A Supplement to the Suney of Ujiitary Justice

• Author: First Lieutenant Kade H Sides, Jr. and First Lieutenant Jag D Fischer
• Pages: 04

Foreword

"The Survey of The Law-Military Justice: The United States Court of Military Appeals 29 November 1951 to 30 June 1958" appears in 3 Military Law Review 61-115, January 1959. It represents an effort by various officers of the Government Appellate Division, Office of The Judge Advocate General of the Army, to present a concise summary of the principles which evolved from decisions of the Court of Military Appeals during the titled period. The instant supplement to that article constitutes a revision on the basis of cases decided by the Court from the terminal date of the original article to 30 June 1959. However, Section VII, dealing with Sentence and Punishment, is new. Just as the original survey did not purport to cover every question considered by the hiehest military appellate tribunal, nor serve asa substitute for research, so the instant material merely analyzes the case8 regarded BS most significant in the several areas eon-sidered during the survey period.

The opinions, doctrines, and conclusions expressed herein &re those of the authors and do not necessarily represent the opinions or doctrines of the Judge Advocate General's School, the Judge Advocate General's Corps, the Department of the Army or any other governmental agency.

1. PRETRIAL PROCEDURE: CHARGES AND SPECIFICATIONS: AND ARTICLE 51

   During the survey period the Court of Military Appeals had occasion further to articulate the nature and requirements of the Article 32 Investigation. In Cnited States V. Samuels' the Court

   *Firit Lieutenant Sides received his LL B. from Vanderbilt University in 1856 and an LL.M from Yale University in 1056. He 1% a member of the bar of Tennessee. F m t Lieutenant Fiseher received hir LL.B. at Columbia University ~n 1855 and is a member of the bar of the atate of New York. Both authors are member3 of the bars of the Supreme Court of the United States and the Covrt of Mil~tary .4ppeal3. A8 appellate Government eoun~el in the Office of the Judge Advocate General af the Army pursuant to Article 10, Uniform Code a i Pilitan, Juitiee. they have briefed and argued cases on behalf ai the Government before the Court af Military Appeals.

   ' 10 USCXA 206,27 CMR 280.*oo 40848 113

   MILITARY L4W REVIEW

   held that, while the Article 32 Investigation is an ez parte proceeding at uhich the Government is not a formal party, so that traditional evidentiary rules are relaxed, it is nevertheless judicial in character and is designed both to serve as B discovery proced-ure for the accused and to ascertain the probability of the truth of the charge8 Accordingly, while statements of legitimately unavailable witnesses, to be admissible at the Article 32 hearing, need not qualify as depositions, it is error to admit them if they are neither sworn nor affirmed; and, charges predicated upon such evidence may be reversed where a timely objection has been voiced at the Article 32 hearing and made the basis for a motion for appropriate relief at triaL2

   Regarding the unavailability of witnesses at the Article 32 pro-ceeding, the Court of Military Appeals has issued a caveat that the circumstances of unavailability should be disclosed by the investigating officer.' It is clear, however, that a determination of unavailability will be honored on appeal unless appropriate relief was sought and erroneously denied at trial.'

   Care must be taken by those charged with administering miiitary justice at the trial level to avoid pretrial activities which might be said so to align such officials with the prosecution so as to impair or cast doubt upon their capacity impartially to perform the post-trial judicial functions required of them Thus a convening authority who grants immunity to a prosecution witness,j and a staff judge advocate who promises to recommend clemency for one co-conspirator if he will be a prosecution witness in the trial of his accused confederate,O are disqualified to perform their respective past-trial functions in such cases. This disqualification, however, affects only the individual, and does not extend to the office, and absent B showing that the same individual undertook both the partisan and the judicial functions, there is no disqualification.'

   Two cases concerning charges and specifications decided during the period under consideration warrant mention here. The amendment of a specification to a charge of wartime desertion so as to reflect the date and manner of termination is not the preferring of a new charge and does not destroy the efficacy of the

   'lbids Id. at 212.' United States V. Farriaan, 10 USCMA 220, 27 CMR 284 'United States V. Whlte and Sirpiem, 10 USCMA 63, 21 CMB 137. 'United States V. Albright, 9 USCMA 628, 26 CMR 403.-United States V. Giliiiand, 10 USCPA 343. 27 CPR 417.

   114 AGO 40148

   MILITARY JUSTICE SURVEY

   original charge ta toll the statute of limitatione. Accordingly, the statute of limitations may not be invoked to bar trial upon the original charge as subsequently amended after the period of limitation.8

   It is now settled in the military that larceny by cheek can be committed with a past-dated check, if the drawer intends that insufficient funds shall be on deposit for payment upon presentment. The fraud consists in the misrepresentation of an existing intention.@

   In according its wanted attention to Article 31 issues. the Court of Military Aipeals during the survey period enlarged the scope of the retributive consequences flowing from a violation of that Article, and also reemphasized the Article's general inapplicability to interrogators not subject to the Code. Thus, not only is a statement obtained without the requisite warning, and by promises of confidentiality, inadmissible against the declarant in a trial by court-martial, but evidence derived from the inadmissible statement is equally tainted.'O

   It is now settl~d that civilian law enforcement officers not subject to the Code and not acting as agents of the military-whether such officers be fareign," local,12 or federalla--are not required to provide the warning prescribed by Article 31. And voluntary statements obtained by such officers without a warning of rights are admisaible before a court-martial, regardless of the admissibility under the iaw of the jurisdiction of which the investigator is an ~fficial.~'

   Of course, the services cannot escape the requirements of Article 31 by having third parties act for them or an their behalf in crime detection work. However, where the Army does no more than furnish the Federal Bureau of Investigation information to aid in the identification, location and apprehendon of a deserter suspect, FBI agents do not become agents of the military so as to require a warning of rights."

   'United States V. Span", 10 USCMA 410.27 CMR 484.'United States V. Cummins, 9 USCMA 668, 26 CMR 449.

   "United States V. Haynei, 9 USCMA 792. 27 CMR 60. (This ease over-ruiedthe dictum appearing in United Staten Y. Fair, 2 USCMA 621, 10 CMR19, mdicatmg that real evidence derived from an in-dmiaaibie statement is admiesible into evidence.)

   United States V. Girahsm, 4 USCllA 694, 16 CMR 268 (an opinion of the late Judge Brarman, the principle of whleh survived the reconstitution ai the Court and served as the basis far two deeirioni during the survey period).

   "United States V. Dial. 9 USCXA 700. 26 CMR 480.

   I"

   United States V. Holder, 10 USCMA 448, 28 CMR 14."Knited States Y. D i d BUPIO.

   "United States V. Holder. mpia

   *oo "0348 113

   11. CORIXASD INFLUENCE AND JURISDICTION

   A convening authority's expression of a verdict or sentence Preference, and its impact upon the discretion of the court-martial, continue to receive the close attention of the Court of Military Appeals. Thus, where the court-martial is apprised, through the admission of a service record extract, of a commander's dissatisfaction with the omission of a punitive discharge from a sentence adjudged far the accused's farmer conviction far larceny, the court's inclusion af a bad conduct discharge in a sentence for escape from confinement is too Suspect to permit affirmance.' An over~ea~commander's legitimate concern, however, over the incidence of rape by members af his command, even though this concern finds expression in remarks made to his staff in conference, does not constitute command control where the tenor of the remarks indicates that the commander, though abhorring the crimes, is not so "panicked by the civilian community's outrage" that a conviction or a particular punishment is sought or desired by him.?

   Not only may direct influence by officials in a close command relationship to the members of the court constitute unlawful cantrol, but policy pronouncements emanating from more remote levels of command, if brought to the attention of the court-martial, may have a similar effect. The policy announced, for example, in the Sara1 Supplement to the PIIanual, that confinement in excess of three months or a punitive discharge should be accompanied by reduction in grade, cannot lawfully be injected by the law officer into the sentence deliberations of the court-martial.q To be distinguished, however, are such innocuous departmental policies as that of the Savy requiring convening authorities in guilty plea cases to elaborate upon the circum-stanced of the offense for the benefit of appellate authorities.'

   The Court considered a number of jurisdictional questiane during the sur~ey period. In two cases challenges to court-martial jurisdiction over persons not on active duty in the armed forces were rejected. Thus. discussing the significance of Reid v. Cocert,' the Court held a civilian dependent accompanying the armed forces overseas subject to trial by court-martial for a nan-capital

   x United Staten Y Coffield, 10 VSCMA 77, 27 CPR 151

   ' Cmted Stater V. Hurt, 9 rSCllA 735, 761. 762. 2: CMR 161 'Cnited Srater Y. Chaate, 8 USCYA 680, 26 CYR 460 'United States V. Webster, 8 CSCYA 615, 26 C\IR 396' 364 U.S 1. 1 Led 2d 1148. 77 S Ct 1222 (1862)

   116 AGO

   ...