Former Testimony

• Author: By Major Joseph E. Donahue
• Pages: 01

The purpose of this article is to present a discussion of the use of former testimony under the Unifomn Code of Militav Justice. Emphasis will be placed on its histor-ical antecedents, its relationship to wages in civilian m'minal jurisdictions together with an analysis of the terminology of paragraph 145b, Manuul for Courts-Martial, United. States, 1951. I. INTRODUCTION

1. DEFINITION

   "Former testimony" is a term of art that has a common meaning whether it is used in civil or criminal trials, Federal or State trials, or military or civilian trials.' It is testimony, made under oath, at an earlier judicial proceeding, at which the party against whom it is sought to be used, if he is the accused, was present and had an opportunity to cross-examine the witness who is unavailable for the subsequent proceedings. Although the term is sometimes applied to impeachment testimony, to admissions and confessions, to testimony used to refresh recollection" or a~ past recollection recorded: to testimony which in itself is criminal (perjury), and to testimony showing motive for a crime by the accused: it is used in this article, unless otherwise indicated, only

   * Thia article was adapted from a thesis presented to The Judge Advoeate General's School U.S. Army, Charlotteinlie Virgmia while the author wasB member of th; Thirteenth Career Coum.'. The &ions and conelu~~ons presented herein a x those 01 the author and do not necewmly represent tho viewus of The Jvdge Advoeate General's School OP m y other governmental PzenC"

   _ .

   **JAW, U.S. Army; B.A., 1950, Norwich University; LL.B., 1957, Har. vsrd Law School; member of the Bars of the Supreme Judicial Court of Massachusetts, the U.S. Court 01 Military Appeals. and the U.S. Supreme court.

   'But see Mmm CODB OF EYIDEN~

   Rile 511 (1942) and UNIWRM RULE OPEVIDENCE

   6S(3) whleh subetantidly change many of the traditional eharaeteristm of farmer testimony.

   * See Hale, The Mksauri Law Relative to the UBB oi Testmany Given at a F o n w T h l , 14 ST. Louis L. RN. 376 (1928).

   See 3 WLDXORE, EYmENCE 8 737(1) (3d ed. 1840).

   'See MCCORYICK, EVIDEKCE 481 (1964).

   A M e1268 1

   in reference to testimony introduced to prove the facts contained in that testimony, bath during the case in chief and during sen-tencing proceedings, which otherwise would be hear say.^ The ex-tent to which former testimony requires identity of issues and parties is dlscussed under separate headings.

   A11 case law under the Lintform Code of Military Justice' ha8 focused on the use of former testimony bl- the prosecution. As it is believed that this will continue to be the only area creating significant problems. such use is considered unless othermse indicated.

2. THE MANUAL RGLE

   In United States district courts and in mast state courts the admissibility of former testimony is governed by case law The military rule for the use of former testimony, set forth in paragraph 145b of the Manual b? the President acting pursuant to his authority under Article 36, UCIIJ, is: b. Former tco!imuny. --\Then st any tr a rehearing or new trial, It appears that either B a T - i i or mAtar) eaurt at a iormer

   the muei were substantially the same (except a farmer trial shown b) the objecting par:r to he void because ai lack of jurisdicrmc) is dead, mane, roo 111 or mhrm to attend the tr.al, heyand the reach ai pmceir more than one hundred miles frarr the place uhere the trial IE t d d . or cannot be found, his testimony m the former trial, if pmper!y pravrd. may he received by the emit if otherwise admmible. except that the pr06eeur10~.ma>- nor introduce iuch iormer teitimany of a v~tneda unless the accused xai confronted aith the v~tness and afforded the right of cross-examination at the former trial and d e s i , in a capital case, tie witnear 15 dead insane or beyond the reach a i pmcess. Carei considered

   143. are also considered "not capital" wmth respect to' a i farmer testimony A failure to abject to the intraduetion ai Teitimonr glvm at B former trial o i the accused on tie ground that the accused i a s not confronted uith the aitnesr and sfforded rhe right of cross-examination at the farmer trial, or on !he ground that ~t doe8 not appear that the witne36 is now unavailable. "as be considered B vaiver of that objeetmn.

   The tedtimo?.y o i a u-ilr.es3 who has testified at a fanner trial mas be

   proved by the official or other admmnble record of former tr181, by an

   3 3 1 ~ 1 i i ~ FOR COLRIJ-YARTIAL. UI~TEO

   SIATCS,

   1561, paia 13% [herein-after cited ai 1lCIl. 1951, and referred to as the Ilanual]. Same authorities do nor regard formr teir.mony a: an exception to the hearsar rule nn the rationale that teifimoni uhich has already been subjected to crori-examma-tian id not hearaay. 5 IVIOIIORE. op a t ~ d p m note 3, 13.0. However theMarual elainhcst.or appeals to be mule C O ~ ~ O P .

   Far a direuriior of the two eiaisifieatlona see McCoehrrcn, op. it. mp70 note 3. at 480.

   1 Here.nafter mted as TC>lJ.

   adminnible copy of so much of such record as contains the testim by an official or otherwise admissible stenographic or mechanical re of the testrmony, or by a person who heard the witness give tile f

   mony and who remembers ail of It, or the substance of all of it, tlr relevant to the topic in question. See 141 8% to pmwng farmer tertimony given through an interpreter.

   If othermie admissible, a depositmn taken for u ~ e or used at P former

   trial by court-martial IS admissible ~n a subsequent trial of the Sameperson on the aame ~smes.

   The limifalianr upon the use of former testimony noted above da nat appiy uith respect to statements made at B former trial, or BL anytrial, which are admiraible under some rnle of evidence other than that authorizing the Lntmductmn of former testimony. Any such statement, for Instance, a voluntary eonfeinion or admission of the aeeueed or an inconsistent statement of a witness, may be proved by an admisiible record or report of the trial at whxh It was made or by any other eompetent evidence.

   As to the me of a record of the proceeding3 of B court of imquiri-, me Article 50, The effect of the w r d r "not capital and not extending to the dismisnal of an officer" BI used m Article 80 is that if the pmseeu-tion uses the record of B court of inquiry to prove part of the allegations in a specification, neither death nor dismissal may be adjudged ni B

   remit of B conviction under that apee>hcation, but other lawfvi punishment may be. The introduction of the record of a court of inquiry by the defense shall not affect the pumihment which m y be adjudged. A perron's "oral testimony cannot be obtained" in the sense of Article 60 if The person IS dead, mane, too 111 or infirm to attend the trial, beyond the reach of process, or cannot be found 7

3. THE PRINCIPLES ZYVOLVED

   Underlying the use of former testimony are principles and policies, not necessarily either reconcilable or apparent. Indeed some are extraiegal and should be sought in the collective uncanscious of the mciety rather than within the conscious framework of the legal system. It may be helpful for the reader to bear in mind a few of the mare obvious principles and policies as he considers the USeS and possible miSu8es af former testimony.

   Plato dubbed necessity the mother of inrention; from the same matrix came former testimony. Fundamental to the use of former testimony is the fact that in eases of actual unavailability, there is often the problem of whether there will be a trial involving the use of former testimony or no trial. Such is the case when a vital witness is dead GF incurably insane. On the other hand, the demands of necessity are far less imperative when the witness ia "unavailable" merely because he ig mme than one hundred miles from the place of trial.

   ' XCM, 1981, para. 146b.*GO n*;e 3

   It is not oniy a principle relating to th- use of former tesw mony, but also a consritutioml requircinenr timi m accused be confionied by the iiitnesses against him. h Pait Ill it will be ahawn that this requirement E satisfied If an accused confronted the wtness at a previous proceeding at which he had an oppoituniry to wms.examiiie the \witness aia%es. Severtheless. UEB of formercused of an opportunity for the court to observe the dmeannr of th? witness.' In weir of the importance appellate courts CUSIO- mariiy attribute to the fact that the trial court or jury obserred the witnesses, it IF stranpe how bath courts andsummarilr dismiss his lass of opportunity when co

   of former testimony against an nccusrii

   the ISSU~S were substantially the same'' helps to aswm that the

   FORMER TESTIMONY

   that an investigation conducted under the provisions of Article 32, UCW, was a former tnal for the purpose of admlssion of testimony of a subsequently unavailable witness," makes it less likely that the accused had a fair opportunity to develop the issues he must face if the former testimony is offered in evidence. More detailed discussion of when the issues are the same and of the types of proceedings that generate former testimony is contained in Part 111.

   The evidence used to prove former testimony should have a high degree of reliability. It is difficult to justify the use of other evidence of the former testimony when an original or a copy of an official record af trial is available and unchallenged as to accuracy." Despite the fact that the record of the former trial probably will alwa5-s be available at a subsequent rehearing,'l under the 1961 Nanual this highly reliable evidence enJoyS no preferred status over the oral testimony of a witness who heard the former testimony, even though under both the 1928'

   The goal of simplicity of legal administration may have influenced the rules of farmer testimony. It is, for instance, much simpler to label as unavailable a witness who is more than one hundred miles from the place of trial than it is to expend the time, expense and effort necessary to produce him at the trial. In such an instance simplicity rather than...