The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field.

The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as the views of the individual authors, not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other Agency or Department of Government.

Invitations to submit articles are extended to all persons, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed. No

compensation can be paid for articles accepted and published.

Issuance of this periodical approved in accordance with Department of the Navy Publications and Printing Regulations, NAVEXOS P-35.

REAR ADMIRAL WILFRED A. HEARN, USN Judge Advocate General of the Navy

REAR ADMIRAL ROBERT H. HARE, USN Deputy and Assistant

Judge Advocate General of the Navy

COMMANDER GARDINER M. HAIGHT, USN Editor

For sale by the Superintendent of Documents U.S. Government Printing Office, Washington, D.C. 20402 Price 25 cents (single copy). Subscription price $1.25 per year : 50 cents additional for foreign mailing.

The August 1961 issue of the JAG JOURNAL was the most popular ever printed in terms of demand for copies. That issue was devoted to the publication of unofficial changes to the Manual for Courts-Martial, U.S., 1951, brought about by decisional law of Boards of Review and the Court of Military Appeals.

The demand was so great that, in spite of additional printing runs, for some time it has been impossible to obtain copies from any source whatever.

The office of the JAG JOURNAL has recently received a great quantity of this issue. Should you desire any number of copies, address your request to Editor, JAG JOURNAL, Office of the Judge Advocate General, Department of the Navy, Washington, D.C. 20350. There will be no charge.

A revised Manual for Courts-Martial is presently being prepared. Upon its publication, it will supersede the 1951 Manual and all changes thereto. Until that time, the August 1961 issue of the JOURNAL may be of some assistance.

Two caveats are necessary. First, inasmuch as it requires an Executive Order to effect an official change to the Manual, it must be borne in mind that the changes in the JOURNAL are only unofficial. Secondly, these changes cover only the period from 1951 to 1961. There have been many changes brought about by decisional law and legislation subsequent to that time that are not reflected in the August 1961 issue. These changes are not intended to obviate legal research for the period either before or after 1961.

D

URING THE COURSE of a trial, the president of a special court-martial may be required to give sua sponte (on his own motion) instructions to the other members of the court. This article deals with the circumstances when such instructions are required in the hope that such delineation will be of use and benefit to the presidents and counsel of special courts-martial.

The president of a special court-martial is a member apart, for it is to him that the government and the accused look to assure a just, fair and decorous trial. One of the most important duties of a president, to the eventual outcome of the case over which he presides, is in the area of instructions. He must give lucid guidelines to the other members of the court through the vehicle of his instructions on issues which arise during the course of the trial. Basically, the instructions which are required to be given are of two general categories, mandatory instructions required by the Uniform Code of Military Justice or the Manual for Courts-Martial, United States, 1951, and those instructions generated by the evidence as it develops during the trial. The former category of instructions may generally be prepared prior to trial. The latter category of instructions and more particularly the instructions on affirmative defenses and limiting instructions are the subject of this article.

*Lieutenant Van Slate is presently assigned as Appellate Government Counsel in the Office of the Judge Advocate General. He received the LL.B. degree from Tulane University in 1961 and is admitted to practice before the courts of the State of Louisiana, the U.S. District Court for the Eastern District of Louisiana, the U.S. District Court for the District of Hawaii and the Court of Military Appeals.

1. United States v. Smith, 13 USCMA 471, 33 CMR 3 (1963). 2. For specific guidelines in the area see NAVPERS 10090, Subj: Special Courts-Martial Instructional Guide for President, 1965.

THE SCOPE OF THE PRESIDENT'S
INSTRUCTIONAL DUTIES

In United States v. Pinkston, the Court of Military Appeals held that the president of a special court-martial, like the law officer in the general court-martial, is required to give the other members of the court instructions on affirmative defenses fairly raised by the evidence. Thus, the president must rely upon his own judgment of the evidence and give the necessary instructions even though neither counsel may have requested any specific instructions.

The decision by the president is final and is not subject to objection by the other members of the court. However, this is not to suggest that the president must adopt a "go it alone attitude" toward what instructions he will give the court. The ultimate decision must be made by the president, but he may seek the assistance of counsel as to suggested instructions." The president should feel free to request from trial counsel or defense counsel that they submit to him proposed instructions and grant a recess of the court to allow counsel to prepare such instructions. The president should, however, restrict his quest for instructional advice to counsel and his own independent research and not solicit advice as to what instructional guidelines he should give from independent opinion outside of the court-martial. Until recently it

3. 6 USCMA 700, 21 CMR 22 (1956).

4. United States v. Bridges, 12 USCMA 96, 30 CMR 96 (1961). 5. United States v. Quesinberry, 12 USCMA 609, 31 CMR 195 (1962). 6. In United States v. Norwood, No. 19,311, decided 12 August 1966, the failure to append to the record the proposed instructions of defense counsel was held to be prejudicial error. If the president should receive proposed instructions from counsel he should take affirmative action to see that these instructions are made a part of the record.

7. United States v. Smith, 12 USCMA 127, 30 CMR 127 (1961) and United States v. Self, 3 USCMA 568, 13 CMR 124 (1953).

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appeared that the president could feel free to use the out-of-court-hearing, when properly made a part of the record, to iron out with counsel what instructions should and would be given the court. In United States v. Baca, the majority opinion of the Court of Military Appeals indicated that there was no authority for a president of a special court-martial to hold such a hearing and thus such a practice was error. The facts of this case involved an interlocutory question as to the testimony of a witness concerning a purported confession by the accused. The Court of Military Appeals found prejudicial error in this case when a CIS investigative report was shown the president and not made a part of the record, which report indicated that the accused had confessed. No such confession was later admitted into evidence. It would now appear that prejudice to an accused from a out-of-court hearing will depend on the facts and circumstances of each case. When the question to be resolved is one which is subject to the objection of the other members of the court, the use of the out-of-court hearing should be avoided. However, when the matter to be decided is one of instructions to be given by the president, the use of the out-of-court hearing may not be prejudicial to the rights of the accused, 10 for the matters to be considered are solely within the province of the president to decide. In view of the language of the majority opinion in Baca, however, a president should be very circumspect in determining whether to use this procedural device in the future.

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IDENTIFICATION OF AN INSTRUCTIONAL ISSUE

The starting point for any decision as to what instructions must be given is with the evidence presented at trial. Recently, in United States v. Sitren," the Court of Military Appeals framed the test by which the evidence should be weighed as follows:

An accused is entitled to have presented instructions relating to any defense theory for which there is evidence in the record.

This test was early formulated in United States v. Ginn12 and required a viewing of the evidence to determine whether by reasonable inference it could be said than an affirmative defense was in issue. Critical to the application of this test by the president or counsel is keeping uppermost

8. United States v. Baca, No. 19,314, decided 12 August 1966. 9. MCM, 1951, para. 57c, and United States v. Bridges, supra note 4. 10. See the concurring opinion of Chief Judge Quinn in United States v. Baca, supra note 8.

11. No. 19,291, decided 19 August 1966. 12. 1 USCMA 453, 4 CMR 45 (1952).

in his mind that the triers of fact are charged with the duty of resolving factual disputes in the evidence. Thus, from a factual standpoint, the duty of the president to instruct on an issue is not founded on his belief of a witness or the evidence, but rather the necessity to set forth the issue for the court to decide.13 An issue may also arise if the government offers evidence of alternative theories of guilt. The amount of evidence required to raise an issue for instructional purposes in this circumstance is less than the amount of evidence required to support a finding of guilty.1 The rationale is not a question of "beyond a reasonable doubt" nor is it gauged by the preponderance of the evidence, but rather whether there is some evidence which raises an issue. The evidence presented by the prosecution and the evidence presented by the accused should not be weighed against each other to determine whether an instruction is required, for the president must affirmatively submit the theories of the defense to the triers of fact, by the instructions, so that they may knowledgeably apply the law to the facts as they find them.15 Ultimately, the issue resolves itself to a single question which the president should ask himself, that is: "If the court were to believe the evidence presented by the defense, could they because of that evidence find the accused innocent of the offense or offenses charged?" the president answers this question affirmatively, then he must, on his own motion, present the defense theory to the court in his instructions.16

THE ACCUSED AS A WITNESS

If

The sworn testimony of the accused alone may be sufficient to raise an issue for instructional purposes." This testimony need not be given from the stand, it is enough if his exculpatory statements are contained in a confession introduced into evidence by the government. In

13. United States v. Simmons, 1 USCMA 691, 5 CMR 119 (1952). 14. In United States v. Judd, 11 USCMA 164, 28 CMR 388 (1960), a case involving murder, it was held that when the evidence raises the issue of alterative theories of guilt they must be instructed upon. This problem may arise in a prosecution for larceny, that is, where the evidence shows that the accused may have wrongfully taken or withheld the property. The case of United States v. O'Hara, infra note 29, offers a good example of how this instructional problem may be handled in a larceny prosecution. 15. United States v. Blair, 16 USCMA 257, 36 CMR 413 (1966); United States v. Bellamy, 15 USCMA 617, 36 CMR 115 (1966). 16. This question is found at the heart of the decisions by the Court of Military Appeals in this area. See United States v. Remele, 13 USCMA 617, 33 CMR 149 (1963); United States v. Black, 12 USCMA 571, 31 CMR 157 (1961); United States v. Thornton, 8 USCMA 446, 24 CMR 256 (1957); and United States v. Amie, 7 USCMA 541, 22 CMR 304 (1957).

17. United States v. Callaghan, 14 USCMA 231, 34 CMR 11 (1963).

United States v. Johnson, 18 the Court of Military Appeals held that exculpatory statements in a confession should be regarded as if they had been made by the accused from the stand. Unless these exculpatory statements are inherently improbable and are unworthy of belief, they should be accepted by the president in framing his instructions on the issues raised.

In determining whether the president may freely disregard the exculpatory statements of the accused as either mitigating or extenuating circumstances only, or as inherently improbable, he should temper his judgment by resolving any doubt in favor of the accused. If a correct instruction is given out of an abundance of caution, there is no prejudice to the accused if it later is determined that the issue was not fairly raised by the evidence,19 nor is there any likelihood of prejudice to the United States. The president should first test the statements of the accused, assuming their truthfulness, and consider whether they could operate to absolve the accused of blame. For example, if an accused were to testify that he failed to obey a lawful order because his religious beliefs or personal moral convictions did not require him to obey the order, such testimony would not raise a legal defense to failure to obey a lawful order.20 In the past, the Court of Military Appeals has held that instructions on lesser included offenses or affirmative defenses were not reasonably raised by the evidence if an accused's contentions were inherently unbelievable or incredible when contrasted with the physical evidence or his actions at the time in question.21 The recent decision of United States v. Moore, 22 however, makes it clear that a majority of the Court of Military Appeals (Judges Ferguson and Kilday) has serious reservation as to the applicability of the legal presumption of inherent incredibility of an accused's testimony as a yardstick to determine whether an instruction on a lesser included offense should be given. Judge Ferguson speaking for the majority, characterized the doctrine as "time-worn" and "repudiated". The majority stated that the settled law is that the credibility of an accused's version of the incident is

18. 3 USCMA 209, 11 CMR 209 (1953); see also United States v. Tackett, 16 USCMA 226. 36 CMR 382 (1966).

19. United States v. Green, 13 USCMA 545, 33 CMR 77 (1963). In this case the law officer gave an incorrect instruction on selfdefense. The issue of self-defense was not reasonably raised by the evidence and the majority of the Court of Military Appeals held that the error was not prejudicial to the accused. But as to the question of submission of incorrect instructions or wrong instructions based upon the facts of the case see note 34, infra. 20. ACM 13462, Cupp, 24 CMR 565 (1957).

21. United States v. Bistram, 11 USCMA 345, 29 CMR 161 (1960) and United States v. St. Pierre, 3 USCMA 33, 11 CMR 33 (1953). 22. 16 USCMA 375, 36 CMR 531 (1966).

for the court-martial to determine, after receiving proper instructions. The tenor of the majority opinion in Moore, supra, makes it clear that if a president of a special court-martial finds that he is confronted with the question of deciding the reasonable character of the accused's explanation, he must leave the weighing of the credibility of the explanation to the court, under proper instructions.23 The rationale of the Court of Military Appeals, in this area, has followed a subtle shift from a criterion of the "reasonableness" of an accused's explanation to one of whether, if believed, such explanation would require an acquittal or a finding in a lesser degree of guilt.24 Therefore, it is suggested that when the evidence reveals an affirmative defense or raises an issue as to a lesser included offense, the president should give appropriate instructions to the court without regard to any personal judgment as to the worth of the evidence presented.

TAILORING INSTRUCTIONS TO ISSUES RAISED What is meant by "tailoring" is that the president should specifically relate his instructions to the issues marked out by the evidence.25 The question of styling instructions to the issues raised at trial must depend on the individual circumstances of each case. The best way for the question of tailoring to be understood is by example. In United States v. Jones,26 the accused was charged with larceny. The accused admitted possession of the stolen property but asserted that he had received the property from another. The court was instructed on the general elements of larceny. The Court of Military Appeals held that there was a fair risk of prejudice to the accused in the failure of the instructions to encompass the issue raised by the accused's testimony. Under the circumstances of that case the giving of only general, abstract legal principles was insufficient to properly frame the issues for the court. Grammatical nicety is not the test for determining the sufficiency of instructions; 27 rather the president's instructions should clearly expose the issue raised by the evidence for the decision of the triers of fact.28 Extensive comment on the evidence is not required and is usually not desirable, but the president should be satisfied

23. United States v. Kuefler, 14 USCMA 136, 33 CMR 348 (1963). 24. United States v. Callaghan, supra note 17, United States v. Moore, 12 USCMA 696, 31 CMR 282 (1962) and United States v. Farris, 9 USCMA 499, 26 CMR 279 (1958).

25. United States v. Thompson, 12 USCMA 438, 31 CMR 24 (1961). 26. 13 USCMA 635, 33 CMR 167 (1963).

27. United States v. McIntosh, 12 USCMA 474, 31 CMR 60 (1961). 28. United States v. Smith, supra note 1.