The Fast-Changing Law of Military Evidence

• Author: by Robinson O. Everett
• Pages: 03

Many fields of law can today be described as fluid and fast-changing. Military law, however, would seem to hold a paramount title to such a description. For instance, before one's eyes military jurisdiction can appear and then disappear in the same case as fundamental principles are judicially altered.' Insofar as matters of evidence are concerned, this fluidity is especially discernible-as will be obvious from an examination of some opinion8 rendered by the Court of Military Appeals during the past decade.

1. DEPOSITIONS

   Courts-martial, unlike civilian courts in criminal cases, have long been accustomed to receiving as evidence depositions offered by either the prosecution or the defense; and Article 49 of the Uniform Code of Military Justice specifically authorized this practicce In United States v. Sutton: the Court of Military Appeals ruled in a split decision that even a deposition taken solely on written interrogatories could be used by the prosecution despite defense objections. The majority based this result on certain "necessities of the service"'--such as the transient nature of military pereonnel and the importance of avoiding interference with combat operations that might result from bringing witnesses into court.

   Chief Judge Quinn, dissenting, insisted that service personnel "are entitled to the rights and privileges secured ta all under the Constitution of the United States, unless excluded directly or by

   *The opinions and eonelnsions presented herein are those of the author and do not neeenianly represent the Views of The Judge Advocate General's School or any other governmental agency.

   **Visiting Assoelate Prafenbor of Law, Duke University Law School: Former Commissioner, U.S. Court of Military Appeals; LL.B., Hsrvard Univerdty: member of North Carolina and District of Columbia Bars; Attorney. Durham. North Carolina, and Washington, D. C.; author, Military Justice in the Armed Farces of the United States, and numerous other legs1 articles.

   I See Kinsella v, Kmeger, 351 U.S. 470 (1868) : Reid V. Covert, 351 U.S. 487 (1966); and Reid V. Covert, 364 U.S. 1 (1967). Everett, .UiIitaw JuriP-dirtion Over Civiltam. 1860 Duke L. J. 366.

   *IO U.S.C. 8 849 (19E8).*3 USCMA220.11 CMR220 (1963).

   4 Id. at 225-6,11 CMR at 225-6.

   *The opinions and eonelnsions presented herein are those of the author and do not neee~iarily represent the Views of The Judge Advocate General's School or any other go

   **Visiting Assoelate Prafenbor of Law, Duke University Law School: Fomer Commissioner. U.S. Court of Militsrv Aooenls: LL.B.. Hsrvard Uniwrdti; member of North Carolina and Di&t bi Columbia Bars; Attorney. Durham. North Carolina, and Washington, D. C.; author, Military Justice in the Armed Farces of the United States. and numerous other lees1 articles.

   necessary implication, by the provisions of the Constitution itself,"6 that among these is the right of confrontation in accord with the Sixth Amendment, and that the use of written interroga-tories Over an accused's objection deprived him of this right. As was noted previously, it w a ~ not made clear in his Sutton dissent whether Chief Judge Quinn would consider the presence of the accused himself at the taking of a depoaition to be a prerequisite for effective croas-examination.'

   After the death of Judge Brosman and his replacement by Judge Ferguson, another attack was launched against prosecution use of depositions taken on written interrogatories, but in l'nited States v. Pavrkh,' the previous rule wss adhered to. However, some of the subsequent opinions of the Court of Military Appeals led to the observation a year ago that, "In the long run there may occur B substantial diminution, or even the virtual abolition of the written deposition in courts-martial-the very result so fervently advocated b - Chief Judge Quinn in the Slitton case." 8

   This "virtual abolition" of the deposition taken on written inter-rogatories came more swiftly-and more directly-than had been anticipated. In Cnited States V. Jacobv? the Government had notified defense counsel of its intent to take certain depositions upon written interropataries. Defense counsel objected and urged that, in order ta preaerve the accused's right to confrontation, the witnesses should either be produced at the trial or their oral depositions should be taken. This defense pretrial request having been denied, objections were unsuccessfully interposed at the trial; and, on appeal, it was contended that the previous interpretation of Article 49 by the Court of Xiiitary Appeals had produced a conflict xq-ith the Sixth Amendment. Judge Fergusan, writing for the majority, accepted the paaition of the Sutton dissent that servicemen are entitled to the protections of the Bill of Rights, except those which are expressir or by necessary implication inapplicable. In order to conform to the requirements of the SixthAmendment, he re-interpreted Article 49 of the Code as demanding that the accused be present for the taking of any deposition from a prosecution witness and that he have the opportunity,

   6 Id. at 223, 11 CXR at 228.6 E\erett, The Role of the Deposition in .MilitarV Jwtice, Yil. L. R~T., 7 7 USC11.4 331, 22 CMR 121 (19S).8 Elerett. mpmmte 6, at 136. See also United States Y. Daniels, 11 USCMA 811 USCYA428,29CMR244 (1960)..

   hvary,

   1960, p. 131 at ias.

   62,ZS CMR 276 (1050).

   LAW OF MILITARY EVIDENCE

   through counsel, to cross-examine the witness. However, the majority did conclude that, by reason of "the exigencies of the military service" and in light of the history of military depositions, the Sixth Amendment should he construed as allowing courts-martial to receive in evidence oral depositions which had been taken with the accused present.10

   In criminal trials in federal civilian courts, there is no statutory authority for the prosecution to offer either written or oral depositions in evidence against the accused.11 Thus, in any event, the use of depositions by the Government before a court-martial will differ from the civilian practice-this difference being justified in Judge Ferguson's opinion by reason of the "exigencies" involved. Same would argue, as did the majority in Sutton, that them same "exigencies" justify a further departure from the uaual federal practice contemplated under the Sixth Amendment. Such further divergence from the civilian norm could consist in allowing the use of depositions on written interrogatories or else in requiring only that defense counsel be present and not that the accused be there. Perhaps, though, it is just as well to preclude the taking of a written deposition by the Government in all casea where the accused objects,'z instead of having a case-to-case attrition of the written interrogatory as had been expected by this writer a year ago.

   Under the new rule there will be considerable difficulties for the prosecution. Sometimes it will be difficult and expensive to arrange for aceused and his counsel to go to some distant spot to take the deposition of an absent witness, and especially will this be so if the accused is in pretrial confinement.'s Occasionally it

   lOThe Court discussed especially Mattor 7, United States, 156 U.S. 287(18951, and llotes V. United States, 178 U.S. 458 (1900). The former ease held admiasible testimony which witnesses, later deceased, had given at II

   p~evious trial. The latter refused to admit evidence given at a preliminary hearing before a United Statea Comminnioner bg B witnew who had later disappeared. Compare United States Y. Eggers, 8 USCMA 191, 11 CMR 191 (1958). See slso Everett, Military Justice in the Armed Forcer of the United States 20E-6 (1956).

   II See dissenting opinion of Judge Latimer in United States V. Jaeoby, supra note 9.l2In capital cases an accused must consent-not merely fail to object-to introduction of B deposition by the Government. See United Staka 7. Young, 2 USCMA 470, 9 CMR 100 (1953). Apparently an aceused must object In order to obtain the beneflt of the Juoby rule. United States V. Howell, 11 USCMA 712,29 CMR 528 (1960).

   IS Fortunately the Armed Services have mads many efforts to reduce the me of pretrial confinement of an accused, and BO this in not so likely to be B problem as might have been the ea~est one time. There is. however, no pro. riaion in military law far Ideasing en acouaed on bail from pretrial aonlne ment.baa 'IPOB 01

   may be difficult to arrange for the presence of an experienced reporter or stenographer to transcribe the oral deposition; on the other hand, under the previous practice the answers to written interrogatories could be easily written or typed in on the form provided. Frequently it will be easier and cheaper to transport the witness to the scene of trial, rather than transport the accused and other necessary individuals to the witness's residence, although obviously this choice is not available with respect to a recalcitrant foreign witness. Some objectives can still be accomplished by the prosecution through the use of depositions. For instance, it often will be desirable to take the depositions of personnel who are in ill health, scheduled for transfer, or awaiting discharge from the armed services.1'

   In a previous article, this writer discussed the extent to which the defense could compel the prosecution to subpoena B defense witness to give personal testimony before a court-martial, instead of accepting the presentation of his testimony by a deposition.1' If, however, a defense deposition is to be taken, must the accused be alloved to be present at the time to suggest queations to his counsel? The Court of Military Appeals in Jaeoby interprets Article 49 of the Code as requiring that an accused be present for the taking of a deposition, and, although the opinion is concerned with depositions taken at the request of the prosecution, it should be noted that, with one exception not here material.16 this Article of the Code does not differentiate between depositions of prosecution...