Lapas attēli
PDF
ePub

TO REBUT MATTER RAISED BY DEFENSE Evidence of prior acts of misconduct or offenses are often relevant to rebut an express or implied contention of the defense. Thus, where the accused raises the issue of entrapment he impliedly states that he would never have committed the offense had it not been for the police prodding him into it. To rebut this contention, it has been held permissible to establish the accused's propensity to commit the offense by showing similar offenses in the past.23

Where the accused is charged with murder and claims self-defense he impliedly states that he would not have used the weapon unless he was in great danger himself. To rebut this contention it has been held permissible to show that earlier on the night of the homicide he threatened another person with a similar knife since this tends to rebut the claim of self-defense.24

Where the accused raises the defense of an alibi to place him away from the scene of the crime it may be shown in rebuttal that he committed other offenses near the scene of the crime charged.

LIMITATIONS ON EVIDENCE OF OTHER MISCONDUCT

The primary restriction upon the use of evidence of misconduct not charged is relevancy. The act must have substantial probative value as tending to prove a fact in issue rather than merely showing the bad character or criminal disposition of the accused.

Examples of evidence failing to meet the standard of relevancy may be found in the following cases:

(a) In United States v. Pavoni" the accused was charged with larceny of an auto to which he had confessed. Evidence of previous auto thefts was held inadmissible because intent, knowledge or motive were not in issue and the evidence of prior misconduct could serve only to prejudice the accused by showing his bad character.

20

(b) In United States v. Jones the accused was charged with possession of marihuana but there was no chemical analysis of the substance available. It was held error to admit evidence of prior convictions for narcotics offenses for his knowledge of the nature of the substance was not in issue and the evidence of prior convictions was not relevant on the issue of whether or not the substance was, in fact, marihuana. A further consideration under the general heading of relevancy is the nature of the prior misconduct and its proximity in point of time

23. United States v. Boyd, 21 CMR 395 (1956).

24. United States v. Harris, 6 USCMA 736, 21 CMR 58 (1956). 25. 5 USCMA 591, 18 CMR 215 (1955).

26. 2 USCMA 80, 6 CMR 80 (1952).

to the offense charged. The question of similarity of the misconduct not charged has been discussed under the separate purposes for which it may be admitted.

As to proximity to the charged offense no fixed rule can be stated. The precedents indicate various lengths of time. It is clear, however, that the further back one goes in search of evidence, the less probative value attaches to the evidence. Therefore, if the act is sufficiently close to the charged offense to have probative value, it may be admitted.27 This determination is left to the sound discretion of the law officer.28

DEGREE OF PROOF

When evidence of other misconduct is offered to prove an element in issue it is not necessary to establish that the accused was convicted of the offense or to establish its commission beyond a reasonable doubt. However, the evidence must be based on more than a mere suspicion of past misconduct.29 And it should be borne in mind that the degree of certainty to which the misconduct can be established has a substantial effect upon the probative value of the evidence.

NECESSITY

Another factor which appears to warrant consideration under the general heading of relevancy is the necessity for evidence of other misconduct. We begin by recognizing the fact that evidence of offenses and misconduct not charged can be extremely damaging to the interests of the accused. It is only when the potential damage to the accused is outweighed by the probative value of the evidence that it is admissible.

It follows, then, that where there is other eviIdence with which to establish a fact in issue without recourse to proof of other misconduct, or there is already ample evidence in the record so that the proof of other misconduct would be cumulative, although otherwise relevant, the evidence of other misconduct should be excluded.30

This "rule of necessity" has been followed by the Federal courts and has been, to a certain degree, recognized in military law. In United States v. Yerger 31 the accused was charged with breaking restriction and unauthorized absence. In order to establish that the accused was duly

27. United States v. Orluff, 153 F2d 292 (6th Cir. 1946).

28. United States v. Kettenbach, 202 F 377 (9th Cir. 1913); United States v. Bryant, supra note 18.

29. United States v. Britt, 10 USCMA 557, 28 CMR 123 (1959); United States v. Kelley, 7 USCMA 584, 23 CMR 48 (1957).

30. United States v. Burge, 26 App D.C. 524 (1906); United States v. Martin, 127 F2d 865, 870 (DC Cir. 1942).

31.9 USCMA 182, 186, 25 CMR 444, 448 (1958).

restricted the prosecution put in evidence of a previous conviction for which he was sentenced to restriction. On appeal it was held that this was error since his restricted status could have been established without recourse to proof of previous offenses.

In United States v. Marcey 32 the Court of Military Appeals stated:

[ocr errors]

policy considerations sometimes dictate that material evidence should be held incompetent because the potentialities for harm to the accused far outweigh the necessity of using the evidence for legitimate purposes.

From these precedents 33 it appears that in a case where the necessity for the use of evidence of other acts was far outweighed by the potential harm to the accused, prejudicial error would be found. For this reason the necessity for the use of the evidence and its potential harm to the accused should be carefully assessed by the trial counsel and law officer.

LIMITING INSTRUCTIONS

Whenever evidence of prior offenses or misconduct is admitted it is received for consideration on a limited issue. Due to the danger that from this evidence the court might infer a criminal propensity on the part of the accused to commit the act charged, the accused is entitled to an instruction limiting the court's consideration of the evidence to the limited purpose for which it was admitted (i.e., intent, knowledge, motive, etc.).

The accused's entitlement to such a limiting instruction raises the issue of whether the law officer must instruct sua sponte or only upon the request of the defense.

35

Initially the Court of Military Appeals held that in the absence of a request by the defense the law officer or president was under no obligation to instruct sua sponte.34 But the issue was reconsidered by the court in United States v. Bryant, wherein a divided court, after reviewing its earlier decisions, concluded that a limiting instruction is a necessary concomitant of such evidence. The rule set down in United States v. Haimson 36 was apparently overruled. Two cases then followed which seemed to indicate that the question of whether a limiting instruction was required was to be decided upon the circumstances of each case.37 These cases

[blocks in formation]

created a great deal of confusion concerning the requirement of limiting instructions.

In its most recent pronouncement 38 on this issue, the court, speaking through Judge Ferguson, attributed the difficulty in reconciling its various earlier opinions to a focusing of attention upon the erroneous failure to instruct rather than the resultant prejudice.

The court went on to say that when evidence of prior misconduct is received the law officer is obliged to instruct, sua sponte, on the limited issue for which it may be considered. The law officer's failure to so instruct is error.

The Court in Back stated that, finding error in the law officer's failure to give a limited instruction, it will next consider whether prejudice resulted from the lack of such an instruction. On the one hand, evidence of the accused's guilt may be such that the failure to restrict proof of other misconduct may be fairly said to have weighed not at all in connection with the findings and sentence. On the other, the record may present a fair risk that the fact finders accorded weight on the merits to the matter. We cannot lay down any precise measure for answering this subsidiary question, which, of course, depends so much upon the circumstances of the individual case. 39

In examining the record for prejudice the court will consider whether, in view of the posture of the record in the case, there is a fair risk that the court accorded weight to the evidence of misconduct in its consideration of the accused's guilt of the offense charged.

Some insight into the factors the court will consider in its determination of whether the lack of an instruction results in prejudice may be found in its recent decisions on this issue. First: it is clear from the language of the Back case that the presence of compelling evidence of guilt in the record dispels any question of whether the court gave weight to the evidence of misconduct. Therefore, in the face of compelling evidence, no prejudice results from the law officer's failure to give a limiting instruction. Second: the type of misconduct shown appears to be a factor which will be weighed by the court in its consideration of the question of prejudice. In the case of United States v. Sellers 40 the decision appeared to turn on the fact that the misconduct shown was not of the type which the trial court would give weight to on the issue of guilt. Third: the arguments of counsel and the discussion of the president or law officer at the (Continued on page 258)

38. United States v. Back, 13 USCMA 568, 33 CMR 100 (1963). 39. 33 CMR at 103.

40. United States v. Sellers, supra note 19.

CONGRESS LOOKS AT THE NAVYTHE HEARINGS ON AIRCRAFT, MISSILES, SHIPS, AND R.D.T.&E.

CAPT BENJAMIN R. FERN, USN*

SHIPS DETERMINE THE NAVY. With

out them there could be no Navy. From some esoteric university research under Navy sponsorship to a full-scale Marine amphibious landing, the scope of almost all activities of the Navy is related to the number and types of ships. The number of carriers determines the number of destroyers and aircraft which the Navy will have. The number and classes of submarines determine the necessity for certain schools. Employment levels at the Naval Shipyards are determined by the size of the fleets. Ultimately, the total ships determine the strength and distribution of personnel of the Navy.

Who then determines the number and types of ships in the Navy? The Chief of Naval Operations, the Secretary of the Navy, the Secretary of Defense, or the President? Or the Congress? To a certain extent, all do, for the process of deciding what and how many ships the Navy will have is complex and lengthy. Although the President is the Commander in Chief of the Navy, the Congress has the power to provide and maintain a Navy. One of the most critical phases of the process is the legislative review of the requirements for aircraft, ships, naval vessels; and research, development, test and evaluation.

Each Fall there is considerable activity in various Navy Department offices when preparations begin for the so-called "412 hearings." Anyone not involved may understandably ask what 412 is. The full title of these Congressional hearings is the Authorization of Appropriations During Fiscal Year 19 for Procurement of Aircraft, Missiles, Naval Vessels, and Research, Development, Test, and Evaluation for the Armed Forces. Sometimes the hearings are referred to as the Military Procurement and R&D Authorization hearings. The name Military Posture is also used but really denotes just

*Captain Benjamin R. Fern, U.S. Navy, is currently assigned to the Office of Legislative Affairs. He holds the A.B. degree from Queens College and the LL.B. degree from The George Washington University. Captain Fern is a member of the bar of the District of Columbia and holds membership in the American Bar Association. He has held various operating commands and has served as Naval Attaché to Uruguay.

the introductory statements by the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the Secretaries of the military departments, and the Chiefs of the military services.

The Military Construction Act of 1959, as amended, provides in subsection 412 (b),

No funds may be appropriated after December 31, 1960, to or for the use of any armed force of the United States for the procurement of aircraft, missiles, or naval vessels, or after December 31, 1962, to or for the use of any armed force of the United States for the research, development, test or evaluation of aircraft, missiles, or naval vessels, or after December 31, 1963, to or for the use of any armed force of the United States for any research, development, test, or evaluation, unless the appropriation of such funds has been authorized by legislation enacted after such dates."

The effect of this provision is to require a review by a legislative committee of the Congress, which in this case means the Committees on Armed Services, before certain parts of the annual military budget request may be considered by an appropriations committee.

Starting in 1949, when the full House Armed Services Committee came to the Pentagon, representatives of the armed forces have been briefing the Armed Services Committees at the beginning of each session of Congress on the overall military situation. But before Congress approved the authorization requirement in 1959, the annual appropriations for the Department of Defense for much of the procurement and the research and development were subject to no limitation. Under this practice, the Committees on Armed Services did not participate in the annual reviews of fundamental decisions affecting the weapons systems with which the armed forces were being equipped. The result was not consistent with the division of responsibility for legislative subject matter which was contemplated by the rules of both Houses. Under these rules, both Armed Services Committees are responsible for, inter alia, common defense generally; the Department of Defense and the military departments generally; and the size and composition of the Army, Navy, Marine Corps,

and Air Force. The Senate Committee also handles legislation relating to aeronautical and space activities peculiar to or associated with the development of weapons systems or military operations, while the House Committee is cognizant of scientific research and development in support of the armed forces.

The original authorization provision of 1959 did not include research, development, test, or evaluation. These areas were added by amendments in 1962 and 1963.

It should be noted that section 412 does not include all procurement but only that involving aircraft, missiles, or naval vessels. Less than one-third of the new obligational authority requested by the Department of Defense this year was subject to legislative authorization. The remainder includes such activities as operations and maintenance and pay of military personnel, and procurement for programs other than aircraft, missiles, and naval vessels. A higher proportion of Navy and Air Force appropriations, however, require authorization than do appropriations for the Army.

Thus, although the Committees on Appropriations must fund all of the annual defense programs, the Committees on Armed Services have the opportunity to be informed of the overall military posture in conjunction with their deliberations on those activities which are most closely related to present and future national security.

With appropriations generally being on a yearly basis, preparation for the 412 authorization is of a cyclical nature. Some months after the new Congress is elected, and at comparable times in the off years, an ad hoc committee is usually formed in the Navy Department to develop and coordinate the Navy and Marine Corps preparations for the 412 hearings. More or less formally organized, the group represents the Office of the Chief of Naval Operations, the Office of Legislative Affairs, the Office of the Navy Comptroller, and Headquarters Marine Corps.

Before this group can shape the production of a Navy presentation, it must obtain the views of the Secretary of Defense and of the Committees on Armed Services as to the anticipated form and extent of the hearings. The appropriations authorization legislation is assigned to the Office of SecDef for action, hence the Assistant to SecDef for Legislative Affairs is basically responsible for responding to the Committees' desires. Liaison with his office and with the cognizant professional staff member of

the Congressional Committees is maintained through the OLA member of the Navy ad hoc group. He seeks to advise, as early as practicable, the expected dates of the hearings, changes from the form of the previous year's testimony, the amount of detail desired by the Congressional Committees, the form of back-up material, the minimum dollar cut-off of programs to be presented, and other ground rules and guidance for the Navy.

The OpNav member serves notice on various OpNav offices and other program sponsors to prepare presentations on subjects under their cognizance. These program sponsors, who are intimately acquainted with the status of approval of their programs, represent the substantive working level for the procurement program of aircraft, missiles, naval vessels, and research and development. At this point in time, their programs are usually far from firm.

The ad hoc committee then schedules a series of "murder" boards to provide a critique of the individual presentations and to coordinate the various subjects into an integrated Navy and Marine Corps whole. Due to the voluminous and detailed nature of the material presented, there is great reliance on visual aids. The murder boards bring out such upsetting observations that figures on graphics must be large, that common Pentagon terminology is not always understood on the Hill, that only approved programs may be presented, and that substantiation must be ready for every fact.

While this is going on, SecNav, CNO and the Commandant of the Marine Corps are having their personal statements prepared. In theory, the Secretary's remarks derive from that of SecDef, while the CNO and CMC supplement SecNav in the professional area. All statements combine military posture comments with an analysis and justification of the Navy-Marine Corps budget requests. Preparation of these statements is not unlike getting ready for ap-. pearances before any Congressional committee hearing. Although the ad hoc Navy Committee has not been responsible for preparing statements, it has necessarily had to insure that there was a consistency between what SecNav, CNO, and CMC were planning to say and what the program sponsors would later present.

It might be well to mention two other related tasks which may be performed within the Navy Department about this time, the appropriations hearings presentations and the freshmen Congressmen briefings. Most of the witnesses who testify before the Committees on Armed Services will later appear before the Committees on

Appropriations so that preparation for the two types of hearings is largely common. It is for this reason that the Navy Comptroller's office, which is charged with the responsibility for appropriations matters, is represented on the ad hoc committee. At the beginning of each new Congress, or every two years, there has been a custom of inviting all the newly-elected Senators and Congressmen to the Pentagon for a series of orientation briefings on the organization and functions of the Navy and Marine Corps. Some of the material developed for the authorization hearings can also be used for the freshmen Congressmen briefings. But it should be realized that the purpose of the authorization and appropriations hearings is to pursuade the responsible Congressional committees of the justification for the Navy's needs, while the purpose of the orientation briefings is merely to acquaint. Of course, freshmen Congressmen vote just as do veteran Congressmen, and, from a salesman's viewpoint, an initial impression may be a lasting one. Because of this community of interest of the Armed Services and Appropriations Committees and of the freshmen Congressmen, the ad hoc committee has attempted to coordinate some of the Navy's presentation for all three groups.

As anyone who has appeared before a Congressional committee can attest, a witness who is seeking to convince a committee to accept his views does well to be responsive to the desires of the committee members, particularly the chairman. As a practical matter, it is not always easy to determine in advance what a committee needs. For example, should the witness go into great detail in explaining technical matters, or will he be insulting the intelligence and wasting the time of the committee members who are quite familiar with the subject? A usually fruitful source of guidance here is the professional staffs of the committees. As indicated earlier, the OLA action officer maintains a liaison for this purpose on a continuing basis. because of the comprehensive and significant nature of the 412 hearings, additional guidance is obtained from a full-scale rehearsal or dry run of the Navy's presentations.

But

On a scheduled day, sometime about the first of the year, the professional staffs of the Armed Services Committees and the Defense Subcommittees of the Appropriations Committees of both the House and Senate are invited to the OpNav briefing theater in the Pentagon. These persons, numbering some twelve, bring an impressive amount of intelligence and experience to bear on behalf of their committees. The pro

fessional staffs not only are familiar with the subject matter of the legislation they handle, but possess a perceptive understanding of the interests of the members of the committees. The Navy show generally is introduced by some informal remarks of SecNav and CNO and then proceeds to unveil, program by program, the requests for authorizations for aircraft, missiles, naval vessels, and R. D. T. & E. There is no problem of encouraging the committee staffs to be candid, so that their critique invariably results in a better presentation later on the Hill.

Continuing right up to the threshold of the committee hearing rooms, the presenters polish their products to a fine gloss. Until the President's budget is presented to the Congress, all numbers of equipments and dollars are especially tentative. Meanwhile, OLA seeks to assist the officers who will appear for the Navy by providing a summarization of the experience of previous years. Not only are questions of continuing moment gleaned from former testimony before the committees, but new questions are anticipated from the various known interests of Committee Members. A recent visit to a military unit by a Congressman, for example, may provide the basis for questioning, as do the current press, constituent interest in bases and contracts, or the professional background of the Member.

Usually the first order of business before the Committees on Armed Services other than their organization meetings at the beginning of each session, the 412 hearings commence in February or March. Concurrently an authorization bill, based upon the President's budget, is introduced by at least one of the Committee Chairmen. In a technical sense, the 412 hearings are on this bill. As the organizing of the Senate generally lags behind that of the House, the House Armed Services Committee usually starts hearings first.

It has been the practice of the Armed Services Committees that the full committees hold the hearings on the authorization bills. Last year, however, the Chairman, House Armed Services Committee, established a Subcommittee on Research and Development with a Subcommittee Counsel of its own. The R. D. T. & E. part of the authorization, therefore, was considered by the subcommittee which then reported to the full committee.

Because of the security classification of some of the information presented in the 412 hearings, all sessions have been designated as Executive and strict control is maintained of those persons who may attend. Other than the witnesses and back-up witnesses, only one representative from

« iepriekšējāTurpināt »