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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
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 persong, 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 The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed.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
REAR ADMIRAL ROBERT D. POWERS, JR., USN
Deputy and Assistant
COMMANDER HARLAND B. COPE, USN
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A MESSAGE FROM THE JUDGE ADVOCATE GENERAL
I greet you as the new Judge Advocate General of the Navy. From my many years of experience as a law specialist serving in the Office of the Judge Advocate General and elsewhere, throughout the terms of the last five Judge Advocates General, I feel that I am somewhat aware of the responsibilities of the Office. It is first, a responsibility to render to the Navy the highest quality of legal service and cooperation-secondly, a responsibility to give to the law arm of the Navy a leadership of which they may be proud, one which will enhance the stature of law specialists as members of the Navy team who can and do pull a strong oar.
In my opinion, the basic goal of the Navy lawyer is to make a substantial contribution to the ever-growing strength of the Navy, always working within the constitutional and statutory guidelines which are the hallmark of a government of laws rather than of people. Our strength as a nation and our future as a free people are dependent upon respect and adherence to the law. It must be remembered that laws are not necessarily synonymous with restrictions and prohibitions. Rather, they are channel markers that light the way to strength and progress in an orderly society. They are not to be construed as a pair of too-tight shoes on growing feet. At least, with your support, the laws relating to the Navy will not be so construed.
I look forward to the opportunity to meet all law specialists wherever serving and to compliment each one of you personally for the great contribution you are making to the fulfillment of the mission of the Navy.
On 1 April 1964 Rear Admiral Wilfred A. Hearn, U.S. Navy, became the 22d Judge Advocate General of the Navy. Among the first official acts he performed that date was to administer the oath of office to the Navy's new Chief of Naval Personnel, Vice Admiral Benedict J. Semmes, U.S. Navy.
Born in Memphis, Tenn., Admiral Hearn graduated from Western High School, Washington, D.C. He then attended the University of Maryland and received an LL.B. degree from the George Washington University in 1931. He was admitted to practice before the U.S. District Court and the Court of Appeals of the District of Columbia in 1931. He was then admitted to practice before the Supreme Court of the State of Tennessee in 1936 and was engaged in the private practice of law at Memphis, Tenn., until his entry into the Naval service in 1942. Admiral Hearn served throughout World War II in various assignments as an aviation ground officer. He was commissioned a law specialist in the Regular Navy in 1946.
A graduate of the Navy School of Military Government, the Army Industrial College course in Contract Terminations, and the Fourth Advance Course in Military Law at the Judge Advocate General's School, U.S. Army, the Judge Advocate General has been a guest lecturer at the Naval War College on six different occasions.
Among Admiral Hearn's assignments have been such legal billets as Chief Tax Officer for the Department of the Navy; Director, General Law Division, Office of the Judge Advocate General; District Legal Officer, 14th Naval District; Director, Administrative Law Division, Office of the Judge Advocate General; Director, International Law Division, Office of the Judge Advocate General; and Assistant Judge Advocate General of the Navy (International and Administrative Law).
As Special Assistant to the Judge Advocate General on the Law of the Sea, Admiral Hearn served as a member of the U.S. Delegation to the United Nations Conferences on the Law of the Sea in 1958 and 1960.
The Judge Advocate General is a member of the American Bar Association, the American Society of International Law, Sigma Nu social fraternity and Phi Alpha Delta legal fraternity.
JAG BULLETIN BOARD
MILITARY PERSONNEL DIVISION
The following is a list of change of duty or station orders issued to all officers transferred to or from the Office of the Judge Advocato General and to all Navy law specialists regardless of assignment. The list includes orders issued since 1 January 1964.
LT Leonard M. Addington, USNR, from Com Thirteen to
NAS, Atsugi, Japan. CDR Henry L. Allen, USN, from OJAG to ComPhib
TraLant. ENS Edward A. Arianna, USNR, from NAAS, Whiting
Field to NAVSTA, Annapolis, Md. CDR Richard E. Blair, USN, from OJAG to Naval Petro
leum Reserves. LTJG Henry L. Blumenthal, USNR, from COMPHIBPAC to USS Forrestal. LTJG Robert R. A. Briggs, USNR, from COMNAVFOR MARIANAS to NAVSTA, Guam. LTJG Charles E. Bruess, USNR, from NJS to ComOne. CDR Bobby D. Bryant, USN, from AFSC, Norfolk to
OJAG. LTJG Edward M. Byrne, USN, from NJS to NAF, Sigo
nella, Sicily. LCDR Owen L. Cedarburg, USN, from Army JAG
School, Charlottesville to NAVSTA, Subic Bay. LT Henry S. Chapman, USNR, from ComThirteen to
NSD, Seattle. LT Leo J. Coughlin, Jr., USN, from 1st MARAIRWING,
FMF, PAC, Iwacuni, Japan, to ComThirteen. LTJG William A. Daggett, USNR, from NAVSTA,
Gitmo to NAVSTA Boston. LTJG Richard D. DeBobes, USNR, from NAS, Quonset
Point to COMNAVAIRPAC. CAPT Anthony J. DeVico, USN, from OJAG to C.O.,
NJS. LT Thomas E. Donahue, USN, from Army JAG School
(under instruction) to Staff and Faculty, Army JAG
School. LT Kenneth W. Drew, USN, from COMSUBRON 14,
Holy Loch to NJS. LCDR John P. Dunbar, USN, from CINCLANTFLT to
LT Albert W. Eoff, USN, from USS FORRESTAL to
ADCOM NTC, Great Lakes. LCDR Frank J. Flynn, USN, from PRNC to ComCru
DesLant. LT Paul M. Fredrix, USNR, from Hdq. SUPPACT, Sai
gon, Viet-Nam to RECSTA, Treasure Island. CAPT Dana P. French, USN, from ComOne to COM
NAVACTS, Italy. LT Matthew J. Gormley, III, USNR, from NAVSHIPYD, Portsmouth to U.S. Sending State Office,
Canberra, Australia. LCDR Gardiner M. Haight, USN, from NJS to OJAG. CAPT Leonard B. Hardy, USN, from CINCUS
NAVEUR to SACLANT. LTJG Robert D. Henry, USNR, from NAVSTA, Adak,
Alaska to Com Thirteen. LTJG Joseph A. Hudock, USNR, from NJS to FIRST
MARAIRWING, FMF, PAC, Iwakuni, Japan. LT John S. Jenkins, USN, from ComOne to OJAG. LTJG Jorn Erik Pugdahl Jensen, USNR, from NJS to
Portsmouth Naval Shipyard, Portsmouth. LCDR Arthur J. Johns, USN, from Naval War College
(under instruction) to Staff, Naval War College. LTJG Thomas Kallay, USNR, from NJS to COMNAV
FOR MARIANAS. CDR Alex A. Kerr, USN, from Office of Secretary of
the Navy to Commander Seventh Fleet. CAPT Warren C. Kiracofe, USN, from Commander
Seventh Fleet to JAGO. CDR Konstantine A. Konopisos, USNR, from NJS to
Commander Sixth Fleet. LCDR Keith D. Lawrence, USN, Army JAG School to
COMSERVLANT, Norfolk. LT Gary W. Leonhardt, USNR, from OJAG to AEW
BARRONPAC. LT James A. Malkus, USNR, from COMSERVLANT to
COMPHIBPAC. CAPT Robert R. Marsh, USNR, from Commander Sixth
Fleet to OJAG. LTJG Thomas P. McKeon, USNR, from NJS to NAV
BASE, Subic Bay. CDR William J. McMahon, USNR, from NAVSTA, Ke
flavik, Iceland to COMICEDEFOR. CAPT Louis L. Milano, USN, from COMNAVACTS,
Italy to ComThree. CAPT Ashton C. Miller, Jr., USN, from JAGO to
CINCUSNAVEUR. LT William W. Moore, USNR, from NAVSTA, Annapo
lis to NAVSTA, Gitmo. CDR Frank A. Nelson, USN, from NAS, Alameda, to
NJS. CDR William R. Newsome, USN, from COMNAVBASE,
Newport to OJAG. CAPT Benjamin W. Partridge, Jr., USNR, from COM
ICEDEFOR to Commander NAV BASE, Newport. CDR Donald J. Pepple, USN, from AFSC to ComFive. CDR William D. Pfeiffer, USN, from NJS to Naval
War College. LT Roy J. Rawls, USN, from ComNine to COMSUB
RON 14, Holy Loch, Scotland. CDR Horace B. Robertson, Jr., USN, from ComFive to
THE FRESH COMPLAINT RULE
LT THOMAS J. HILLIGAN, USNR*
IN GENERAL, THE testimony of a witness
IN GENERAL, THE testimony of a witness may never be corroborated by proof that the witness made the same statement of facts on another occasion when not under oath. Such statements are hearsay and are usually excluded as incompetent. However, one exception to the rule exists in cases of rape and other sexual offenses. In trials for such offenses, the courts—both civilian and military-are unanimous in holding that, through the testimony of the prosecuting witness or some other witness, evidence may be introduced to show that the victim made complaint of the attack sometime after its commission. The purpose of receiving such evidence is solely to corroborate the testimony of the prosecuting witness—not as independent evidence of the offense charged.
Historically, this rule or doctrine as many writers refer to it—is probably a survival of the ancient requirement that in a rape case the injured woman must make hue and cry as a preliminary to bringing her suit. Regardless of its origins, however, the real foundation of the rule is based on the common experience of mankind. When an outrage of a sexual nature has been committed on a woman, her natural instincts prompt her to complain. A failure to speak out concerning the matter is inconsistent with the victim's accusation in court and constitutes in effect a self-contradiction discrediting her testimony. A rule which allows evidence of a complaint permits the prosecution to forestall the natural assumptions which might arise in the jurors' minds from such failure. It is noteworthy that such evidence may be introduced regardless of whether or not the defense has put the silence of the victim in issue.3
In discussing the charge of rape, the Manual for Courts-Martial, United States, 1951, states: “it is an accusation easy to be made, hard to be proved, but harder to be defended by the party accused, though innocent." 4 This statement is *Lieutenant Thomas J. Hilligan, USNR, is presently assigned as Appellate Defense Counsel in the Office of the Judge Advocate General, West Coast. He holds the B.A. degree from the University of Notre Dame and the LL.B. degree from the University of Michigan. He is a member of the Wisconsin bar. 1. Weems v. State, 141 So, 215 (1932); People v. Marx, 125 N.E.
719 (1920); People v. Morcumb, 82 P. 2d 714 (1938). 2. 4 Wigmore, Evidence (3d ed., 1940), sec. 1134. 3. Id. sec. 1135. 4. MCM, 1951, Par. 199a.
equally applicable to other sexual offenses. Since the rule under consideration allows the testimony of the complaining witness to be corroborated, its effect is to aid the prosecution in proving its case. It is clear that certain safeguards are necessary if the rights of the defendant, often hard-pressed by the accusation alone, are to be protected.
The reasoning supporting the rule suggests some of its limitations. If the object of the doctrine is to repel the supposed inconsistency between the victim's silence following the alleged offense and her testimony at trial, it is obvious that if there has been no testimony from the victim there can be no inconsistency, and no need of corroboration. The doctrine's first requirement, therefore, is that the complainant must be a witness. The only exception to this requirement appears in a few civilian cases in which the prosecuting witness cannot competently testify due to extreme youth or infirmity. In such situations some tribunals have held that the absence of the complainant from the witness stand does not exclude evidence of the complaint from other sources."
Some confusion has developed as a result of the failure to distinguish fresh complaints as such from statements made by the victim as part of the res gestae or as spontaneous exclamations. Although closely related and sometimes overlapping, the rules governing admission of such complaints and declarations are separate and distinct. When a complaint is made a part of a sexual assault itself, or is caused by the excitement and emotion generated by the event, evidence of that fact is admissible under both rules. But a statement made as part of the res gestae or as a spontaneous exclamation is not always in the form of a complaint. On the other hand, a statement may be made hours after an incident has ended and long after all emotions and excitement have ceased; yet if that statement was in the nature of a complaint evidence of it may be received.
These distinctions are obvious but they are nonetheless important. For one thing, they determine whether or not the details of a given complaint are admissible. Clearly, if the com5. Logsdon v. Commonwealth, 286 SW 1067 (1926). Contra, State v.
Meyers, 64 N.W. 697 (1895). 6. MCM, 1951, Par. 142a, c.