Official Records and Business Entries: Their Use As Evidence in Courts-Martial and the Limitations Thereon

• Author: Lieutenant Donald E. Selby
• Pages: 03

I. INTRODUCTION

Since the advent af the Uniform Code of Nilitary Justice 1 and its companion-in-arms, the Manual for Courts-Martial, 1961, (hereafter referred to as the Manual), legal scholars and practitioners have commented freely on many aspects of military law. Little has been written, however, about the individual rules of evidence in trials by courts-martial. Since many of the rules set forth in the Manual1 are identical with those in civil life, the absence of comment is understandable. In most instances the military lawyer can look to the existing writings of his civilian brothers for interpretation and discussion of the myriad, and sometimes confusing, decisions of the courts. There are, however, some aspects of the military rules of evidence which need clarification either because of their special nature or their frequency of use in courts-martial. One aspect is the use of entries in official records and business entries as evidence in trial by court-martial.

The "official records" and "business entry" exceptions to the hearsay rule of evidence are found in both military and federal law. Contrary to the belief of some attorneys, little difference exists between the federal provisions and the provisions in the Rlanual.4 In fact, the "business entry" provisions in the Manual were based on the federal statute.6 It can be fairly stated that what is often mistaken for a difference in the rule is actually a difference in frequency of use. The very nature of the military establishment, with its constantly changing and shifting personnel and its worldwide bases, creates additional problems for the mili- This article was adapted from a thesis presented to The Judge Advocate General's School, U.S. Amy. Charlattewilie, Virginia. while ths author was B member of the Eighth Adraneed Class. The opinion3 and e~neluaions ex-pressed herein me those of the auther and do not necessarily represent the view of either The Judge Advocate General's School or any other govern. menta1 agency.

**JAGC, U.S. Naiy; LL.B, University of Virginia Law School, 1851.110 U.S.C. g5 801-040 (1968) (hereinafter referred to as the Code or UCMJ).

8 Chap. XXVII, MCM,

1861.8 28 U.S.C. $1733 (1958) (omeiai records) i 28 U.S.C. 8 1132 (1068) (husi-new entries).

(Par. 144b, ICM, 1061 (OWoiai records) i Par. 144% MCM, 1061 (buainen entrier).

6 Legal and Legillative Basis, Xanual for Caurta-Martial, United Statee, 1061, p. 220.

A00 lllm 41

tary lawyer who must present evidence before courts-martial. Trial and defense counsel are almost daily faced with the problem of absent witnesses who have either been transfened or are un-available due to military necessity. As a result, frequent recourse must be had to rules of evidence which will permit counsel to place facts before the courts-martial without the physical presence of the witness having knowledge of those facts. Of necessity, then, the exceptions to the hearsay rule must be used.

An official statement, in writing, made as a record of a fact or event by an individual acting in the performance of an official due, imposed upon him by law, regulation, or custom, to know or ascertain through appropriate and trustworthy channels of information the truth of the matter and to record it, is admissible in evidence before a court-martial to prove the truth of such matters.@ Any writing or record made as R memorandum of record of any act or event, is admissible in evidence before a court-martial as evidence of such act or event if made in the regular course of business at the time of such fact or event or within a reasonable time thereafter. The fact that the person making the entry may have lacked personal knowledge of the matters recorded affects only the weight of the evidence and not its admissibility.?

Every military attorney is familiar with the examples of military records containing entries which may be admissible in evidence under the "official record" exception to the hearsay rule.B The morning report (in the Army and Air Force) and the service record entry (in the Navy) are used daily to prove the offense of unauthorized absence in courts-martial, Specific sanction for such use is found in the Manual, wherein it is stated:

Absence without leave ia umdly prored, prima facie, by entries in the morning report , . . and by entries In the sewice record or unit personnel diary . . . they are evidence . . , of the absence without proper authorit? and attendant facts and eireumitanee~ required B be re-corded . . . .eThus, in the absence of rebutting evidence, the official record or records may prove every element of the offense.

Reason dictates that there must be some limitations as to what matters may be proved under these exceptions. The Manual lists several specific limitations :

The mere fact that a document is an official writing or report does

not, in itieif, make it admissible in evidence to prove the truth of the

OFFICIAL RECORDS AND BUSINESS ENTRIES mattera therein stated. An officisi writing mag be admitted in evidence for this purpose miy when it comes within one of the reeognizsd amp-tiona to the hearsay rule.l0

The official rwordr and business entries must be properly authenticated.,)

Recorda or entrieli of "opinion" are not admissible under either exeep-tion to the hearsay ruie.la

In eonsidering official records, the recording official must not only have had a duty to make an entry as to a certain fact or went but must a180 have had B duQ to how or ascertain the truth of the matter set forth In the reoord.l8

Similarly, it in not auffleient that a psrticulsr businera entry WIU made in the regular course af conduct which had some relationship to business if it was not made in the regular course of husinesa.ll

Neither the official record nor the business ~ntry exception to the

hearsay rule renders admissible in evidence writings or records made principally with a ~ i e w to proseeution.l'

A news account of an incident is not admissible, under either of these exeptiom to the hearsay rule, to prow the ineident.16

In this article the decisions of the federal courts and the United States Court of Military Appeals'? will be examined to determine the extent to which these exceptions to the hearsay rule may be used in courts-martial. An effort will also be made to determine the acooe of aoolication of the limitations on their use a8 set forth in the Manualiand to determine whether any additional limitations have been imposed by the courts."

11. THE OFFICIAL RECORDS EXCEPTION TO THE HEARSAY RULE OF EVIDENCE

A. The Reason for the Ezoeption

Before proceeding to a consideration of the courts' interpretations of the official records exception to the hearsay rule, it would be well to consider the reason for the exception. As in the case of the other exceptions to the hearsay rule, the basis can be generally stated as one of "necessity" and "trustworthiness." However, "necessity" in this case is reduced to a high degree of expediency. Thus it is not required that the public official be shown

10 Par. 1448, MCM, 1951.11 Par. 14Sb(2) (e.)-(f), par. 144% MCM, 1951.1* Par. 144d, MCM, 1951.18 Ibid.

Id Ibid.I6 Ibid.

10 Ibid.17 Hereinafter referred to e.8 Court of Military Appeaia.18 The problem of Buthentieation of oflciai records and buiiineaa entries wlii not be treated in avceesding chapters except PI necessarg to discussion of other limitation..

*M BllOB 4a

to be "unavailable by reason of death, absence, or like circumstances." 1)

Althoigh, then, there is strictly no neCesity far emplofing hemsay,

ID the sense that the personal mtendsnce of the afficer is eoipoidIy impoiiible to obtain, there is neverrhelez8 a high degree of expdiency fhar the pib!ie busmein be not deranged by insisting on the atriet enforcement of the Hearsay rule.SOIn addition there is a great likelihood that a public official would have no memory at all respecting the hundreds of entries that are little more than mechanicaLZ1 In the military sphere there is not only a necessity that the performance of official duty be uninterrupted, but there exists also the recurring problem of absolute unavailability of officers who may have made the entries in official records. The exigencies of the service requiring frequent transfers of personnel and the urgency of military operations dictate that some substitute be utilized for parol testimony.

The influence of the official duty, whether imposed by statute, regulation, or by implication inherent in the official position, to make an accurate statement is considered sufficient to provide the element of "trustworthiness" justifying the acceptance of the hearaay statement.

[Iln the matter8 in which the law of Evidence is concerned, official duty

LI on the whole a vital farce, more potent than might be supposed. evenin B community where official ceremony and dignity are as little regardedas with US. And even if the traditional assnmption of the potency ofoff.eial duly and honor be in some regions or far some ~I~PBDS of in-cumbents more B fiction than a fact, it is at least a fiction we cam hardly afford m our law openly ta repudiate.22It miaht well be added, parenthetically, that the very nature ofthe military establishment, Le., the strict regulatory provisions governing every facet of military business, together with the absolute necessity for rigid adherence to the principles of integrity and honor essential for the maintenance of discipline, furnish an even greater guarantee of trustworthiness.

Official records, or "official statements" as Profeasar Wigmore prefers to delineate them?* were admissible at common law.24 However, many states have enacted specific statutes, either of general application or far limited pu~poses, making official records admissible in evidence. So too, the Congress has provided far the admissibility of official records in the federal caurts.26

~,

.D 5 Wigmore, Evidence D 1631 i3d ed. 1940).

?orbid.

21 Xong Wing Fao I. McGrath, 196 F.2d 120 (9th Cir. 1961). *...