantial prejudice. More important, once it is admitted that such inconsistencies are present in the statement, and that such statement, if believed by the court, would have constituted a defense, is it not a dubious assertion to say that the accused has not suffered substantial prejudice? Naval Digest, 1916, p. 584, par. 12, even goes so far as to state that "A statement submitted by the accused who has pleaded guilty' of desertion although not inconsistent with his plea may be of such a nature as to justify the rejection of the plea and a trial of the case on its merits.” [Emphasis supplied.] C. M. O. 4, 1924, 9, published at a time when a guilty plea to the charge of desertion was permissible, sets forth a statement of the accused, following a guilty plea, to the effect that he did not intend to desert, but on the contrary was endeavoring to report back to the Navy at all times. The Judge Advocate General stated that "Courts martial should carefully scrutinize statements presented by the accused, and should the tenor of the statement be anything more than a mere request for clemency the latter should be rejected and the procedure outlined in

section 622 [now section 417] Naval Courts and Boards, followed." [Emphasis supplied.]

In view of the aforementioned SecNav letter of 17 October 1946 (N. D. Bul. 46-2041), making mandatory a plea of not guilty to desertion, the court is in the peculiar position of having no procedure whereby it can bring matters in defense into evidence if the accused and his counsel insist on including such evidentiary matters in a statement not under oath. So again it is urged that the proposition to say it under oath is a sound "buy," and an investment that will pay dividends.

In passing it should be noted that there are some other pitfalls, relative to the subject matter discussed herein, which might very conceivably result in fatal error. First, all the words of caution concerning the proper procedure to be followed by the judge avocate and the court, in the case of an inconsistent statement not under oath, are equally true of matter in mitigation or extenuation presented under oath, subsequent to the findings. Should such matter be inconsistent with a prior plea of guilty, then the court should not fail to follow the procedure outlined in sections 417 and 420, Naval Courts and Boards. (C. M. O. 6, 1945, 276; 4, 1924, 8; section 165, Naval Courts and Boards.)

Second, in the event the court rejects the guilty plea of the accused, the judge advocate must remember not to "freeze in his tracks," and fail to offer prosecution evidence, as happened in the trials reported in C. M. O.'s 10, 1926, 8; 4, 1925, 14; 6, 1924, 3; and 92, 1918, 14.

Last, if the accused is not represented by counsel and elects to make a statement not under oath, the judge advocate should insure that sections 359 and 614 (93) are complied with. And, as indicated in section 419, under no circumstances should the judge advocate use the matters referred to in such statement as a vehicle of argument.

To summarize, when the judge advocate and the court hear the accused make a statement not under oath, these are the important matters to consider:

1. Has the judge advocate properly advised the court about what appear to be inconsistent statements, or evidentiary statements of fact that should not be considered by the court?

2. Has the court resolved all doubt that the statement of the accused may be considered inconsistent; and, if so considered, has the court rejected the related guilty plea of the accused?

3. In mitigating the sentence or recommending clemency, has the court properly ignored any statements of fact appearing in the unsworn statement which should have been introduced in evidence?

One parting shot to those of the accused and their counsel whose sales resistance may have withstood the proposition that you should say it under oath. It is again emphasized that the sales talk is not intended in any way as an attempt to influence defense counsel to expose the accused to cross-examination when such procedure has been given due consideration, and counsel believes that the accused would be prejudiced thereby. However, it is submitted that, although probably no defense counsel cares to entertain the thought that he is gambling with the career or future of his client, nevertheless every trial presents a certain element of chance, and "playing the percentages" is generally the wise thing to do. Thus, if counsel in effect plans to do nothing for the accused and hides his defense ammunition in a statement not under oath, which is meaningless insofar as the findings are concerned, surely the accused can do no worse by firing his defense ammunition straight into the evidence, and saying it under oath.

SKELETONS IN OUR JUDICIAL CLOSET

By LCDR W. C. Kiracofe, USN

CRIM

RIMES WERE NOT ALWAYS CONSIDERED to be offenses against society or the state. As late as the thirteenth century, a municipal code provided that one convicted of homicide should be turned over to the family of the victim for disposition. Likewise, members of the wrongdoer's family were often compelled to contribute toward compensation paid to the victim's family, on the theory that each member of the family was liable for the acts of all, and all for the acts of each.

Family connections, however, were not in all cases such a handicap. Long recognized as part of the judicial procedure of England and many countries of the continent was a mode of trial known as compurgation. In its original form, the accused appeared before the court and denied the allegation against him under oath. In this he

was supported by the oaths of a prescribed number of his kindred. These "conjurators," as they were called, swore not as to any knowledge of the facts, but shared equally with the accused in the oath of denial of guilt. Later the oath of the conjurator was modified to a declaration of belief in the innocence of the accused. Failure to obtain the necessary number of conjurators resulted in conviction. Since conjurators were liable for severe penalties for perjury, usually the loss of a hand, it followed that many were unable to round up enough witnesses to obtain an acquittal in this

manner.

Generally, the privilege of compurgation was accorded only when there was a lack of competent evidence, and its use was discretionary with the court. The mode of selection and the number of conjurators varied according to the crime, the rank or status of the person accused and the jurisdiction involved. A person once convicted of crime was considered unworthy of belief, and was not accorded this type of trial. Although the practice was supported by the Church, little confidence existed in it, and perjury was widespread. Its use in England declined at the end of the twelfth century, but it persisted in certain civil actions, and was not finally abolished until 1833.

The system of oath-taking, which followed in the wake of Christianity, replaced trial by combat. The resulting prevalence of perjury caused the king of Burgundy to restore a form of trial by combat, judicial combat, at the beginning of the sixth century. It was soon recognized in many other European codes. Judicial combat or "wager of battle" did not refer to a spontaneous brawl but, rather, contemplated a deliberate resolving of an issue upon the outcome of a duel between two disputants, or between two champions selected by them. Prerequisite to the combat were the conflicting assertions of the litigants, confirmed by oath. The champions, like the litigants, were required to swear to their belief in the justice of their respective causes, and it often happened that a defeated champion, who survived the battle, gave up his life or a hand for perjury. Moreover, the defeated accuser faced trial and conviction for malicious prosecution.

In England, weapons were furnished and expenses borne by the Crown in criminal cases tried by judicial combat. Contrary to the general attitude toward oath-taking, great confidence was reposed in judicial combat. This has been ex

plained on the basis of popular belief in divine intervention on the side of justice, in this type of trial. There is no record of trial by combat in England prior to the Norman Conquest in 1066, and thereafter it was adopted as an alternative to the "ordeal." Trial by jury made its appearance toward the end of the twelfth century, after which trial by combat gradually declined. Its legality was still recognized as late as 1815, however, and it was not finally abolished until 1819.

Like the judicial combat, considerable faith existed in the ordeal on the theory that God would protect the just. The Church, having encountered the ordeal among the barbarians, accepted it as an appeal to God's justice, and conducted it with. appropriate religious services.

The ordeal took a number of forms, most of which originated in India. In the ordeal of boiling water, a container of water was brought to the boiling point and the accused was required to thrust his hand into the water to retrieve a stone or ring placed in the bottom. The hand was then wrapped in a cloth, sealed by the judge, and three days later the guilt or innocence of the accused was determined by the condition of his hand.

The red-hot iron, another widely used ordeal, was employed in two ways. One required the accused to walk barefooted and blindfolded over 12 red-hot plowshares spaced at intervals. The other, used by the Anglo-Saxons, required that a red-hot iron be carried in the hand for a distance of 9 feet. The weight of the iron depended upon the degree of the crime. Here again, guilt or innocence was decided by the condition of the feet or hand 3 days later. The ordeal of fire was administered directly without the medium of water or iron.

The ordeal of cold water consisted in lowering the accused into a pond or reservoir of water by rope, and determining guilt by the degree of submergence. Some courts held that sinking to the bottom was necessary for acquittal, while others held that complete submergence was sufficient. As in the case of compurgation, the ordeal was resorted to only where satisfactory testimony was not available. Those previously convicted of crime were compelled to submit to the ordeal, since they were not considered worthy of belief under oath. The custom was finally prohibited in England in 1219.

Torture, which was recognized in the civil law and was used on the continent, had been rejected

in England from early times. Its use in other countries, however, eventually persuaded the Crown that this was a prerogative reserved for the sovereign. In 1468 it was employed and resulted in the execution of the Lord Mayor of London. Having once been established as a peculiar right of the Crown, it was used in cases of high treason and in religious persecutions. The custom then spread to ordinary criminal cases, such as murder and theft.

The general abuse came to an end after the reign of Elizabeth, and torture was thereafter confined to cases of sorcery and witchcraft. These crimes were regarded as being of such a nature that they placed the accused beyond the protection of the law. As a practical matter, it was most difficult to obtain a conviction for such crimes except by confession. Two methods of torture were commonly employed in England for these offenses. One, which was particularly effective in obtaining a confession, consisted of depriving the prisoner of sleep over a long period of time before bringing him to the courtroom. The other involved pricking the body to discover an insensitive spot, the possession of which, it was believed, was the unfailing sign of a witch. The strategy of this method was to torture the victim, while in court, until he became speechless; whereupon the tormentor would immediately "locate" the telltale spot. A statute of 1641 in the Colony of Massachusetts permitted torture of a person convicted in a capital case, where it was apparent that there were unknown conspirators or confederates involved.

Such were the predecessors and, for a time, the contemporaries of the jury trial. As the latter grew in use, the fallacies of "justice" through compurgation, battle, ordeal, and torture were realized. Outlaw cousins of some of these legal barbarities have persisted into modern times. Man continues to resort to physical combat for on-thespot justice; perjury remains a problem, although testimony is now restricted to those who profess knowledge of the issues; and the "third degree" and mob violence still provide an occasional item for the daily papers.

Trial by jury has weathered the storms of eight centuries. Its defects are known, but few of its critics would have it otherwise. Perhaps it, too, may one day fall a victim of them, joining its forerunners in the limbo of things outgrown, discarded, and officially forgotten.