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RIGHT TO COMPULSORY PROCESS

LT ALVERN D. CHRISTIAN, USN*

HE RIGHT OF an accused to compulsory process in criminal prosecutions to obtain witnesses in his behalf is fundamental in our judicial system. system. Although the defendant charged with a felony at common law was not accorded the right to compulsory process,1 our founding fathers saw fit to specifically provide for this in the Sixth Amendment to the Constitution, which provides in part:

In all criminal prosecutions, the accused shall enjoy the right *** to have compulsory process for obtaining witnesses in his favor.

This fundamental right is that of issuing subpoenas as in civil cases. In appropriate cases orders will be issued to insure the presence of military personnel as witnesses before a courtmartial. Civilian witnesses may be obtained before courts-martial in accordance with Article 46, Uniform Code of Military Justice, which provides:

The trial counsel, defense counsel, and the courtmartial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe. Process issued in court-martial cases to compel the production of other evidence shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue and shall run to any part of the United States, its territories, and possessions."

The Congressional intent of Article 46 is explained in the following introductory comment made during the hearings on the Code before the House of Representatives Committee on Armed Services: +

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The first sentence of the article is intended to insure equality between parties in securing witnesses. is felt appropriate to leave the mechanical details as to issuance of process to regulation.

'Lieutenant Alvern D. Christian is presently assigned to the Military Justice Division in the Office of the Judge Advocate General. He received a B.S. degree from Milton College, Milton, Wisconsin, in 1956 and graduated from the University of Wisconsin Law School in 1959. He is a member of the State Bar of Wisconsin and the bar of the U.S. Court of Military Appeals and holds memberships in the American Bar and Judge Advocates Associations.

1. Pittman v. State, 51 Fla. 94, 41 So. 385 (1906).

2. Keller v. State, 123 Ind. 110, 23 N.E. 1138 (1890).

3. 10 U.S.C. § 846.

4. Index and Legislative History, Uniform Code of Military Justice, 1057.

With the foundation thus laid let us direct our attention to the extent to which that right may be exercised. In doing so, we might keep in mind the following situation which was recently posed by the Court of Military Appeals in an opinion concerning an accused's right to compulsory process:

It is not beyond the realm of possibility that some accused may be moved to request the personal presence of any or all of the Joint Chiefs of Staff or the Chairman thereof."

Should such a situation arise wherein an accused charged with a criminal offense requests as witnesses such notable personages as the Joint Chiefs of Staff, what disposition should be made of the request? This article does not presume to provide a complete resolution of the problem but does post guidelines within which such a request or any request by an accused for a witness may be determined. To this end the various statutory provisions and the ramifications as presented in judicial decisions regarding the right to compulsory process will be discussed.

Initially it must be recognized that the matter of who will be called as witnesses for an accused is for the accused and his counsel to decide, and it does not rest with either the prosecution or the person who has been subpoenaed. When the accused and his counsel have determined which witnesses they believe are necessary to the defense of the case, it then becomes necessary to obtain the presence of those witnesses in court by the processes available to them, or, more pertinently stated for our purposes here, to whom and by what means are the witnesses to be requested by the defense so that they will be brought before the court.

In accordance with the Manual for CourtsMartial, U.S., 1951, paragraph 115a, a defense request for witnesses should be directed to the trial counsel by the military accused or his counsel. Paragraph 115a provides that the trial counsel should procure the attendance of wit

5. United States v. Sweeney, 14 USCMA 599, 606, 34 CMR 379, 386 (1964).

6. United States v. Seeger, 180 F. Supp. 467 (S.D. N.Y. 1960).

nesses for the prosecution and the defense and that where there is a disagreement between the trial counsel and the defense counsel as to whether the testimony of a witness requested by the defense would be necessary, the matter will be referred for decision to the convening authority or to the court, depending on whether the question arises before or after the court

convenes.

Paragraph 44f (2) of the Manual for CourtsMartial, U.S., 1951, relative to the duties of trial counsel prior to trial, reiterates the responsibility of the trial counsel to obtain the attendance of witnesses desired by the defense, unless he is in disagreement as to the necessity of the attendance of the desired witnesses. In the event of a disagreement he will report the matter to the convening authority.

Paragraph 44f (2) provides in pertinent part: Prior to trial he will notify and arrange to have present at the trial witnesses who are to testify in person (including witnesses desired by the defense). *** If in disagreement with the defense counsel as to whether the attendance of a witness requested by the defense is necessary, he will report the matter to the convening authority in the manner prescribed in 115a.

The regulations and procedures followed in the military in the main conform to those applicable in civilian Federal courts. Rule 17 (b) of the Federal Rules of Criminal Procedure provides:

Indigent Defendants. The court or a judge thereof may order at any time that a subpoena be issued upon motion or request of an indigent defendant. The motion or request shall be supported by affidavit in which the defendant shall state the name and address of each witness and the testimony which he is expected to give if subpoenaed, and shall show that the evidence of the witness is material to the defense, that the defendant cannot safely go to trial without the witness and that the defendant does not have sufficient means and is actually unable to pay the fees of the witness.

A comparison of Rule 17(b) and the provisions of the Manual reveals little difference other than a monetary one regarding the payment of costs attendant upon a witness' appearance in civilian Federal court at the request of the indigent defendant. Unless the military Code specifically provides otherwise, rules applicable to subpoena of witnesses before civil tribunals apply with equal force to military tribunals. It has been held by the Court of Military Appeals that the provisions of paragraph 115a of the Manual for Courts-Martial, U.S.,

7. United States v. Shibley, 112 F. Supp. 734 (S.D. Cal. 1953).

1951, relating to procurement of witnesses, have the force of law.

With these considerations before us, we may return to discussing the request of an accused for witnesses in his behalf. When the military accused and his counsel have determined the witnesses whose attendance they desire at the trial, a timely request for those witnesses should be submitted to the trial counsel. The issue as to whether or not a request once submitted has been timely submitted is not easily resolved. The Court of Military Appeals in discussing that issue has said:

The touchstone for untimeliness should be whether the request is delayed unnecessarily until such a time as to interfere with the orderly prosecution of the

case.

In that case the Court of Military Appeals noted that the accused's request was made the day before trial and the desired witness was apparently in the stockade where the trial was held and could have been brought over to testify in short order. The denial of the accused's request under these circumstances on the ground of untimeliness was held erroneous and to be a denial of a substantial right of the accused. The Court also noted that if good cause had been shown for the delay, a continuance should have been granted to permit the evidence to be produced. On the other hand, a Federal Circuit Court of Appeals, after noting that the defendant knew for several months of the whereabouts of the requested witness and also when the case would come to trial, but failed to present an application for a writ for attendance of the witness until the day set for trial, held that the request under those circumstances was not timely.10 It is apparent upon an analysis of the two cases that whether an accused's request is timely or not will depend on the circumstances of each case.

In the event of a disagreement between the trial counsel and the defense counsel as to the necessity of the testimony to be given by the requested defense witness, the defense should comply with the provisions of paragraph 115a of the Manual for Courts-Martial, U.S., 1951, regarding the submission of the matter in writing to the convening authority or the court for decision.

Paragraph 115a provides in pertinent part:

* where there is disagreement between the trial counsel and the defense counsel as to whether the

8. United States v. Smith, 13 USCMA 105, 32 CMR 105 (1962). 9. United States v. Hawkins, 6 USCMA 135, 142, 19 CMR 261, 268 (1955).

10. Gibson v. United States, 53 F. 2d 721, 722 (8th Cir. 1931).

testimony of a witness so requested would be necessary, the matter will be referred for decision to the convening authority or to the court, according to whether the question arises before or after the court convenes. A request for the personal appearance of a witness referred to the convening authority or to the court for decision will be submitted in writing, together with a statement, signed by the counsel requesting the witness, containing (1) a synopsis of the testimony that it is expected the witness will give, (2) full reasons which necessitate the personal appearance of the witness, and (3) any other matter showing that such expected testimony is necessary to the ends of justice.

The failure of the trial counsel in a disagreement situation to obtain the requested witness where the defense has failed to comply with the provisions of paragraph 115a, has been indicated by the Court of Military Appeals to be nonprejudicial." The failure by the defense to comply with the similar requirements in federal criminal court proceedings also inures to the detriment of the defendant. A Federal Court of Appeals stated that where the record indicates no attempted compliance with the rule providing for issuance of subpoenas upon motion of the indigent defendant, the defendant cannot raise the issue of denial of the right to compulsory process on appeal.12 A failure to file the required affidavit may also result in a federal civilian court's proper refusal to issue the desired subpoena.13

When the request for compulsory process has been submitted in accordance with paragraph 115a, it then becomes a matter for the convening authority or court for appropriate disposition. If due consideration is to be given the request, many factors will have to be weighed and considered before any action to obtain the requested witnesses is taken or a denial of the request given. The outright denial of the request without more would indeed be giving little attention to an accused's constitutional right. A board of review in speaking on this subject has stated that a denial of compulsory process to obtain witnesses for the accused, standing alone, requires reversal of a conviction.14 Further an accused cannot be forced to present the testimony of the requested witness by stipulation or deposition.15

The question arises then whether the accused's request for compulsory process must be honored, no matter what the circumstances and regardless of the burden placed on the prosecution

11. United States v. Harvey, 8 USCMA 538, 25 CMR 42 (1957).
12. Word v. United States, 199 F. 2d 625 (10th Cir. 1952).
13. Meeks v. United States, 179 F. 2d 319 (9th Cir. 1950).
14. NCM 58-01699, Mahoney, 27 CMR 898 (1959).

15. United States v. Thornton, 8 USCMA 446, 24 CMR 256 (1957).

or the delay which may result in the trial of the case. In this regard, it seems generally accepted that an accused charged with a criminal offense does not have an absolute right to compulsory process.16 Although the accused may not have an absolute right to compulsory process, his request must nevertheless be carefully considered. In this respect note the following statement made by a Federal Court of Appeals in the case of Greenwell v. United States.17

*** if the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the government shows, either by introducing evidence or from matters already of record, that the averments are untrue or that the request is otherwise frivolous.18

It is further generally accepted that in federal civilian procedure, a motion addressed to the court for the issuance of compulsory process is a discretionary matter for the court to determine.19 Similarly, it would seem that a request by the military accused for compulsory process is a discretionary matter for the convening authority or the court-martial to determine.20 The Court of Military Appeals in the case of United States v. Sweeney 21 noted in its opinion the federal civilian rule as to the request of an accused for compulsory process being a discretionary matter for the court and concluded later in its opinion that the opinion was "not to be construed as granting carte blanche authority for the issuance of subpoenas in all cases." 22 Board of Review has held it to be discretionary.23 Proceeding forward then on the basis that the convening authority or the court-martial does possess the discretionary authority to deny as well as grant the military accused's request for compulsory process, the next question which arises is how or by what means should the request be determined? The basic test to be ap

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16. Reistroffer v. United States, 258 F. 2d 379 (8th Cir. 1958), cert. denied, 358 U.S. 927 (1959); United States v. Zuideveld, 316 F. 2d 873 (7th Cir. 1963); Murdock v. United States, 283 F. 2d 585 (10th Cir. 1960); United States v. McGaha, 205 F. Supp. 949 (E.D. Tenn. 1962).

17. 317 F. 2d 108 (D.C. Cir. 1963). 18. Id. at 110.

19. Reistroffer v. United States, supra note 16; Murdock v. United States, supra note 16; Flanagan v. United States, 308 F. 2d 841 (5th Cir. 1962); United States v. McGaha, supra note 16. 20. But note Judge Latimer's dissent in the case of United States v. Thornton, supra note 15, which tends to indicate the contrary is true or that such discretion is more limited in military law, wherein he states that "a review of the federal civilian cases discloses that a judge has wide latitude in granting or denying the motion of an indigent defendant to subpoena a witness and I would apply that principle in military law." 21. Supra note 5.

22. Id. at 605, 34 CMR at 385.

23. CM 377832, Batchelor, 19 CMR 452 (1955).

plied to the testimony of each requested witness is that of materiality and necessity. The Court of Military Appeals in the case of United States v. DeAngelis 24 stated that "the testimony of any witness requested by the defense must be shown to be both material and necessary as a condition precedent to the issuance of process to compel his attendance." 25 In the absence of a showing of materiality or necessity, a denial of the accused's request will not be considered prejudicial.26 Whether a requested witness's testimony is both material and necessary is a question to be determined by the particular facts of the individual case.27

Denials of an accused's request for a witness as sustained by both federal and military appellate courts in their decisions have been based on varying grounds under the material and necessary test. The expected testimony of the witness or witnesses requested by the defense to be considered material and necessary, (1) must be relevant and admissable; 28 (2) may not be merely cumulative testimony; ; 29 (3) may not be incompetent hearsay or opinion testimony; 30 (4) should be related to the issues and not so farfetched as to have no probative value; 31 (5) may not be for impeachment purposes; 32 and (6) the averments of the expected testimony may not be inherently incredible on their face.33 A request for witnesses or evidence which is voluminous in nature, in the absence of a showing of materiality or necessity or prejudice to the accused, may be properly denied. In addition, a Federal Court of Appeals has held that where it has been ascertained that the requested defense witness would, if called, claim the Fifth Amendment, the request was properly denied by the lower court.35 An examination of the various cases in which the denial of an accused's 24. 3 USCMA 298, 12 CMR 54 (1953); see also United States v. Thornton, supra note 15, and ACM 10050, Graalum, 19 CMR 667, 682 (1955).

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25. United States v. DeAngelis, supra note 24 at 302, 12 CMR at 58. 26. Batchelor, supra note 23.

27. United States v. Harvey, supra note 11. 28. Ibid.

29. Flanagan v. United States, supra note 19; United States v. Vigneault, 3 USCMA 247, 12 CMR 3 (1953).

30. Graalum, supra note 24.

31. Ibid.

32. Flanagan v. United States, supra note 19. 33. Greenwell v. United States, supra note 17.

34. See United States v. Batchelor, supra note 23. In this case the denial of a defense request to the investigating officer for hundreds of government files, newspapers, and periodical articles, broadcasts, speeches, and testimony of numerous persons was held not to be prejudicial under the circumstances; United States v. Zuideveld, supra note 16. In this case the denial of a defense request for subpoena of approximately 420 witnesses listed as coming from most of the states and some foreign countries at government expense made on the first day of trial was held not to be an abuse of the discretion of the court. 35. Murdock v. United States, supra note 16.

request for compulsory process has been sustained or held proper, indicates that the same testimony or evidence if proffered by the prosecution would be equally unacceptable.

In making the determination as to whether the requested witness' testimony or the evidence is material and necessary thus requiring that the request be honored, the Court of Military Appeals has set forth one other guideline which should be considered. In the case of United States v. Thornton,36 the Court held that it was prejudicial error to refuse to subpoena a defense witness whose expected testimony went "to the core of the accused's defense." 37 This criterion has been further amplified by the Court of Military Appeals in the recent case of United States v. Sweeney.38 In that case the Court held the expected testimony of two witnesses to the effect that during the period the accused was alleged to have stolen money from the ship's store, other unauthorized persons could have gained access to the merchandise, did not go to the core of the accused's defense. However, the personal testimony of two other witnesses, one a rear admiral and the other a lieutenant, who were requested by the accused and whose testimony was to be as to the character and reputation of the accused, was held to go to the core of the accused's defense where the accused defended on the ground of good character and reputation in the face of testimony by an alleged co-conspirator who testified under the letter of immunity and whose own character was severely impeached. The Court also noted in that case that evidence of good character and military proficiency is admissible on the merits.

In view of the rule that the granting or denying of an accused's request for compulsory process is discretionary with the federal court, the action thereon will not be reviewed without a showing of clear abuse.39 Abuse of discretion as to a military accused's request for compulsory process has also been held as a ground for appellate review of a determination of the request.40

From the foregoing, it may be seen that the accused's right to compulsory process is a substantial right, the determination of which is not easily made. Each request of an accused for compulsory process must be examined and weighed upon the circumstances under which it is made.

36. Supra note 15.

37. Id. at 450, 24 CMR at 260.

38. Supra note 5.

39. Gibson v. United States, supra note 10.

40. United States v. Thornton, supra note 15.

INCOME TAXES FOLLOWING SEPARATION

OR RETIREMENT FROM ACTIVE DUTY

J. O. ROLFSON, ESQ.*

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S IN LIFE generally, where there is always a question of what comes next, there are questions in the minds of many active duty personnel as to what happens tax-wise after separation or retirement from active duty. This article will not go into detail concerning the events which lead up to and result in separation or retirement from active service, but they will be referred to briefly in explaining the Federal income tax problems.

SEPARATION WITHOUT RETIREMENT

VOLUNTARY

Many servicemen are separated from active duty without being entitled to immediate retirement pay. Some of these separations, e.g., expiration of enlistment, resignations of regular officers, completion of obligated service by reservists, etc., do not entitle the members to any extraordinary lump sum payments to cause special income tax problems. They are paid through the date of separation, plus a lump-sum for not more than 60 days leave, and the entire amount is included in wages earned for the year. Payments for lump-sum leave are included with other wages for the month of separation and Federal income taxes are withheld from the aggregate amount paid.

INVOLUNTARY SEPARATION-DISABILITY

Frequently a member incurs a physical disability which makes him unqualified to continue to perform the duties of his rank or rating but which is insufficient to qualify him for disability retired pay. Upon being separated from active service and the Navy, he becomes entitled, in addition to pay through the last day of service plus accrued leave, to a lump-sum called "dis

*Mr. Rolfson is the Head of the Income Tax Branch of the Office of the Judge Advocate General. He received his LL.B. from the George Washington University in 1957 and is a member of the Bar of the District of Columbia. Mr. Rolfson also holds the B.C.S. and the M.C.S. degrees in Accounting and has a wide and varied experience in the Federal and State tax field. He is a Commander in the Naval Reserve.

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Each year a number of regular officers find that for various reasons not involving disability, such as failure of selection 2 or unsatisfactory performance of duty they are involuntarily discharged and paid a large, fully taxable lump-sum called "severance pay" in addition to regular pay through date of discharge and accrued leave. The lump-sum is equal to two months' basic pay for each year of service and is limited to two years' basic pay.

Similarly, a member of a reserve component who is involuntarily released from active duty after 5 years of continuous active service (except for breaks in service of not more than 30 days) may be entitled to taxable lump-sum readjustment pay on the basis of two months' basic pay for each year of active service. The maximum amount may not exceed two years' basic pay or $15,000, whichever amount is the lesser.

In previous years these lump sums created an unfavorable Federal income tax picture because the individuals involved frequently found themselves paying income taxes at higher rates than usual.

That tax problem is past now. The Revenue Act of 1964 amended sections 1301-5 of the Code to provide for income averaging rules

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1. 10 U.S.C. § 1212.

2. 10 U.S.C. § 6382-3. 3. 10 U.S.C. § 6384.

4. 50 U.S.C. § 1016(a).

5. All references to the "Code" are to the Internal Revenue Code of 1954, as amended, Title 26, United States Code.

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