quired should also be viewed to ascertain possible instructions and rulings. Any legal reference books may be used.

However, as the president proceeds along these lines, he may find himself tempted to learn something of the facts in the approaching case and may find himself making factual queries and determinations. This is the danger point. All pretrial inquiry by the president must be limited to legal matters. He must not seek any acquaintance with the facts of the case, other than that which is conveyed to him by the wording of the specifications. This is so because he must maintain his impartiality as one of the fact-finders of the court-martial. He may arm himself with knowledge of all the legal gear he needs to run the trial smoothly and properly, but must completely reserve for the trial itself the receipt of, consideration of, and decision upon facts peculiar to the case. Keeping this in mind, the president may seek counsel from the staff legal officer or other lawyers on matters of law he may foresee as potential problems. It is perfectly permissible for the president to request the trial and defense counsel to advise him prior to trial of any exclusively legal issues which they together feel may arise in the case, and incidentally, whether a peremptory challenge of the president is anticipated. If so, the next senior member should be alerted.

ADDITIONAL EVIDENCE

QUESTION (2): When the prosecution has completed its case and it is apparent to the court that certain elements of the offenses charged have not been proved, but that it is likely that such evidence is available from additional witnesses, or could be obtained if witnesses already called were requestioned, is it appropriate for the president to direct trial counsel to procure or bring out such additional evidence?

Since it is obviously improper for court members to perfect the prosecution case by themselves directing questions to prosecution witnesses, how far can the president of a special court-martial go in specifying the type of information desired?

ANSWER: Unfortunately, a lawyer's answer has to be given to these questions: it depends. The problem that arises when the court is not content with the evidence adduced by the parties, and feels it cannot therefore properly determine the issues before it, deserves close attention, as it can result in fatal error. The courtmartial may feel a duty, and understandably so, to seek knowledge at the trial of all the facts involved. And the president, because of his position of special responsibility, may feel this duty more keenly than the other members. The dan

ger is that the court-martial could be accused of adopting the cause of either side and not remaining impartial. At first blush, it may appear that any attempt by the court-martial to elicit testimony, not brought out by either counsel, would be a departure from the impartial role demanded of court members. It is well settled, however, that the court-martial is authorized to have trial counsel recall witnesses, summon new witnesses, or make an investigation along certain lines for possible discovery and presentation of additional evidence. The court-martial may question witnesses called by either side, request recall of witnesses, and have testimony reread. In the matter of recalling witnesses, this may be done even after the court-martial has begun its deliberations." This authorization must be tempered by the dictates of impartiality, however, and may not be carried to the point where it constitutes bias by any member of the court-martial and deprives the accused of a fair and impartial trial. The court-martial's authority to question, call, or recall witnesses is not improper if it is limited to the clarification of matters already before the courtmartial.' It is proper even if the clarification concerns matters before the court-martial only by inference, but the court-martial may not generally initiate the production of specific evidence in areas not previously presented for their consideration either directly or indirectly. However, this does not preclude the president from informing trial counsel in open court at the close of the prosecution's case that the government has failed to sufficiently prove one or more specific elements of the offense charged and that as a consequence the charge would not survive a motion for a finding of not guilty. A general statement such as this would not amount to requiring the production of specific evidence and would be in keeping with the proposition that the government must prove beyond a reasonable doubt each and every element of an offense before an accused may be convicted. On the other hand, for the court-martial to be the prime mover in directing the production of specific evi

3. MCM, 1951, par. 54b.

4. U.S. v. Blankenship, 7 USCMA 328, 22 CMR 118 (1956). 5. U.S. v. Parker, 7 USCMA 182, 21 CMR 308 (1956).

6. U.S. v. Marshall, 12 USCMA 117, 30 CMR 117 (1961); U.S. v. Blankenship, supra note 4; U.S. v. Sears, 6 USCMA 661; 20 CMR 377 (1956); and CM 407373 Randolph, 32 CMR 495 (1962).

7. CM 407757 Lowe, 32 CMR 597 (1962).

8. This argument is based on the holding in NCM 55 03177, Langer, 20 CMR 513 (1955) where it was held that, under the circumstances of that case, the court had not only the authority but also the responsibility to direct trial counsel to inquire into the possibility of additional evidence after a motion for a finding of not guilty had been made by the defense.

dence for the necessary proof of an element would indeed eliminate the necessary impartiality. Impartiality also requires that the courtmartial should not initiate defenses for the accused in the absence of any evidence possibly tending to raise such defenses.

In this regard, the president would be well advised to require the members of the courtmartial to submit any questions they desire to ask to him for clearance and presentation to witnesses, as this procedure will eliminate the asking of improper questions and the need to have them stricken from the record. His own questions should also be considered by him thoroughly in the light of the above guidelines before he asks them to witnesses.

There is no prohibition as to specificity in directions by the court that trial counsel conduct an investigation to discover further evidence, nor with regard to the court's questioning of witnessses, so long as the guidelines above are followed. One suggested procedure would be to direct trial counsel, for the benefit of the court, to conduct further investigation to discover evidence which may clarify specific areas which have been brought into issue by certain evidence, with specific mention of the points needing clarification. The emphasis here is upon announcing which areas are confusing and not upon telling him what specific evidence will clear away the confusion.

INSTRUCTING COUNSEL

QUESTION (38): Is it improper for the president of a special court-martial confronted with bumbling trial counsel to recess or adjourn the court and meet privately with the trial counsel to instruct him in his duties and to direct him to bring evidence on certain matters which is apparently available but not likely to be presented to the court unless demanded or asked for?

ANSWER: YES!!!-such a procedure would be improper under any conditions other than if it were conducted in open court. The desire to correct or guide a bumbling trial counsel who threatens the integrity of the court-martial is a strong feeling which a president might develop because of his prominent position in the courtmartial and his interest in its smooth operation. While it is true that the president need not sit idly by and ignore such procedures, he again must be cautious not to abandon his position of impartiality. Efforts at merely avoiding embarrassment for the trial counsel may be taken by the president, but if these efforts in actuality result in perfecting the government's case, they immediately place the president in a bad light

and will probably cause reversal of any conviction. The president must never attempt to hold a private out-of-court conference with the trial counsel to accomplish these ends. Any such discussion must be in the presence of the accused and his counsel and be made part of the record." Such a conference held otherwise is presumed to be prejudicial to the accused. 10 This presumption of prejudice can only be overcome by full disclosure of what transpired during the conference. This disclosure would foil any attempt to avoid embarrassment for the trial counsel and, in the event the purpose of the conference is shown to be perfection of, or help for, the prosecution's case, would clearly destroy the cloak of impartiality which must surround the president. Additionally, the result of such a conference can be disapproval of an adjudged bad conduct discharge for lack of verbatim record.11 In the case of shown or suspected bias it would, of course, result in disapproval of the findings. Since the line is so very thin between clarification of issues already raised in court, as noted earlier in this article, and the type of intervention and participation by the court-martial mentioned here, extreme caution is urged in this area of activity.

Of interest in this regard is the following language taken from the Board of Review decision in U.S. v. Turner, NCM 67–0940, decided 2 May 1967 (unpublished):

Appellate defense counsel assigns the following errors: (1) The president of the court abandoned his role as an impartial arbiter of fact and became an advocate for the prosecution; and (2) ... Counsel takes the position that both assigned errors affect the sentence and we are asked to disapprove that portion of the sentence which extends to a punitive discharge or, in the alternative, order a rehearing upon the sentence.

The background of the first assignment of error is indicated from an extract from the record of trial quoted below:

"TC: I have no evidence of previous convictions. "PRES: Have you checked the Service Record Book?

"TC: Yes, sir.

"PRES: No previous convictions? None at all? No previous court-martials? "TC: I didn't see any, sir.

"PRES: The court will be recessed for ten minutes in order to prepare the introduction of any previous convictions. The court will be recessed.

"TC: In review of the Service Record Book I wish to offer evidence of previous convictions."

9. UCMJ, Art. 39; 10 USC 839.

10. U.S. v. Bruce, 12 USCMA 410, 30 CMR 410 (1961). 11. UCMJ, Art. 19; 10 USC 819.

The admission in evidence of the prior conviction referred to above followed. Not only does the foregoing colloquy between the president and the trial counsel show that the president of the court departed from his role as an impartial member of the court to remedy the apparent default of the trial counsel, but it also rather strongly suggests that the president of the court had significant knowledge affecting the case which should have been disclosed when the members of the court were afforded the opportunity to disclose any ground for challenge. The Staff Legal Officer noted the error, commenting that the president ‘did depart somewhat from the impartial judicial role required,' but he concluded that the prejudicial effect upon the sentence was slight and recommended mitigating action which led to the supervisory authority's approval of a sentence including a suspended bad conduct discharge. In our view, the prejudicial effect of the error in question involved the punitive discharge adjudged by the court, for aside from the previous conviction, the accused's record available to the court indicated no disciplinary incidents in an enlistment extending some forty-two months prior to the inception of the unauthorized absence. In the circumstances, we find it not beyond the realm of reasonable possibility that, but for the prior conviction, the court might have seen fit to adjudge a sentence not including a punitive discharge.

We have concluded that the ends of justice will best be served in this instance by affirming a sentence not extending to a punitive discharge, in lieu of ordering a rehearing upon the sentence.

RESEARCH ON RULINGS

QUESTION (4): When required to make a ruling on an objection or a motion (not related to instructions to the court), and unable to determine a proper ruling by quick reference to the Manual in open court, or from argument of counsel, is it proper for the president to recess the court-martial and seek guidance, while the court-martial is recessed, from a legal officer, law specialist, or a legal reference book? Connected with this question, should trial and defense counsel be present when such inquiry is made or is such procedure improper under any circumstances? ANSWER: It is improper for the president to seek guidance from anyone outside the courtroom, whether or not counsel are present. He may, however, consult reference books. He has two possible courses of action he may take when these two sources of assistance, the Manual and argument of counsel, fail him. Of the two alternatives open to the president, the first one, unfortunately, is followed far too often. Here, the president attempts the decision in open court, with the possibility of attending confusion and embarrassment for the rest of the court-martial while he leafs through the Manual and tries to clear his mind on the matter. This alternative

is not suggested when the president cannot satisfactorily make up his mind with a minimum amount of delay. The pressure upon him may not allow for a rational and well-founded

answer.

The other alternative is a recess called by the president so that the ruling, when finally made, will have the benefit of clear thinking and well-informed decision. While this procedure is recommended, it must be performed properly to avoid error.

As stated, examination of legal reference books by the president is permissible, but at the same time he should require both counsel to research the issue and to present, for the entire court-martial and the record, complete argument on the matter. By using this tack, the law surrounding the issue can be made known to all members of the court-martial, and accordingly, they can more intelligently decide whether or not to object to the ruling of the president. Of course, the president may simply call a recess just for the purpose of consulting the Manual during the recess, thus avoiding the embarrassing situation in the courtroom. If legal research or personal knowledge by the president results in location of authority in point, it is recommended that he point out the item to counsel in open court and "ask" them to comment upon its application to the issue under consideration. This procedure spreads the law upon the record to some extent, clarifies matters for the other court members, and helps educate both counsel.

INSTRUCTING COURT

QUESTION (5): When it becomes necessary to instruct the court, and the president is not satisfied with the proposed instructions provided by the trial and defense counsel and is uncertain as to the adequacy of the instructions he himself proposes to give, may he recess the court and consult manuals, legal references, law specialists, or legal officers while the court is recessed or adjourned, or is he only allowed to page through the Manual in open court in a procedure which may take considerable time, while counsel, the accused, spectators and other court members look on in frustration and disgust, the other court members having been denied the right to even consult the Manual in open court?

Is the better procedure to direct research into the proper instructions by trial and defense counsel and to recess or adjourn to give them an opportunity to do so?

ANSWER: Once again, the practice of sitting before the court-martial thumbing through the Manual and taking considerable time, while the others present look on in discomfort and with

possible misgivings about the integrity of the proceedings, should be avoided. Once counsel have been given the opportunity to submit instructions, they should not be directed to supplement or change the instructions they have indicated. They are not obliged to submit any.12 Whether dissatisfied with proposed instructions, or confused as to their propriety, the president should in every case recess the courtmartial and proceed himself to research the matter to ascertain which instructions should be given. The latitude allowed the president in finding the right answers is broader here than is the case with rulings on motions and objections, because the instructions are his sole responsibility.13 Because his decision is final, with no objection permitted the other members, there is no need for other members to know the law that was applied to reach a decision. The president may consult legal reference books, and may seek outside advice from legal officers; however, he must avoid contact with the convening authority and his direct legal representatives. Also, asking for personal advice respect

12. U.S. v. Walters, 4 USCMA 617, 16 CMR 191 (1954).

13. U.S. v. Bridges, 12 USCMA 96, 30 CMR 96 (1961) and U.S. v. Quesinberry, 12 USCMA 609, 31 CMR 195 (1962). 14. WC NCM 61 00853 Frame, 31 CMR 452 (1961).

ing facts or factual opinions from others could harm the impartiality of the president; might infringe upon the rule that factual issues be discussed only in open court or closed sessions; and might improperly affect his decision on a matter for which the president has the sole responsibility. Therefore, such discussions should be approached with caution, the advice accepted as advice only, and final decisions reached by the president alone. In other words, he cannot cast away his responsibility for the instructions. Also, despite the seemingly contrary dicta of the Court of Military Appeals in U.S. v. Baca,15 to the effect that out-of-court hearings are not authorized in special courtsmartial, it appears that where only a discussion of proposed instructions will be involved, a recorded out-of-court hearing held by the president in the presence of the accused, the reporter, and trial and defense counsel is not only authorized, but should be used in all complicated

cases.

15. U.S. v. Baca, 16 USCMA 311, 36 CMR 467 (1966). In Baca certain matter was discussed away from the other court members as a prelude to rulings by the president, rulings to which the other members had a right to object. Without the benefit of the discussions, the other court members could not intelligently consider their right to object to the subsequent rulings.

COMP. GEN. DECISION

On May 19, 1966, the Assistant Secretary of Defense (Comptroller) requested decision by the Comptroller General concerning the effect to be given to the Friestedt case, specifically:

1. Should the services apply the rule of the Friestedt case to all disability retirements to which 10 U.S.C. 1372 (2) is applicable?

2. If the answer to # 1 is "yes," should the Friestedt rule be applied to all other statutes, such as 10 U.S.C. 1212 (a) (B) (ii), 3963 (a), 3964, 6151, 8963 (a), and 8964, under which the amount of severance pay or retirement benefits payable depends upon service in the "highest temporary grade"?

3. If the answer to one or both of the first two questions is "yes," are officers and enlisted men previously retired or paid severance pay under the cited statutes in grades below their highest permanent grades entitled to relief under the Friestedt rule?

The Comptroller General, on July 8, 1966, replied that the rule of the Friestedt case might be applied only in instances in which the member is or has been placed on the temporary disability retired list pursuant to 10

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U.S.C. 1202 or 1205, retired for disability pursuant to 10 U.S.C. 1201 or 1204, or separated for disability and granted disability severance pay pursuant to 10 U.S.C. 1212 (a) (B) (ii). It was held that the rule could not be applied in other cases (retirement or separation not based on physical disability). It was also held, in effect, that members theretofore retired or separated for physical disability in circumstances giving entitlement to the benefit of the Friestedt rule might claim and receive retroactively the increased pay (within the limits of the applicable statute of limitations).

Legislation is now pending which, if enacted, will extend the Friestedt rule across the board, whether retirement is based on physical disability or years of service. In the absence of such remedial legislation or further extension of the rule by the Court of Claims the services lack authority to allow the benefit to those who have served in a higher "permanent" grade and who retire or are separated on the basis of years of service. In principle, no sound basis for distinguishing "physical disability" cases from "years of service" cases is perceived.

U.S. GOVERNMENT PRINTING OFFICE: 1967