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Where there is no verbatim record of the proceedings,16 the party must execute in writing an acknowledgment that he had been informed of and permitted to exercise his party rights. He must further indicate any waivers thereof.17

The investigating officer or board counsel should not consider the proceedings as adversary proceedings. He must not view himself as a prosecuting attorney and should not treat the party as an accused in court-martial proceedings. The investigating officer is not the trier of facts but rather an impartial gatherer of facts.

The investigating officer should be aware of the party's interests and when it appears that the party obviously does not understand what is happening and is not properly exercising his rights, it would not be remiss for him to again remind the party of his rights. In line of dutyconduct investigations wherein it is evident that the party has incurred a permanent disability, such action is strongly recommended.

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PARTY RIGHTS Section 0304a of the Manual of the Judge Advocate General affords a party to an investigation the following rights. (Comments will be included where appropriate.) 1. “To be given due notice of such designation". 2. "To be present during the proceedings but not when the investigation is clear for deliberation."

A party has the right to be present whenever hearings are held or testimony is taken. However, this right is not extended so as to require the presence of parties whenever the investigating officer privately confers with, questions or elicits statements from witnesses. The party is entitled to examine these statements and can question the

witnesses himself. 3. “To be represented by counsel."

A party may be represented by civilian counsel if provided by him or by military counsel of his selection. A party is entitled to military counsel of his own selection if reasonably available. A party to a JAG Manual investigation does not have the absolute right to lawyer military counsel (qualified in accordance with Article 27b, Uniform Code of Military Justice) unless the investigation is also serving as an Article 32, UCMJ, pre-trial investigation.18 In a Court of Inquiry or formal board, legal counsel should be made available if practicable; in an informal investigation, legal counsel should be provided if reasonably available.19 What

do these terms mean and to what degree do they differ? No concise distinction is available. However, in view of the greater importance and gravity associated with formal proceedings as opposed to informal investigations, the if practicable test should be construed more liberally than the reasonably available test. Thus lawyer counsel should more readily be made available to those people designated as parties by a formal board as opposed to an informal investigation.

As a practical matter, convening authorities when requested have been making legal counsel available to parties designated by courts of inquiry and formal boards of investigation; many problems which otherwise might be encountered have thus been avoided.

Most difficulties relating to the question of the availability of legal counsel occur in informal investigations. Frequently, they involve situations requiring a line of duty-conduct determination on a permanently disabled active duty member. If the man is denied legal counsel and an adverse determination is made, the man often will retain civilian counsel and possibly seek congressional assistance. Invariably he will request that the matter be reconsidered and may submit information not previously evaluated which will require further investigation. He may claim that as he was not initially assigned qualified legal counsel, he was unable to effectively present his case or his serious physical condition may have prevented him from participating in the investigation. As an adverse line of duty-conduct determination may result in substantial loss of benefits to a permanently disabled service member, it is recommended that requests for qualified legal counsel be honored whenever practicable, especially in those instances where an adverse determination is indicated. Similarly, in those instances when the disabled service member is physically unable to participate in the investigation and an adverse determination is indicated, the convening authority should make every reasonable effort to appoint qualified legal counsel to represent the individual.

37 U.S. Code 802 precludes any active duty Naval person who is absent from his regular duty for a continuous period of more than one day because of a disease that is directly caused by and immediately follows his intemperate use of alcoholic liquor or habit forming drugs from receiving pay for such a period. Frequently, large amounts of money may be involved when hospitalization or disability lasts for several months as frequently occurs with liver ailments and nervous disorders directly attributed to intemperate use of liquor and habit forming drugs. In such situations, an adversely affected service member may well seek financial relief in the federal courts or request reconsideration by the Judge Advocate General, especially if he did not have the services of legal counsel in the initial proceedings. It must be emphasized that the issue of causality which often arises in

16. The record of the proceedings must be verbatim if the inves

tigating body is a Court of Inquiry or formal Board of Investiga

tion. JAG Manual, secs. 0435, 0506. 17. JAG Manual, sec. 0304e. 18. JAG Manual, sec. 0304b. 19. Ibid.


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and 5. "To testify as a witness.”
dot determinations under this statute requires a de-

Article 31, Uniform Code of Military Justice. A

military investigation other than a court of inquiry gree of legal expertise which nonlegal counsel

cannot compel a non-military party to testify.” normally does not possess.

Similarly, in those situations where a party's 6. “To refuse to incriminate himself, and to re-
performance of duty is under inquiry and an ad fuse to make any statement regarding any of-
verse recommendation may for all practical pur fense of which he is suspected.”
poses terminate the party's career advancement,

7. “To make voluntary statement himself, oral counsel should readily be made available.

or written, to be included in the record of prooppa Although a party who has been issued a puni

ceedings or investigative report.” tive letter has the right to appeal and seek the aid

8. "To make an argument at the conclusion of of counsel, representation by legal counsel in the

presentation of evidence." COL initial stages would facilitate the entire matter in

Suck argument may be written or oral, sworn that it would discourage appeals where they are

or unsworn, and need not follow any particular unwarranted.

format. Other situations, depending on the individual circumstances, may require that the convening In courts of inquiry, a party has two addiauthority make available legal counsel. It is read tional rights: ily apparent that because of the limited number of

1. “To challenge members of the court of inquiry law specialists, it is often not possible to assign a

for cause stated to the court.' party legal counsel though the command is eager to

2. “If charged with an offense, to be a witness at his do so. An examination of court decisions as well

own request and not to be called as a witness in the as congressional inquiry into military matters over

absence of his own request.”
the past decade strongly warrants the conclusion
that whenever possible, convening authorities

In addition, if the investigation is inquiring should make legal counsel available to those parties

into the circumstances surrounding the disease who stand to lose property or personal rights. In or injury of a member of the armed forces, the the event that the convening authority is unable service member must be advised that he cannot to provide legal counsel he should include an ex be required to sign a statement relating to the planation in his endorsement to the investigative

origin, incurrence or aggravation of any disease report.

or injury he may have. Any such statement Dreve 4. "To cross-examine witnesses."

against his own interest which an individual is In board proceedings whenever witnesses are

required to sign without first receiving this called to testify, each party is entitled to cross

warning is invalid.25
examine each witness. The normal strict rules of
evidence used in courts-martial do not apply to

Similarly, any adverse evidence obtained investigative proceedings, but rather the scope of

solely as a result of such a statement will also cross-examination should be of considerable lati

be considered invalid. tude. Nevertheless, despite the liberal rules of evi If the investigation is to be used as a pretrial dence, non-material and degrading matter not investigation under Article 32, Uniform Code pertinent to the investigation as well as cross of Military Justice, the party is entitled to a recrimination should not be permitted. If witnesses copy of the record,26 otherwise there is no manare not called to testify at a hearing but rather are datory requirement that a party be given a copy interviewed privately, parties do not have the ab of the record although the party must be persolute right to be present for cross-examination.

mitted to examine the investigative report upon However, the party must be afforded the opportunity to question such witnesses and submit state

its completion. ments elicited from them as evidence.

Section 0304e of the JAG Manual requires

that in those proceedings wherein a verbatim If the party is charged with an offense relating to

transcript is not provided, the substance of the the matter under investigation, he cannot be com

advice given to a person designated as a party pelled to testify at a court of inquiry unless at his

should be reduced to writing and that the party own request; subject to this exception the party shall acknowledge therein that he has been may be called as a witness and he must take the

informed of his rights and indicate any waivers stand and testify, however, he cannot be compelled thereof. to incriminate himself, to answer questions which

Far too frequently, parties are requested to tend to incriminate him or to make a statement or

sign acknowledgements of their rights with produce evidence, the contents of which is nonmaterial to any issue under investigation and may

waivers thereof at the outset of the investigatend to degrade him. If such party is suspected 22. JAG Manual, secs. 0417, 0509. of an offense he must be warned of his rights under

23. JAG Manual, sec. 0414 ; see MCM, 1951, par. 62f.

24. JAG Manual, sec. 0305. 20. JAG Manual, sec. 0305a.

25. JAG Manual, sec. 0306. 21. JAG Manual, sec. 0305b.

26. JAG Manual, sec. 0304f.

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tion. Occasionally, an investigation may un the necessary acknowledgement as required by cover information which will tend to implicate section 0304e of the Manual of the Judge Advoa party to a far greater degree than he initially cate General. anticipated; or testimony may be offered where If the investigative report lacks only the forin a witness tends to wrongfully place the entire mal acknowledgement, the convening authority blame for the incident on a particular party. will be requested to obtain one. Difficulties and Under such circumstances, a party may not unnecessary delay may result, inasmuch as the know what rights he will desire to exercise or party may have been transferred, may refuse waive until he studies all the adverse evidence to submit the acknowledgement, or may have accumulated by the investigating officer.

been discharged from the service. No legal ad. As soon after his designation as practicable, verse opinion relating to line of duty-misconduct the party should be informed of his rights and will be rendered by the Judge Advocate General

POR should execute a detailed acknowledgement that absent such written acknowledgement unless the he was so advised. The party should not be report contains indisputable evidence (e.g., afrequested to indicate those rights he intends to fidavits) that the party was accorded his rights exercise and those he intends to waive until he and permitted to exercise those not waived. has had the opportunity to examine all the ad. Failure to accord party rights to a person verse evidence accumulated by the investigation. whose conduct becomes subject to inquiry may For only then can he make a proper election preclude use of the record as evidence and may regarding party rights, at which time he should require return of the record to the convening execute a dated acknowledgment disclosing authority to permit the member to make a statethose rights waived, those rights accorded and ment in rebuttal concerning any recommended those rights not waived and not accorded. In adverse action other than disciplinary action, the event the party indicates that he was not and if he makes substantiated contentions which permitted to exercise certain rights, and preju are not repudiated in the record, further indice is shown thereby, the issue will normally be vestigation may be required.27 resolved in the party's favor. However, it is Section 0304d of the JAG Manual by its innocrecognized that a party though offered the

uous language offers little criteria whereby the opportunity to exercise certain rights may un

effects of a failure to provide party rights can reasonably procrastinate with the result that

be accurately measured. It contains no procompliance becomes impossible. Once a party

visions for persons who have a “direct interest" has been advised of his rights, it is incumbent in the investigation. It does suggest that it is on him to take positive action regarding the exer not always fatal to deny a party his rights and cise of those rights, and the investigating officer

that under certain unspecified situations adshould make this clear to the party. If it is

verse determinations may be made although a evident that the responsibility for the failure to

party has never been afforded the opportunity exercise certain party rights rests primarily to submit evidence in his behalf. It thus fails with the party, then the party's actions will be

to provide any guidelines to the question considered tantamount to a waiver of those

“when?” which is raised by its permissive lanrights. Any information of this nature should

guage. Nevertheless, the actual policy followed be noted in the preliminary statement of the

is one which strives to insure that a party is investigative report.

given the opportunity to fully exercise his rights. If additional investigation is ordered by

In each situation where an adverse determi. reviewing authority and further adverse infor

nation may result and a party has not been acmation is adduced, the party is again entitled

corded his rights, either in part or in toto,

the to the full exercise of his rights and an appro

Judge Advocate General as a matter of course priate signed acknowledgement should be ap

will return the report requesting that the party pended to the additional investigation.

be accorded those rights which he does not

choose to waive. Admittedly, at the stage when FAILURE TO ACCORD PARTY RIGHTS

subject report is received by the Judge Advocate The provisions relating to party rights have General, it has passed through the chain of been enacted to be used rather than abused. command and a considerable time period has Far too frequently, investigative reports con elapsed. As a result, witnesses or physical evi. taining adverse party determinations will be dence may be unavailable. It is thus evident submitted and the party either has not been ac

(Continued on page 82) corded his rights or the report fails to contain 27. JAG Manual, sec. 0304d.



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FOR THE PURPOSES of this article, let us


assume that you are sitting as a member

of a court-martial or, perhaps, you have been

is to appointed as a counsel to prosecute or defend


an accused being tried by a military court. At

the trial the accused pleads guilty. His plea of

guilty is fully explained and it is accepted by


the court as voluntary and provident. Can the

Doren accused, thereafter, at any time, during his trial,

ease change his plea to not guilty, so as to place the

traditional burden upon the government to prove

y at his guilt of the offenses charged? Or, suppose,

after the same guilty plea, the law officer (or

rther president of a special court-martial) deter-

mines, for no stated reason, to change the plea

its it to not guilty. This despite a clear insistence by

reb: the accused that he is guilty, and that his plea is

ghts made understandingly and providently. Can

nor his guilty plea be changed to not guilty over his

intere insistent objections? Can he change his guilty

that is plea at will? Can it be changed against his

ghts will? Does the accused have a right to refuse

or to obtain a change of his guilty plea? At

thouse first glance, it would seem that an accused, “pre-

worten sumed to be innocent until proved guilty", could

huss always, at any time (and for any reason),

change his plea to not guilty. Such is not the

case. Similarly, it would seem that an accused

follow ought to always be able to "bare his soul” and

party “repent” by the route of a judicial admission of

guilt. This also is not true—as we shall see.

Digressing somewhat from our specific in-

bees' quiry, we note that paragraph 70b, MCM 1951,

and Article 45 of the Uniform Code of Military

E cou Justice, provide us with certain beginning guide-

lines related to situations involving the change

of a guilty plea. Paragraph 706, MCM 1951,

at page 107 provides, in applicable part:


an accused, in the course of trial following

a plea of guilty, makes a statement to the court, in his


testimony, or otherwise, inconsistent with the plea, the
court will make such explanation and statement as the
occasion requires. If, after such explanation and
plea, it appears to the court that the accused in fact
entered the plea improvidently or through lack of
understanding of its meaning and effect, or if the
accused does not voluntarily withdraw his inconsistent
statement, the court will proceed to trial and judg-
ment as if he had pleaded not guilty. When, after
a plea of guilty has been received, the accused asks to
be allowed to withdraw it and substitute a plea of not
guilty or a plea to a lesser included offense he should

be permitted to do so.... (Emphasis supplied)
Article 45 of the Uniform Code of Military Jus-
tice provides :

(a) If an accused arraigned before a court-martial

makes any irregular pleading, or after a plea of guilty

sets up matter inconsistent with the plea, or if it

appears that he has entered the plea of guilty im-

providently or through lack of understanding of its

meaning and effect, or if he fails or refuses to plead,

a plea of not guilty shall be entered in the record, and

the court shall proceed as though he had pleaded not

guilty. (b) A plea of guilty by the accused shall not

be received to any charge or specification alleging an

offense for which the death penalty may be adjudged.

(Emphasis supplied)

Reading these two sources of military law to-

gether, it would appear that they both state that

in the event of an unresolved inconsistency fol-

lowing a guilty plea or a determination that the

prior guilty plea was entered involuntarily, im-

providently or through lack of understanding,

the guilty plea shall be changed to not guilty.

Although only generally applicable, and not

within the specific scope of our inquiry here, the

decisions of the Court of Military Appeals are

legion declaring that a post-plea showing of in-

consistency, involuntariness," improvidence, or

1. MCM, 1951, par. 70b.

2. UCMJ, art. 45, 10 USC 845.

3. United States v. Stanaway, 12 USCMA 552, 31 CMR 138 (1961);

United States v. Hamill, 8 USCMA 464, 24 CMR 274 (1957);

United States v. Welker, 8 USCMA 647, 25 CMR 151 (1958).

4. United States v. Butler, 9 USCMA 618, 26 CMR 398 (1958);

MCM, 1951, par. 70a.

5. United States v. Henn, 13 USCMA 124, 32 CMR 124 (1962);

United States v. Fernengel, 11 USCMA 535, 29 CMR 351 (1960).

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lack of understanding requires a change of a guilty plea to one of not guilty at trial, or, on review, action which is not incompatable therewith. Such "curative" action, on review, may require dismissal of the charges, dictate a rehearing 8 or permit approval of an “uncontaminated" lesser included offense.' Article 45, UCMJ, extends this required action to situations, also of no particular applicability to our accused here, involving irregular pleadings, failure or refusal to plead, and to offenses involving the death penalty. There is a particular interest, however, with regard to our specific area of inquiry, in that portion of paragraph 70b declaring that where an accused "asks to be allowed to withdraw" his guilty plea and substitute therefor a plea of not guilty or a plea of guilty to a lesser included offense, “he should be permitted to do so."

Returning to the specific question at hand"does an accused have an absolute right to refuse or to obtain a change of his guilty plea?”— let us first turn to the less frequent of the two situations, wherein the accused's guilty plea is changed, contrary to his objections and his insistent declaration of providency and understanding, to one of not guilty. The rule expressed in paragraph 70a of the Manual for Courts-Martial states, unqualifiedly, that "the court may refuse to accept the guilty plea." 10 The law officer (or president of a special courtmartial) has a duty to make decisions 11 and an absolute right to refuse to accept a plea of guilty regardless of a claim or appearance of providency, understanding or voluntariness. The accused has no vested interest in a guilty plea and a withdrawal of that plea against his desires can effect no legal prejudice with respect to the findings.12 As our courts have recognized that "findings and sentence are completely separate and distinct portions of military judicial procedure”,13 the only possible prejudice, at a trial, “then and there in progress”, might be one related to the sentence because of the existence of a pretrial agreement and a deprivation

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of its beneficial punishment limitations.14 This relatively untroublesome obstacle, however, is [ RECE "curable", if appropriate, by action reducing an adjudged sentence which exceeds a pretrial agreement. Notice the phrase "then and there in progress." The only foreseeable limitation on this absolute authority to enter a not guilty plea is in the case of a rehearing ordered as to the sentence only. Although not squarely de I a cided, there is some indication ("aside" comment, rather than ruling) that the rehearing court, in that instance, may be powerless to extend the rehearing order to a trial of the accused as to his guilt or innocence.15 Therefore, except possibly at a directed rehearing on the sentence only, the law officer (or president of a special court-martial), may, for reasons stated, or for no reason at all, change a guilty plea to one of not guilty, even though an accused may honestly and logically insist to the contrary. While, certainly, a “sound” guilty plea should not normally be changed arbitrarily or capriciously, the accused, nevertheless, has no legal standing to prevent such a change from being made.

On the other hand, however, where the accused requests to be allowed to change his plea to not guilty there are additional considerations. As well stated in the Friedman case : 16

The issue of a defendant's guilt or innocence is not involved in an application for leave to withdraw a plea of guilty. Upon such an application a trial court is not required to try the issue of guilt or innocence. The issue for determination is whether the plea of guilty was voluntarily, advisedly, intentionally and understandingly entered or whether it was, at the time of its entry, attributable to force, fraud, fear, ignorance, inadvertence or mistake such as would justify the court in concluding it ought not to be permitted to stand. 17

In the Friedman case, the accused was found guilty on his guilty plea and awarded a maximum sentence. Two days later he moved to vacate his sentence so he could withdraw his plea and stand trial. His reasons were that he misunderstood the seriousness of the offenses charged and that his counsel had advised him that he would only receive a small fine. The trial court denied the application. The Circuit Court of Appeals sustained the trial court's denial, declaring that there was no legal right

(Continued on page 83) 14. CM 397051, Skinner, 24 CMR 427 (1957); CM 395163, Yelverton,

26 CMR 586 (1958). 15. United States v. Kepperling, 11 USCMA 280, 29 CMR 96 (1960);

CM 397509, Collier, 26 CMR 529 (1958). 16. Friedman v. United States, 200 F.2d 690 (8th Cir. 1952).

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6. United States v. Zemartis, 10 USCMA 353, 27 CMR 427 (1959);

United States v. Harrell, 14 USCMA 517, 34 CMR 297 (1964). 7. United States v. Stanaway, supra note 3; United States v. Wille,

9 USCMA 623, 26 CMR 403 (1958). 8. United States v. Henn, supra note 5; United States v. Hamill,

supra note 3. 9. United States v. Epperson, 10 USCMA 582, 28 CMR 148 (1959). 10. MCM, 1951, par. 70a. 11. United States v. Wilson, 7 USCMA 713, 23 CMR 177 (1957). 12. CM 401819, Scarbrough, 28 CMR 527 (1959). The concurring

opinion, however, suggested that a court should not act capri

ciously or arbitrarily. 13. United States v. Miller, 10 USCMA 296, 27 CMR 370 (1959).

17. Id. at 696.

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