Before Navy readers lightly dismiss this section as one affecting the Army only, let it be hurriedly observed that "in the field" may mean the deck of a ship a thousand miles at sea. The phrase has been judicially construed to refer not only to land, but to any place, whether on land or water, apart from permanent cantonments or fortifications where military operations are being conducted.

Two leading cases on the subject merit mention because of their naval interest. One, in World War I concerned a civilian passenger aboard an Army transport; the other, in World War II, concerned a merchant seaman aboard a vessel owned by the United States, but leased by a private company and carrying Army cargo. Both cases held that the persons concerned were accompanying the armed forces in the field and could properly be court-martialed for offenses.

The reason the phrase came under the judicial microscope is that it appears in Article of War 2 (d), long a part of the Army's jurisdictional power and is the basis of the present subsection (10). The Judge Advocate General of the Army has had occasion to hold certain categories of civilians, and types of civilian positions, to be subject to military law under Article of War 2 (d). Mentioned here as a matter of general military interest, some of these holdings include: guides for the Army during warfare with the Indians; an ambulance driver employed by the Army in the Civil War; laborers employed by contractors with the A. E. F. in France; a labor foreman employed by the Army in the Persian Gulf Command; USO Camp Show entertainers with troops overseas; and American newspaper correspondents in Australia officially accredited to the Army.

Although not spelled out in subsection (10), it would seem intended, and constitutionally necessary, that the status of a civilian "accompanying an armed force in the field" within the United States or a Territory must be such as to create an obligation on his part toward the military mission, and a reciprocal supervisory obligation on the part of the armed force. Oherwise, the enforced deprivation of a trial by jury, when one could so readily be afforded, might well pose a serious constitutional hurdle.

"(11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with employed by, or accompanying the armed forces without the continental limits of the United States

and without the following territories: That part of Alaska east of longitude 172 degrees west, the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and the Virgin Islands;

“(12) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, All persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary of a Department and which is without the continental limits of the United States and without the following Territories: That part of Alaska east of longitude 172 degrees west, the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and the Virgin Islands."

The above typography is purposeful. Subsections (11) and (12) are based on a common source and were meant to be complementary. Only to avoid awkward draftmanship were they separated. Seen as set forth above-with the essence of each highlighted-the interrelation of the sections becomes more apparent.

Paraphrasing the two provisions in merger we might put the thought in this fashion: "Unless international law is violated, civilians serving with, employed by, or accompanying the armed forces, or in a reserved area used by the armed forces, beyond the reach of the Federal courts, are subject to the code in peace or war."

The common source of the subsections is a 1943 act of Congress (34 U. S. C. 1201) which extended naval courts-martial jurisdiction to certain civilians outside of the United States. The Act was intended primarily to give Navy the same control over civilians (such as contractors' employees in outlying bases) as that exercised by the Army under the Articles of War. Unlike the Army authority, however, the Navy legislation is operative only in time of war or national emergencya time which Congress declared at an end in 1947 for this statute. It can be seen, therefore, that except for a 4-year period a wide divergence in the authority over identical problems existed among the branches of the armed services. The equal application of subsections (11) and (12), along with (10), ends service differences in a particularly delicate sphere of jurisdiction.

An example of a treaty, the provisions of which have a definite bearing on Navy jurisdiction, is the 1941 Leased Bases Agreement with the United Kingdom. The agreement runs for 99 years and affects the Naval bases at Argentia, Bermuda, and Trinidad. Another treaty of great Naval interest is the one entered into with the Philippine

Government in 1947 concerning our bases there. Prior to the code the Navy lacked the judicial machinery to put some of the Philippine Treaty's provisions into operation, so subsection (12) will be particularly welcome in that area.

There is no doubt that Congress has enlarged the scope of military and naval control over civilians beyond any previously authorized. Bearing in mind that these comments attempt nothing but a sketch of the law, with no discursions into policy, let it be noted that subsection (11) authorizes the court martial of a service man's dependent who has accompanied him to Okinawa, and that a civilian tourist walking into a naval base at Adak is subject to court-martial by the mere fact of his presence, under subsection (12).

IN

Of course, the entire code does not apply to civilians. Some offenses are peculiarly military. In the language of the repealed 1943 act, some offenses are "of such a nature that they can be committed only by Naval personnel." Nevertheless it takes no Nostradamus to foresee many and interesting developments.

Perhaps, though, trial by court-martial rather than civil trial is ceasing to be a bogey in the public mind. After all, a young lady in Germany. who was sentenced recently by a U. S. Military Government court for pumping a few rounds into her service-man husband, complained that she wasn't being treated fairly-she should have (so ran her legal argument on appeal) been courtmartialed.

IN A RECENT SUMMARY COURT MARTIAL case the recorder attempted to introduce a confession purportedly made by the accused, and the defense counsel objected on the ground that anything the accused said to the witness was "hearsay." The recorder replied, to the effect that confessions are admissible in evidence as an exception to the hearsay rule. Defense counsel then countered by citing Naval Courts and Boards, section 174: "A confession, strictly speaking, is hearsay." The defense counsel had lifted this sentence out of its context, and the court, apparently without reading the context, went along with him. The confession was not admitted in evidence. Anyone who will glance at section 174 will see, immediately following the sentence read by the defense counsel, the following statement: "However, it may be repeated in evidence by a person hearing it if it was given voluntarily."

Another recent case went to an equally odd result. The recorder sought to introduce a confession, and presented an abundance of evidence tending to show that the purported confession had been made voluntarily. At the conclusion of the recorder's case on the collateral issue the accused made no effort to rebut. The court asked the recorder's last witness one question: "Did you warn the accused that anything he said might later be used against him?" Answer: "No." After this

exchange the court ruled that the confession would not be admitted in evidence. This ruling proceeded from minds which apparently were not aware of the provisions of Naval Courts and Boards, section 181: "The fact that a voluntary confession was made without the accused having been warned or cautioned that it might be used against him does not affect its admissibility."

The rulings of the courts in both of the above cases were erroneous. The writer has prepared the present article in the hope that it will be of assistance in the future to courts, counsel, and those persons charged with the duty of investigating offenses and collecting the evidence for the recorder or judge advocate. In pursuit of this purpose, numerous actual cases have been selected and are set out in brief without an excess of editorial comment.

Before going into the specific rules and citing the cases it might be well to make a cursory background examination of the hearsay rule.

Testimony is "hearsay" and is inadmissible in evidence when its truth and accuracy depend upon the credibility of some person not on the witness stand. Several reasons have been cited. historically, as the reasons for the existence of the rule: (1) the real witness is not testifying in court under sanction of the oath; (2) the accused is denied the opportunity to be confronted by the

witnesses against him; (3) the accused is denied the opportunity to cross-examine the real witness against him; and (4) the court has no means of appraising the credibility of the originator of the evidence, because he does not appear in court. It was believed by the courts more than 300 years ago that this sort of evidence was so undependable that a jury ought not be allowed to hear it, and the hearsay rule was developed to exclude such evidence. Hearsay evidence is not necessarily unbelievable; it is legally undependable. Thus, if the accused does not object to hearsay evidence the court may properly hear it, and give to it that probative value which it reasonably merits, in the court's opinion.

Some hearsay evidence, because of certain safeguards that minimize some or all of the four risks listed above, is admissible in evidence even over the objection of the accused. Nearly everyone, for example, has a general reluctance to speak against his own interests, and a person who has committed a crime can generally be expected to keep quiet about it. If such a person subsequently becomes over-burdened with conscience and is thus impelled to share his guilty knowledge with others, the chances are good that what he says is true. The courts, therefore, universally recognize that extrajudicial confessions-i. e., confessions made. elsewhere than before a court-are admissible in evidence as exceptions to the hearsay rule.

During the early history of the law, confessions, no matter how they were obtained, were admissible against the maker, and this was true even though the most shameful tortures were used. In the course of time, however, it became evident that persons influenced by hope of benefit, or by fear, are likely to confess to alleged crimes which they never committed. This realization led the courts to receive confessions with caution. Out of this caution has evolved the rule which is the subject of this article-that the confession of a person accused was induced to confess to a crime in which freely and voluntarily made. Confessions not voluntarily and freely made are thus excluded from evidence because of the possibility that the accused was induced to confess to a crime in which he was not, in fact, involved. To be received in evidence in Navy courts, confessions must have been made freely and voluntarily without any influences on the accused's mind caused by threats, promises, or other improper influences, however

slight. Confessions obtained by compulsion should be excluded, regardless of the character of the compulsion.

It is proper to allow both sides an opportunity to introduce evidence to show whether the confession was voluntary. The accused has the right to take the stand and give his version of the circumstances which induced the alleged confession. Ordinarily this should be done by the accused on his voir dire, and the questioning of the accused must be limited to the collateral issue of the voluntariness of his confession. However, even after the confession is admitted the accused still has the right to offer testimony about all the circumstances which might affect its admissibility or its weight.

The rule to be followed in Navy courts martial is set forth in Naval Courts and Boards, sections 174 and 177. It must be affirmatively shown in Navy courts martial that the confession was entirely voluntary on the part of the accused. The burden, from the beginning, is upon the prosecution to show that it was voluntarily made. In reaching its decision on the collateral issue, the court should have before it the testimony of both sides about the facts and circumstances surrounding the taking of the confession. The court has the right to accept either the prosecution's or the accused's version of how the confession was made.

Whether a confession is voluntary depends entirely upon the facts of the particular case, and each new case must be judged on its own facts. Having heard the testimony on both sides, the court is confronted with two hurdles. First, out of the conflicting evidence before it, it must find the true facts surrounding the taking of the confession. Second, being satisfied about the facts, it must apply the law to the facts-i. e., construe the evidentiary significance of the facts-and make the vital determination whether the confession was freely and voluntarily made.

Consequently, it is desirable to examine each fact which might be represented as having some bearing on the issue. It will be noted in the discussion which follows that any particular case may include more than one pertinent fact.

Arrest or confinement

The fact that the accused was under arrest or in custody of the police at the time of his confession is not, of itself, sufficient reason to exclude the confession. The mere fact that he was in confinement when examined does not render his

confession inadmissible; but as one of the circumstances to be considered by the court, his imprisonment may be taken into account in determining whether the statement was voluntary.

Example 1.-Accused was discovered by Federal prohibition agents driving a Packard touring car loaded with illicit whisky. While he was under arrest, accused made several statements. Held: The statements were admissible. That accused was under arrest does not deprive the statements of their voluntary character or render them inadmissible. (Lytle v. U. S., 5 F. 2d 622.)

Example 2.-Accused was arrested and charged with murdering a Federal game warden on a Government reservation. While in custody of Federal authorities the accused confessed to a special agent of the Department of Justice. Accused was handcuffed at the time, and several armed guards were present. Held: The facts that the accused, when he made his confession, was in custody, was handcuffed, and was guarded by armed officers, are not sufficient to render his confession involuntary. (Greenhill v. U. S., 6 F. 2d 134.)

Failure to warn

The fact that a confession, otherwise voluntary, was made without the accused having been warned or cautioned that it might be used against him does not affect its admissibility. If the confession was voluntary, it is admissible even though it should appear that he was not so warned.

Example.-Accused objected to the introduction in evidence of a confession made by him "on the ground that the accused had not been properly warned that what he said might be used against him." The court sustained the objection. Held: That the ground assigned for objection was untenable in view of section 181, Naval Courts and Boards. (C. M. O. 5, 1932, 9.)

Presence of military superiors

The mere fact that the accused's military superiors are present at the time he confesses does not necessarily render his confession involuntary. The question in each case should be whether the presence of the superior operated on the mind of the accused to coerce him. However, confessions made by enlisted men to superiors should be regarded with great caution, and where there has been even slight assurance of relief or benefit by the superior the confession should not, in general, be admitted. The relationship of the parties is such that undue influence may be easily exerted.

Example 1.-W, a hospital apprentice, and one L, were suspected of having unlawfully disposed of a quantity of morphine. The medical officer called in W and told him that it was known that he had taken the narcotics and that it would go easier on him if he confessed. Held: That the alleged confession was improperly admitted in evidence. (C. M. O. 3, 1925, 4.) Note that here was an express promise of benefit.

Example 2.-Accused was charged with stealing a dozen cases of beer from a Navy warehouse. On the trial the court admitted his extrajudicial confession over his objection. The evidence showed that while the accused was confined in the brig he was brought before a lieutenant (junior grade) and questioned about the alleged theft. The officer told him, in effect, that his failure to make a confession would constitute a failure to perform his duties as a petty officer. Held: The confession made by the accused to the officer was inadmissible under these circumstances. (C. M. O. 11, 1945. 438.)

Solicitation of confession

A confession is voluntary and admissible even though it is elicited by questions put to the accused by a constable, magistrate, or other person. and even though the questions assume the accused's guilt. The mere fact that the confession comes during or after a questioning period does not render it involuntary. The mere statement to an accused that it is "preferable to tell the truth" is not necessarily a disqualifying fact, but the advice and "encouragement" which may precede such statement by an investigating officer may well constitute a disqualifying factor. Specific advice or encouragement to an accused that he confess is generally considered sufficient to operate on the mind of an accused person and to induce either hope or fear, or both. It goes without saying, that a confession made pursuant to orders from an officer in authority cannot be considered as having been made voluntarily.

Example 1.-The commanding officer of the accused called his attention to a newspaper account of certain crimes in which the accused participated while on shore, and asked him whether he had "any statement to make concerning it." The accused thereupon made a verbal statement concerning the newspaper report "without threat, inducement, or promise of reward." The commanding officer then "asked him if he would make a written state

ment" and the accused complied without "any threat or promise of reward." Held: Both the verbal and written statements were admissible as confessions. (Naval Digest, Confessions, 1.) Example 2.-The police detective made the following statement to the accused: "Now look here, Bram, I am satisfied that you killed the captain, from all I heard from Mr. Brown, but * * * some of us here think you could not have done all that crime alone. If you had an accomplice, you should say so, and not have the blame of this horrible crime on your shoulders." Held: The confession was rendered inadmissible. (Bram v. U. S., 168 U. S. 532.)

Example 3.-The investigating officer told the accused, an enlisted man whose conduct was the subject of the investigation, that the truth was the more desirable procedure in any situation, and advised and encouraged the accused to tell the truth. Held: The confession should not have been admitted in evidence. (C. M. O. 2, 1943, 66.)

Use of promise of benefit

A confession is not voluntary when it is induced, or materially influenced, by hope of release or other benefit inspired by one in authority or by a person competent (or believed by the accused to be competent) to effectuate what is promised. Statements made under such conditions should not be admitted. But the fact that the accused hoped to obtain leniency by his confession does not make the confession involuntary, when the hope was not induced either by promises or threats made by the officers.

Example 1.-The Commandant of a Naval District obtained a confession from an accused person by promising that, if the accused would confess his guilt, he would urge the Navy Department to mitigate such sentence as might be adjudged by the general court martial which was to be convened in the accused's case. Held: That the confession was not voluntary in the legal sense of the word because it was obtained by a person in a position of authority over the accused as a result of a promise that, if the accused would confess, efforts would be made to mitigate his punishment. (C. M. O. 2, 1922, 9.)

Example 2.-The provost marshal, who was investigating a theft allegedly committed by the accused, who was an officer, secured from the commanding officer of the accused a promise that if the accused would admit guilt and sign a resigna

tion from the naval service "in order to avoid trial by general court martial," the commanding officer would forward the resignation to higher authority recommending that it be accepted. After receiving this assurance, the accused confessed. Held: The promise to the accused that, if he would confess, the commanding officer would recommend the acceptance of his resignation, must reasonably be construed to have engendered hope of benefit in the accused's mind, and consequently rendered the confession inadmissible. (C. M. O. 4, 1946, 164.)

Example 3.-The accused was suspected of having "peeped" into nurses quarters. On the day following the incident the accused was questioned at some length by a lieutenant commander in the presence of the accused's commanding officer. In the process of the examination the lieutenant commander twice told the accused that if he told the truth "it would be taken into consideration by his superior officers." The accused's confession followed. Held: The promises made to the accused by an officer in the presence of the accused's commanding officer could not have had any effect other than that of engendering hope of benefit in the accused's mind. The statement was improperly admitted. (C. M. O. 2, 1944, 266.)

Use of threats

Threats have the same effect, in the determination of the question of voluntariness, as promises made to the accused. If a confession is obtained by oral threats of harm, or by actions of those in control of the prisoner which are equivalent to threats, the confession is involuntary and should not be admitted. The underlying principle is that the confession should not be induced by threats, because under such circumstances the accused may have been influenced to say that which is not true, and the supposed confession cannot be safety relied upon.

Example 1.-Accused was charged with stealing property of the United States intended for the naval service thereof. The investigator threatened to implicate the accused's girl friend. The accused stated that he would tell the truth if she were left alone. Upon being told that she would be left alone if he told the truth, he confessed. On the subsequent trial the confession was admitted in evidence over the accused's objection. Held: That the confession was not voluntary and was not