Chapter XXV.
Courts-martial--Rules of Evidence

110. COURTS-MARTIAL--RULES OF EVIDENCE--Synopsis of Chapter.--In this synopsis the left-hand references are to paragraphs; the right-hand, to pages.

     Par.					Page
     111.	General rules				109
     112.	Presumptions; direct and circumstantial evidence				110
     	a.	Presumptions			110
     	b.	Direct and circumstantial evidence			111
     				General	111
     				Testimonial knowledge	111
     				Opinion evidence	111
     				Accused's bad character	112
     113.	Hearsay rule
     	a.	General rule			113
     	b.	Illustrations			113
     	c.	Exceptions			114
     114.	Confessions; accused's admissions; acts and statements of conspirators and accomplices				114
     	a.	Confessions			114
     				General observations	114
     				Rules	115
     	b.	Accused's admissions			116
     	c.	Acts and statements of conspirators and accomplices			117
     115.	Dying declarations; res gestae				118
     	a.	Dying declarations			118
     	g.	Res gestae			118
     116.	Documentary evidence: Proving contents of writing; authentication of writings				118
     	a.	Proving contents of writing			118
     				General rule	118
     				Exceptions	119
     	b.	Authentication of writings			120
     117.	Documentary evidence: Official writings; former testimony				120
     	a.	Official writings			120
     				General rule	120
     				Exceptions	121
     	b.	Former testimony			121
     118.	Documentary evidence: Books of account; maps, photographs, etc.				122
     	a.	Books of account			122
     	b.	Maps, photographs, etc.			122

Par.					Page
119.	Documentary evidence: Depositions; memoranda; affidavits				123
	a.	Depositions			123
				General	123
				Offering deposition	123
				Reading, etc., of depositions	123
	b.	Memoranda			124
	c.	Affidavits			124
120.	Competency of witnesses				124
	a.	General			124
	b.	Children			124
	c.	Conviction of crime			125
	d.	Interest or bias			125
121.	Examination of witnesses				126
	a.	General			126
	b.	Cross; redirect and recross examination; examination by the court or a member			126
				Cross-examination	126
				Redirect and recross examination	127
				Examination by the court or a member	127
	c.	Leading questions; ambiguous and misleading questions; other objectionable questions			128
				Leading questions	128
				General rule	128
				Exceptions	128
				Ambiguous or misleading questions	129
				Other objectionable questions	129
122.	Degrading and incriminating questions				129
	a.	Compulsory self-degradation			129
	b.	Compulsory self-incrimination			129
123.	Privileged and nonprivileged communications				130
	a.	General			130
	b.	Certain privileged communications			130
				State secrets and police secrets	130
				Communications between husband and wife and between attorney and client	131
				Confidential papers	131
	c.	Certain nonprivileged communications			131
				Telegrams	131
				Communications to medical officers and civilian physicians	131
124.	Credibility of witnesses; impeachment of witnesses				132
	a.	Credibility of witnesses			132
	b.	Impeachment of witnesses			132
				General	132
				Various grounds	133
				General lack of veracity	133
				Conviction of crime	133
				Inconsistent statements	134
				Prejudice, bias, etc.	134
125.	Judicial notice				134

Par.					Page
126.	Miscellaneous matters: Intent; stipulations; waiver of objections				135
	a.	Intent
				General	135
				Drunkenness	136
				Ignorance of fact	136
				Ignorance of law	136
	b.	Stipulations			136
				As to facts	136
				As to testimony and documentary evidence	136
	c.	Waiver of objections			137

111. COURTS-MARTIAL--RULES OF EVIDENCE--General Rules.--The rules stated in this chapter are applicable in cases before courts-martial, including summary courts-martial. Other rules of evidence so applicable are stated in various special connections throughout this manual, e.g., 130 (Desertion). So far as not otherwise prescribed in this manual or by act of Congress, the rules of evidence generally recognized in the trial of criminal cases in the district courts of the United States will be applied by courts-martial.

     On interlocutory questions other than challenges, the court may in its discretion relax the rules of evidence to the extent of receiving affidavits, certificates of military and civil officers, and other writings of similar apparent authenticity and reliability, such as a physician's certificate of the illness of a witness, unless on objection to a particular writing it is made to appear that such relaxation might injuriously affect the substantial rights of an accused or the interests of the Government.

     Evidence to be admissible must be material and relevant. Evidence is not material when the fact, which it tends to prove is not part of the issues in the case. Evidence is not relevant when, though the fact which it is intended to prove thereby is material, yet the evidence itself is too remote or far-fetched to have any probative value for that purpose. If evidence is held immaterial or irrelevant to the issue of guilt or innocence, but is received in extenuation, it must be considered solely in connection with the measure of punishment in the event of conviction.

     Evidence, apparently irrelevant, may be admitted provisionally upon a statement of the party offering it that other facts later to be proved will show its relevancy, but should afterward be excluded if its relevancy is not ultimately shown. However, it is generally safer, and will usually be found to save time and shorten the record in the end, to require the party offering the evidence first to prove the facts showing its relevancy. He may, for that purpose, be permitted temporarily to withdraw a witness or witnesses and to recall one or more witnesses who have been partially examined.

The court may, in its discretion, limit the number of witnesses called by either side to testify to the same matter. This rule especially applies to character witnesses.
112. COURT-MARTIAL--RULES OF EVIDENCE--Presumptions; Direct and Circumstantial Evidence.

     1. Presumptions.--Presumptions or inferences may be considered as falling into two classes: First, those which arise without the introduction of any evidence; and, second, those which can not arise until after some evidence has been introduced.

        In the first class are those presumptions which relate to facts, the existence of which courts are bound to presume in the absence of evidence to the contrary. Thus, an accused person is presumed to be innocent until his guilt is proved beyond a reasonable doubt; an accused is presumed to have been sane at the time of the offense charged until a reasonable doubt of his sanity at the time appears from the evidence; and, in the absence of sufficient evidence to the contrary, a woman's chastity is presumed.

        In the second class are those presumptions which relate to facts that a court may infer, if it deem such inference warranted by all the circumstances, from the existence of other facts which must, of course, be first established. In this connection see 112b (Circumstantial evidence). Following are examples of this second class of presumptions:

        A sane person is presumed to have intended the natural and probable consequences of acts which he is shown to have committed.

        Persons shown to be acting as public officers are presumed to be legally in office and to perform their duties properly.

        Malice is presumed from the use of a deadly weapon.

        A condition having been shown to have existed at one time, the general presumption arises, in the absence of any indication to the contrary, that such condition continues. Thus, in the absence of a showing to the contrary, it is presumed that one's residence remains unchanged, and that an office holder continues in office until the end of the term for which appointed or elected.

        Proof that a letter correctly addressed and properly stamped or franked was deposited in the mail raises a presumption of delivery to the addressee, and a similar presumption arises with regard to telegrams regularly filed with a telegraph company for transmission.

        Identity of name raises a presumption of identity of person, the strength of which presumption will, however, of course depend upon how common the name is, and upon other circumstances.

        Proof that a person was in possession of recently stolen property, if not satisfactorily explained, may raise a presumption that such person stole it.

The weight to be given presumptions of the second class necessarily depends upon all the circumstances attending the proved facts which give rise to the presumptions. For this reason the making and weighing of such presumptions and the consideration of evidence tending to overcome them call for the application by members of courts of their common sense and general knowledge of human nature and the ordinary affairs of life.
2. Direct and circumstantial evidence.--General.--If a statement made by a witness or contained in a document is such that if true it would directly prove or disprove a fact in issue, the statement is called direct evidence. If the statement would, if true, directly prove or disprove not a fact in issue but a fact or circumstance from which, either alone or in connection with other facts, a court may, according to the common experience of mankind, reasonably infer the existence or nonexistence of another fact, which is in issue, then such a statement is called indirect or circumstantial evidence. For example, on a charge of larceny of a purse, testimony of a witness that he saw the accused take the purse from the owner's overcoat is direct evidence, and testimony of a witness that he found the purse hidden in the accused's locker is circumstantial evidence of the taking.

   Circumstantial evidence is not resorted to as a secondary or inferior species; i.e., because there is an absence of direct evidence. It is admissible even when there is direct evidence. There is no general rule for contrasting the weight of circumstantial and direct evidence. The assertion of an eyewitness, who is absolutely trustworthy in every respect, may be more convincing than the contrary inferences that appear probable from circumstances. Conversely, one or more circumstances may be more convincing than a plausible witness.

   Testimonial Knowledge.--A primary qualification in a witness is that he should speak only of what he has learned through his senses. For instance, a witness might testify that while on sentry post at night he heard three shots and saw two persons running in the distance; but he should not proceed further and state that the shots killed a mule, and that the accused was one of the persons running where his knowledge as to the effect of the shots and the identity of the persons running away is based on rumors and gossip heard the following day.

   Opinion Evidence.--It is a general rule that a witness must state facts and not his opinions or conclusions. However, on matters within the common observation and experience of men, a witness may express an opinion; e.g., as to the speed of an automobile or as to whether or not a certain person was drunk at a certain time, or as to whether a voice heard was that of a man, woman, or child.

An expert witness--that is, one who is skilled in some art, trade, or science, or who has knowledge and experience in relation to matters which are not within the knowledge of men of common education and experience generally--may express an opinion on a state of facts which is within his specialty and which is involved in the inquiry. However, an expert witness should be qualified as such before the court, prior to being permitted to express his opinion.

Accused's Bad Character.--A fundamental rule is that the prosecution may not evidence the doing of the act by showing the accused's bad moral character or former misdeeds as a basis for an inference of guilt. This forbids any reference to his bad character in any form, either by general repute or by personal opinions of individuals who know him, and any reference in the evidence to former specific offenses or other acts of misconduct, whether he has or has not ever been tried and convicted of their commission.

There are certain exceptions to this rule, among them the following:

The accused may introduce evidence of his own good character, including evidence of his military record and standing in order to show the probability of his innocence, and if he does so the prosecution may introduce evidence in rebuttal.

If the accused takes the stand as a witness, his reputation for truth and veracity may be shown. See 124 (Impeachment).

When criminal intent, motive, or guilty knowledge in respect of the act is an element in the offense charged, evidence of other acts of the accused, not too remote in point of time, manifesting that intent, motive, or knowledge, is not made inadmissible by reason of the fact that it may tend to establish the commission of another offense not charged. The court should not consider evidence so offered as bearing in any way upon the question of the accused's character.

The following are illustrations of the rule and the exceptions:

On a charge of knowingly passing a counterfeit coin, evidence that the accused had on another recent occasion passed a counterfeit coin is admissible as tending to establish that on the instant occasion he knew the coin to be a counterfeit.

On a charge of assaulting a fellow soldier with intent to wound, a former assault on another soldier six months before and under entirely different circumstances would not be admissible, having no bearing on the intent in the case charged.

On a charge of attempt to desert, the fact that the accused had recently assaulted and beaten another soldier and was under arrest awaiting trial for the offense would be admissible as evidence of a probable motive to attempt to desert.

On a charge of falsification of accounts of stores, the fact that the accused had embezzled some of the same stores, if offered as evidence of a motive for concealing the embezzlement by falsifying accounts,

would be admissible; but evidence of a conviction of falsification before enlistment in a totally distinct transaction would be inadmissible, since such evidence bears solely upon his general moral character and not upon his present intent or motive.
113. COURTS-MARTIAL--RULES OF EVIDENCE--Hearsay rule.

     1. General rule.--Hearsay is not evidence. By this rule is meant simply that a fact can not be proved by showing that somebody stated it was a fact. The fundamental reasons for the rule are that the author of the statement was not under oath, and was not subject to cross-examination, and that the court had no opportunity of observing his demeanor.

        Of course the fact that a given statement was or was not made may itself be material. In such a case a witness may testify that such a statement was made, but not for the purpose of proving the truth of such statement.

     2. Illustrations.--Captain A conducted the investigation of charges against the accused. Captain A's testimony at the trial that witnesses other than the accused, at the investigation, testified to certain facts, is inadmissible to prove such facts because Captain A's testimony, not being based upon his personal knowledge of such facts, would be hearsay. However, the testimony of any person present at the investigation that he heard the investigating officer inform the accused that he was not required to make any statement and that any statement he might make might be used against him, is admissible for the purpose of showing that a confession made by the accused at the investigation was voluntary. This is true because in the latter case the testimony is offered, not for the purpose of proving the truth of the statements made by the investigator, but merely to prove the fact that such statements were made to the accused. Here the testimony is not hearsay because the witness has personal knowledge of the fact sought to be proved by his testimony.

        A soldier is being tried for larceny of clothes from a locker. Private A is able to testify that Private B told Private A that he, Private B, about the time the clothes were stolen, saw the accused leave the quarters with a bundle resembling clothes. Such testimony from Private A would be hearsay and would be inadmissible. Private B himself should be called.

        The fact that the statement was made to an officer in the course of an official investigation does not make hearsay admissible. For instance, if Private B had made his statement to Captain C in the course of an official investigation by Captain C, the testimony of Captain C as to what Private B told him is hearsay and inadmissible.

        A soldier is being tried for selling clothing. Policeman A is able to testify that, while on duty as policeman, he saw the accused with a bundle under his arm go into a shop, that he (the policeman)

entered the shop and the accused ran away and the policeman was unable to catch him, and that he (the policeman) the next day asked the proprietor of the shop what the accused was doing there, and the proprietor replied that the accused sold him some clothes issued by the Government, and that he paid the accused $2.50 for them. The testimony of the policeman as to the reply of the proprietor would be hearsay and would be inadmissible. The fact that the policeman was acting in the line of his duty at the time the proprietor made the statement would not render the evidence admissible.

A soldier is being tried for disobedience of a certain order given him orally by Captain C. A person is able to testify that he heard Captain C give the order to the accused. Such testimony, including the terms of the order, is not hearsay and is not subject to exclusion for that reason.

Unless covered by one of the exceptions noted below,, official statements made by an officer--as, for instance, by a company, regimental, or department commander, or by a staff officer, in an indorsement or other communication--are not excepted from the general rule by reason of the official character of the communication or the rank or position of the officer making it. Nor is such a statement so excepted because it is among papers referred to the trial judge advocate with the charges.

3. Exceptions.--Some of the exceptions to the hearsay rule which are usually presented for application in court-martial trials are stated or referred to in 114-119.
114. COURTS-MARTIAL--RULES OF EVIDENCE--Confessions; Accused's Admissions; Acts and Statements of Conspirators and Accomplices.

     1. Confessions.--General Observations.--A confession is an acknowledgment of guilt. In view of the peculiar conditions in which accused persons are often placed when making confessions, evidence of confessions is in general to be received with caution. Where, however, a confession is explicit and deliberate as well as voluntary, and if oral, is proved by a witness or witnesses by whom it has not been misunderstood and is not misrepresented, it is indeed one of the strongest forms of proof known to the law.

        Courts should bear in mind that mere silence on the part of an accused when questioned as to his supposed offense is not to be treated as a confession.

        Although a confession may be inadmissible as a whole because it was not voluntarily made, nevertheless the fact that it furnished information which led to the discovery of other evidence of pertinent facts will not be a reason for excluding such other evidence; and when such pertinent facts have thus been proved, so much of the accused's statement as relates strictly to those facts becomes admissible. For example, where an accused held for larceny said "I stole

the articles and I tore up a board in the floor of my room and I hid them there," the fact that the confession was improperly induced by promises or threats would not exclude evidence that the articles were discovered in the place indicated by him, and after the introduction of such evidence, it would be proper to prove that the accused made the statement, "I tore up a board in the floor of my room, and hid them there." The fact that a confession, otherwise admissible, was made to an investigating officer during an investigation of a charge, does not make the confession inadmissible.

Rules.--The following rules limit the use of an accused's confessions, oral or written, made out of court.

Evidence of a confession or supposed confession can not be restricted to evidence of only a part thereof. Where a part only is shown, the defense by cross-examination or otherwise may show the remainder so that the full and actual meaning of the confession or supposed confession may appear. For example, if in a trial for the common-law larceny of a horse the prosecution proves that the accused admitted that he broke into the stable and "stole" the horse, the defense may show that the accused added the statement that the horse was taken solely for a temporary purpose with the intent to return it.

An accused can not be convicted legally upon his unsupported confession. A court may not consider the confession of an accused as evidence against him unless there be in the record other evidence, either direct or circumstantial, that the offense charged has probably been committed; in other words, there must be evidence of the corpus delicti other than the confession itself. Usually such evidence is introduced before evidence of the confession; but a court may, in its discretion, admit the confession in evidence upon condition that it will be stricken out and disregarded in the event that the above requirement as to evidence of the corpus delicti is not met later. This evidence of the corpus delicti need not be sufficient of itself to convince beyond reasonable doubt that the offense charged has been committed, or to cover every element of the charge, or to connect the accused with the offense. Examples: If unlawful homicide is charged, evidence of the death of the person alleged to have been killed coupled with evidence of circumstances indicating the probability that he was unlawfully killed, will satisfy the rule and authorize consideration of the confession if otherwise admissible. In a case of alleged larceny or in a case of alleged unlawful sale evidence that the property in question was missing under circumstances indicating in the first case that it was probably stolen, and in the second case that it was probably unlawfully sold, would be a compliance with the rule.

It must appear that the confession was voluntary on the part of the accused. In the discretion of the court a prima facie showing to this effect may be required before evidence of the confession itself is received. No hard and fast rules for determining whether or not a confession was voluntary are here prescribed. The matter depends largely on the special circumstances of each case. The following general principles are, however, applicable.

A confession not voluntarily made must be rejected; but where the evidence neither indicates the contrary nor suggests further inquiry as to the circumstances, a confession may be regarded as having been voluntarily made. Thus, where all the available evidence as to the circumstances merely shows that the accused, a private, confessed to a friend, another private, the confession may be regarded as voluntary.

The fact that the confession was made to a military superior or to the representative or agent of such superior will ordinarily be regarded as requiring further inquiry into the circumstances, particularly where the case is one of an enlisted man confessing to a military superior or to the representative or agent of a military superior.

Facts indicating that a confession was induced by hope of benefit or fear of punishment or injury inspired by a person competent (or believed by the party confessing to be competent) to effectuate the hope or fear is, subject to the following observations, evidence that the confession was involuntary. Much depends on the nature of the benefit or of the punishment or injury, on the words used, and on the personality of the accused, and on the relations of the parties involved. Thus, a benefit, punishment, or injury of trivial importance to the accused need not be accepted as having induced a confession, especially where the confession involves a serious offense; casual remarks or indefinite expressions need not be regarded as having inspired hope or fear; and an intelligent, experienced, strong-minded soldier might not be influenced by words and circumstances which might influence an ignorant, dull-minded recruit.

Evidence that the accused stated that he made the confession freely without hope of reward or fear of punishment, etc., or evidence that the accused was warned just before he made the confession that his confession might be used against him or that he need not answer any questions that might tend to incriminate him is evidence, but not conclusive evidence, that the confession was voluntary.

2. Accused's admissions.--In many instances an accused has made statements which fall short of being acknowledgments of guilt, but which, nevertheless, constitute important admissions as to his connection

or possible connection with the offense charged. Such statements are called "admissions against interest" and are admissible in evidence without any showing that they were voluntarily made. Should it, however, be shown that an admission against interest was procured by means which the court believes to have been of such character that they may have caused the accused to make a false statement, the court may either exclude or strike out and disregard all evidence of the statement.

The following are examples of admissions against interest: A statement made after arrest by an accused charged with homicide in a dance hall, that he was in the hall when the homicide occurred; a statement made to a sheriff by an accused charged with desertion that he was "tired of working for the Government and did not want to work for it any longer."

The mere fact that the admission was made during an investigation of the charge does not make it inadmissible.

3. Acts and statements of conspirators and accomplices.--In cases where several persons join with a common design in committing an offense, all acts and statements of each made in furtherance of the common design are admissible against all of them. It is immaterial whether such acts or statements were done or made in the presence or hearing of the other parties. The acts and statements of a conspirator, however, done or made after the common design is accomplished or abandoned, are not admissible against the others, except acts and statements in furtherance of an escape. Of course, this rule is not to be construed as affecting the competency of one accomplice to testify against the others. See 120 (Interest or bias).

   Foundation must first be laid by either direct or circumstantial evidence sufficient to establish prima facie the fact of conspiracy between the parties. But as it sometimes may interfere with the proper development of the case to require the trial to begin with proof of the conspiracy, in such case the prosecution may, at the trial, prove the declarations and acts of one made and done in the absence of the others, before proving the conspiracy between the defendants, though such proof will be treated as nugatory unless the conspiracy be afterwards independently established.

   The fact that a confession or admission of one conspirator is inadmissible against the others does not prevent the use of such confession or admission against the one who made it, but any such confession or admission can not be considered as evidence against the others. The effect of an unsworn statement made by one of several joint offenders at the trial is likewise to be confined to the one who made it.

115. COURTS-MARTIAL--RULES OF EVIDENCE--Dying Declarations; Res Gestae.

     1. Dying declarations.--See 148 (Murder) and 149 (Manslaughter).

     2. Res gestae.--Circumstances, including exclamations, declarations, and statements of participants and bystanders, substantially contemporaneous with the main fact under consideration and so closely connected with the main fact as to throw light upon its character, are termed res gestae. Evidence of anything constituting a part of the res gestae is always admissible.

        Thus, where an accused, A, is charged with the murder of B, evidence by any person who was present is admissible to show that immediately before the killing accused's wife exclaimed to him, "B has just assaulted me." This evidence is admissible because the making of the remark was substantially contemporaneous with the main fact under consideration--i.e., the alleged killing--and so closely connected therewith as to throw light upon its character in that the remark tends to indicate what motive was in the accused's mind, regardless of whether his wife had in fact been assaulted or not. In such a case, the evidence being introduced, not for the purpose of proving the truth of the remark, but merely to show that the remark was made, its admissibility does not constitute an exception to the hearsay rule.

        It sometimes happens, however, that an utterance constituting a part of the res gestae was made under such circumstances of shock or surprise as to show that it was not the result of reflection or design but made spontaneously. In such case evidence that the utterance was made may be introduced for the purpose of proving the truth of the utterance itself. This does constitute an exception to the hearsay rule. For example, an accused, A, is charged with having shot and killed B. A witness testifies that he, as well as A, B, and a fourth man, C, were present at the time of the shooting; that A and C had pistols; that he did not actually see the shot fired; that he was looking at B and not at A and C when he heard a shot, and saw B, who was looking toward A and C, fall; and that as B fell B exclaimed "A has shot me!" The testimony as to B's exclamation is admissible as part of the res gestae; but, because of the circumstances under which the exclamation was made, the evidence may also be considered as tending to prove that it was A who shot B.

116. COURTS-MARTIAL--RULES OF EVIDENCE--Documentary Evidence; Proving Contents of Writing; Authentication of Writings.

     1. Proving contents of writing.--General Rule.-A writing is the best evidence of its own contents, and must be introduced to prove its contents. Under this rule, if it is desired to prove the contents of a private letter or other unofficial paper, or of an official paper such as a pay voucher,

a written claim against the Government, a pay roll or muster roll, a company morning report, an enlistment paper, etc., the strict and formal method of doing so is to call a witness who can authenticate it, and then to introduce in evidence the original.

Exceptions.--If a writing has been lost or destroyed or if it is otherwise satisfactorily shown that the writing can not be produced, then the contents may be proved by a copy or by oral testimony of witnesses who have seen the writing.

When the original consists of numerous writings which can not conveniently be examined by the court, and the fact to be proved is the general result of the whole collection, and that result is capable of being ascertained by calculation, the calculation may be made by some competent person and the result of the calculation testified to by him, as, far instance, if the fact to be proved is the balance shown by account books. In such cases it must be shown to the court that the writings are so numerous or bulky that they can not conveniently be examined by the court; that the fact to be proved is the general result of the whole collection; that the result is capable of being ascertained by calculation; that the witness is a person skilled in such matters, and capable of making the calculation; that he has examined the whole collection and has made such a calculation; and that the opposite party has had access to the books and papers from which the calculation is made. Opportunity will be afforded the opposite party to cross-examine the witness upon the books and papers in question, and to have them, or such of them as the cross-examiner may desire and the court may permit on proper showing (or properly authenticated or proved copies), produced in court for the purposes of the cross-examination.

In the case of a public record required by law, regulation, or custom to be preserved on file in a public office, a duly authenticated copy is admissible to the extent that the original would be, without either first proving that the original has been lost or destroyed, or without otherwise accounting for the original.

Copies of any books, records, papers, and documents in any of the executive departments of the Government are duly authenticated by the seals of such departments.

A copy of any book, record, paper, or document in the War Department, including its bureaus and branches, or in any command or unit in the Army may be duly authenticated by the seal, inked stamp, or other identification mark of such department, bureau, branch, command, or unit, or by a signed certificate or statement indicating that the paper in question is a true copy of the original and that the signer is the custodian of the original. Thus "A true (extract) copy: (Sgd.) John Smith, Capt. 10th Inf. Comd'g., Co. A,

10th Inf.," would be sufficient, prima facie, to authenticate a paper as a copy of an original company record of Company A, Tenth Infantry.

An objection to proffered evidence of the contents of a document based on any of the following grounds may be regarded as waived if not asserted when the proffer is made: It does not appear that the original has been lost, destroyed, or is otherwise unavailable; it does not appear that the preliminary matters described in the second sub-paragraph under this heading (Exceptions) have been shown to the court; it does not appear that a purported copy of a public record is duly authenticated.

2. Authentication of writings.--In order to prove that a writing is what it purports to be, in case of a private letter, the person who received the letter should testify that he received it, and he should identify it. Then it should be proved that the signature is in the handwriting of the purported writer of the letter. But in proving the genuineness of letters the rule is that the arrival by mail of a reply purporting to be from the addressee of a prior letter duly addressed and mailed, is sufficient evidence of the genuineness of the reply to justify its introduction in evidence. A similar rule prevails as to telegrams purporting to be from the addressee of a prior telegram or telephone message.

   If the writing is an official document such as a pay voucher, or an admissible photostat copy, it should be produced in court. The signature to the voucher (or as shown by the photostat copy thereof) should be proved to be genuine if that is not admitted.

   Where the genuineness of the handwriting of any person may be involved, any admitted or proved handwriting of such person shall be competent evidence as a basis for comparison by witnesses or by the court to prove or disprove such genuineness; but before admitting such specimens of handwriting, satisfactory evidence should be offered as to the genuineness of the same.

   A failure to object to a proffered document on the ground that its genuineness has not been shown may be regarded as a waiver of that objection.

117. COURTS-MARTIAL--RULES OF EVIDENCE--Documentary Evidence; Official Writings; Former Testimony.

     1. Official writings.--General Rule.--It is to be borne in mind that the mere fact that a document is an official report does not in itself make it admissible in evidence for it is the hearsay assertion of a person not in court. Thus, neither the report of an investigating officer nor the accompanying summary of the testimony of a witness on a preliminary investigation of a charge is competent evidence of the facts therein stated. In this connection, however, see 114 (Confessions, admissions) and 124b (Impeachment).

Exceptions.--An official statement in writing (whether in a regular series of records, or a report, or a certificate) is admissible when the officer or other person making it had the duty to know the matter so stated and to record it; that is, where an official duty exists to know and to make one or more records of certain facts and events, each such record, including a permanent record compiled from mere notes or memoranda, is competent (i.e., prima facie) evidence of such facts and events, without calling to the stand the officer or other person who made it. For instance, the originals of an enlistment paper, physical examination paper, outline-figure and fingerprint card, guard report, individual equipment record, and morning report are competent evidence of the facts recited in them, except as to entries obviously not based on personal knowledge. As to copies, see 116 (Exceptions). A service record is not an original paper, so far as relates to facts compiled in it from other original sources, and therefore is not evidence of such facts. See, however, in this connection, 79c (Previous convictions) and 129 (Final indorsement on service record). A failure to object to a document on the ground that the information therein is compiled from other original sources may be regarded as a waiver of the objection.

A certificate by The Adjutant General, or one of his assistants, of any fact or event officially recorded in any book, record, paper, or document on file in the War Department or in any of its bureaus or branches, is prima facie evidence of such fact or event in any case in which The Adjutant General, or one of his assistants, shall certify that it is contrary to public policy to divulge the source of official knowledge of such fact or event or to divulge the text of the official record involved. See 125 (Judicial notice).

2. b. Former testimony.--As to use of the record of the proceedings of a court of inquiry, see A.W. 27.

   Where, at any trial by a court-martial, including a rehearing, it is made to appear to the satisfaction of the court that a witness who has testified in either a Federal or a State court or before a court- martial at a former trial of the same person where the issues were the same as in the case on trial and where the accused was confronted with the witness and afforded the right of cross-examination, is dead, insane, or too old or infirm to attend the trial, or is beyond the reach of process, or more than 100 miles from the place where the trial is had, or can not be found, his testimony at the former trial, if properly proved, may be received by the court if otherwise admissible, except that such testimony of an absent witness may not be introduced in evidence in a capital case without the consent of the accused unless the witness is dead or beyond the reach of process.

The testimony of a witness who has testified at a former trial by court-martial may be proved by the record of the former trial or by a duly certified copy of so much of such record as contains the desired testimony, and in any case the testimony may be proved by the stenographic report of such testimony verified by t he person by whom it was reported. If in any case other competent proof is not available, the former testimony of such a witness may be proved by any person who heard the same being given and who remembers all or substantially all of it.

If otherwise admissible, a deposition taken for use or used at a former trial by a court-martial is admissible in a subsequent trial of the same person on the same issues.

118. COURTS-MARTIAL--RULES OF EVIDENCE--Documentary Evidence; Books of Account; Maps, Photographs, etc.

     1. Books of account.--Entries in books of account, where such books are proven to have been kept in the regular course of business, and the entrant is dead, insane, out of the jurisdiction of the court, or otherwise unavailable to testify, are admissible as evidence. Also the lack of an entry in a series of written entries is admissible as an implied statement that no events occurred of the kind that would have been recorded.

        Where the entrant is available to testify in court, books of account will be used, just as memoranda are used, for the purpose of either refreshing or supplying the recollection of the witness.

        Where the entrant only records an oral report or written memorandum made in the regular course of business by another person or persons, such other person or persons, if available, must also be called to testify.

        The original document of entry must be produced or accounted for. Where a composite entry is used, the extent to which intermediate memoranda must be produced depends on the circumstances of each case. As between ledger and daybook or other kinds of books, the book required is that which contains the first regular and collected record of the transactions.

     2. Maps, photographs, etc.--Maps, photographs, sketches, etc., as to localities, wounds, etc., are admissible as evidence when properly verified by the party who made them, or by anyone personally acquainted with the locality, object, person, etc., thereby represented or pictured, and able to state their correctness, from his own personal knowledge or observation; or when coming from official sources that are authentic. This character of evidence is capable of gross misrepresentation of facts and should be carefully scrutinized. Fingerprints, upon proper verification, are admissible, but caution should be taken to use only witnesses skilled in interpreting fingerprints.

119. COURTS-MARTIAL--RULES OF EVIDENCE--Documentary Evidence; Depositions; Memoranda; Affidavits.

     1. Depositions.--General.--See A.W. 25 and 26, and 98 (Interrogatories and depositions). Any case referred to a special court-martial for trial under the second proviso of A.W. 12 is a case "not capital" within the meaning of A.W. 25. The case is "not capital" within the meaning of A.W. 25 if none of the crimes or offenses charged is legally punishable by death; and although a crime or offense charged in the case is punishable by death under the Article of War denouncing it, such crime or offense is not legally so punishable, if the applicable limit of punishment prescribed by the President under A.W. 45 is less than death.

        Deposition testimony may be introduced for the defense in capital cases if otherwise admissible. Where the defense calls for such testimony in capital cases, the witnesses may be cross-examined by interrogatories as fully as witnesses in a case not capital. Under express consent of the defense made or presented in court, but not otherwise, a court may admit deposition testimony not for the defense in a capital case. Except when express consent is required as just noted, failure to object to the introduction of a deposition on the ground that it was not authorized by A.W. 25 or was not taken before a proper officer or on reasonable notice may be regarded as a waiver of the objection.

        The same rules as to competency of witnesses and admissibility of evidence apply in the taking of evidence by deposition that apply in the examination of a witness before the court, except that a wider latitude than usual should be allowed as to leading questions.

        If the interrogatories and cross-interrogatories for depositions are submitted for acceptance by the court in open session, objection to the competency of the deponent, if grounds of objection are known at the time, as well as objections to questions, should be raised at such session and ordinarily be passed upon by the court at that time. The court should, however, in the interests of justice, entertain such objections when the depositions are offered in evidence.

        If the interrogatories and cross-interrogatories were not so submitted, objections to the deposition as a whole or to a part thereof may be made when it is offered in evidence.

        Offering Deposition.--The party at whose instance a deposition has been taken should not be permitted to offer only such parts of the deposition as are favorable to him or as he may elect to use; he must offer the deposition in evidence as a whole or not offer it at all. If the party at whose instance a deposition has been taken decides not to offer it, it may be offered by the other party.

        Reading, etc., of Depositions.--Ordinarily a deposition will be read to the court by the side on whose behalf it was taken, but if the

accused is not represented by counsel, the trial judge advocate will read to the court the deposition taken on his behalf, unless the accused requests to read it or does not desire to offer it. After being read to the court a deposition will be properly marked as an exhibit with a view to incorporation in the record.
2. Memoranda.--Memoranda may be used to supply facts once known but now forgotten or to refresh the memory. Memoranda are therefore of two sorts: First, if the witness does not actually remember the facts but relies on the memorandum exclusively (as in the case of a bookkeeper using an old account book), then the witness must be able to state that the record accurately represented his knowledge at the time of its making. But it is not necessary that he should himself have made the record if he can state from his present recollection that it was correct when made, and the entries must have been made at or near the time, and the recollection at such time must have been fresh as to the facts recorded. Where the witness's certainty rests on his usual habit or course of business in making memoranda or records, it is sufficient. Second, if the witness can actually remember the facts and merely needs the memorandum to refresh his memory, or a part of it, then the above limitations do not apply. But the court should see to it that no attempt is made to use such a paper to impose a false memory on the court under guise of refreshing it.

   A memorandum of the first sort is admissible. Where the memorandum is of the second sort, the witness will testify without the memorandum itself being admitted in evidence.

   The memorandum to be used must always, on demand, be shown to the opponent for purposes of inspection and cross-examination.

3. Affidavits.--The general rule is that affidavits are not admissible; but there may be exceptions. See for examples of such exceptions the second subparagraph of 111 (Interlocutory questions), and 126c (Waiver of objection).
120. COURTS-MARTIAL--RULES OF EVIDENCE-Competency of Witnesses.

     1. General.--The general capacity, mental and moral, of an adult witness is always presumed. The party alleging the contrary must always prove to the court the specific ground of incapacity or else the witness should be allowed to testify; that is, the burden of proof rests upon the party who alleges incompetency.

        Any known objection to the witness's competency should be made before he is sworn. If his incompetency should later appear, however, a valid objection should be sustained, or the court, of its own motion, should refuse to hear him further, and order that any testimony he may have already given be disregarded.

     2. Children.--The competency of children as witnesses is not dependent upon their age, but upon their apparent sense and their understanding

of the moral importance of telling the truth. Such sense and understanding may appear upon such preliminary questioning of the child as the court deems necessary or from the child's appearance and testimony in the case.
3. Conviction of crime.--Conviction of an offense does not disqualify a witness, but may be shown to diminish his credibility. See 124b (Impeachment).

4. Interest or bias.--Interest or bias does not disqualify. For instance, the fact that a person owes a party money or has a property interest with or against a party does not disqualify him from testifying for or against that party; and a person who is an avowed friend or enemy of the accused is not thereby disqualified from testifying for or against the accused.

   Wife and husband may testify in favor of each other without limitation; but unless both consent, neither wife nor husband is a competent witness against the other, except as follows: A wife may testify against her husband without his consent whenever she is the individual or one of the individuals injured by an offense charged against her husband. Thus in such cases as bodily injuries inflicted by him upon her, bigamy, polygamy, or unlawful cohabitation, abandonment of wife and children, or failure to support them, or using or transporting her for "white slave" or immoral purposes, the wife may testify against her husband; but she can not be compelled to do so. See in this connection 123b (Privileged communications).

   The accused is at his own request, but not otherwise, a competent witness. His failure to make such request shall not create any presumption against him. Upon taking the stand as a witness he occupies no exceptional status. The same rules as to the admissibility of evidence, privilege of the witness, impeaching of his credit, etc., will apply to him as to any other witness. As to cross-examination of accused, see 121b.

   One of two or more persons concerned in an offense is always competent to testify, whether he be charged jointly or separately and whether he be tried jointly or separately, and whether he be called for the prosecution or for the defense; except that he can not, if on trial himself, be called except upon his own request, and if not on trial himself he may assert his privilege not to incriminate himself. See in this connection 114c (Acts, etc., of conspirators, etc.) and 122b (Compulsory self-incrimination).

   The fact that an accomplice testifies for the prosecution does not make him afterwards immune from trial except to the extent that immunity may have been promised him by an authority competent to order his trial by general court-martial.

121. COURTS-MARTIAL--RULES OF EVIDENCE--Examination of Witnesses.

     1. General.--As to oaths of witnesses, see 95. Where a witness is recalled to the witness stand, he will not bs sworn again, but should be reminded that he has been sworn in the case and is still under oath. A failure so to remind him, however, does not affect the validity of the trial and will not be ground for rejecting the testimony.

        Subject to the discretion of the court, a witness before completing his testimony is not ordinarily permitted to be present in court during the introduction of other evidence or during the opening statements. The fact that a witness was so present may be commented upon in argument by either party, in relation to the weight to be given the evidence of the witness.

        Witnesses are usually examined in the following order: Witnesses for the prosecution, witnesses for the defense, witnesses for the prosecution in rebuttal, witnesses for the defense in rebuttal, witnesses for the court. The order of examining each witness is usually direct examination, cross-examination, redirect examination, recross examination and examination by the court. However, the court may permit the recall of witnesses, including an accused, at any stage of the proceedings; it may permit material testimony to be introduced by either party quite out of its regular order and place, and may permit a case once closed by either or both sides to be reopened for the introduction of testimony previously omitted.

        The court should not excuse a witness until satisfied that neither party has any further questions to ask him.

        Refusal by a witness to answer a proper question is a military offense or an offense under A.W. 23 according to whether the witness is subject to military law or not.

        It is never necessary for a party to ask questions through the court or ask that the court adopt a question. A witness should be required to limit his answer to the question asked. He can not, however, be required to answer categorically (e.g., by a simple "yes" or "no") unless it is clear that such an answer will be a complete response to the question. A witness may always be permitted at some time before completing his testimony to explain any of his testimony.

        The reason for any objection will ordinarily be stated.

        With reference to questioning witnesses through an interpreter, see 47 (Duties of interpreter).

     2. Cross; redirect and recross examination; examination by the court or a member.--Cross-examination.--Cross-examination should be limited to matters having a bearing upon the testimony of the witness on direct examination. As one purpose of cross-examination is to test the credibility of the witness, he may always be cross-examined as to

matters bearing upon his credibility, for instance, he may be interrogated as to his relationship to the parties and to the subject matter of the case, his interest, his motives, inclinations, and prejudices, his means of obtaining a correct and certain knowledge of the facts about which he testifies, the manner in which he has used those means, his powers of discernment, memory, and description. Leading questions may be freely used on cross-examination.

A witness, whatever be his rank or office, may be cross-examined. For instance, he may be asked in a proper case whether he has not expressed animosity toward the accused, or whether on a previous occasion he made a statement materially different from that embraced in his testimony. Such questions imply no disrespect to the witness, and he can not properly decline to answer them on that ground.

An accused person taking the stand as a witness becomes subject to cross-examination like any other witness. So far as the latitude of the cross-examination is discretionary with the court, a greater latitude may properly be allowed in his cross-examination than in that of other witnesses. When the accused testifies in denial or explanation of any offense, the cross-examination may cover the whole subject of his guilt or innocence of that offense. Any fact relevant to the issue of his guilt of such offense or relevant to his credibility as a witness is properly the subject of cross-examination. The accused can not avail himself of his privilege against self-incrimination to escape proper cross-examination. Where an accused is on trial for a number of offenses and on direct examination has testified about only a part of them, his cross-examination must be confined to questions of credibility and matters having a bearing upon the offense about which he has testified.

Redirect and Recross Examination.--Ordinarily the redirect examination will be confined to matters brought out on the cross-examination, and the recross-examination will be confined to matters brought out on the redirect examination. But in these matters the court, in the interest of truth and justice, should be liberal in relaxing the rule.

Examination by the Court or a Member.--The court and its members may ask a witness other than the accused any questions that either side might properly ask such witness. If new matter, not properly the subject of cross-examination of such witness on his previous testimony, be elicited by questions of the court or its members, both parties will be permitted to cross-examine the witness upon such new matter.

In questioning an accused the court and its members must confine themselves to questions which would have been admissible on cross-examination of the accused by the prosecution.

Questions by the court or its members and evidence elicited thereby are subject to objection on proper grounds by either side and by members of the court.
3. Leading questions; ambiguous and misleading questions; other objectionable questions.--Leading Questions--General Rule.--Leading questions are questions which either suggest the answer it is desired the witness shall make, or which, embodying a material fact, are susceptible of being answered by a simple yes or no. A leading question except on cross-examination should be excluded upon proper objection. For example, where a knife is introduced in evidence a witness should not be asked on direct examination whether it is the knife with which he saw the accused stab Private A. He should be asked first whether he recognizes the knife, and if he answers that he does, then he may be asked where he saw it, and what was done with it, etc. A question may be none the less leading, although it includes the prefatory phrase "Did you or did you not."

   Exceptions.--To abridge the proceedings, the witness may be led at once to points on which he is to testify. The rule is therefore not applicable to that part of the examination of a witness which is purely introductory. For example, in a desertion case, the policeman who supposedly apprehended the accused may be asked whether at a certain time and place he saw the accused.

   When the witness appears to be hostile to the party calling him or is manifestly unwilling to give evidence, the court may, in its discretion, permit the party calling him to put leading questions. In this connection, see 124b (Impeachment).

   When it appears that the witness had made an erroneous statement through a mere slip of the tongue, his attention may be directed to the matter by a leading question in order to afford him an opportunity to correct the statement if he so desires.

   Where, from the nature of the case, the mind of the witness can not be directed to the subject of the inquiry without a particular specification of it, a leading question may be asked for that purpose. Thus, where a witness testified that he heard the accused make a certain statement on a certain occasion in the hearing of certain other persons, and such persons are called to contradict the witness, each of them may be asked whether he heard the accused make the statement.

   In other cases the court, in its discretion, may allow liberal departures from the rule but must always be careful in so doing not to allow an untruthful witness an opportunity to shape his testimony as he thinks the questioner desires, or the reverse, or to try to match it up with the testimony of other witnesses, from suggestions he may gather during his examination, and not to allow either the trial

judge advocate or counsel for the accused, on direct examination, to intimate to a witness that his testimony on a material point is wrong, or ought to be changed except within the limits indicated above.

Ambiguous and misleading questions.--A question which is ambiguous or misleading should never be permitted either on direct or cross examination. Such a question is unfair to a witness, who may thereby be led into making an unintentional misstatement. Moreover his answer may give a wrong impression to the court. Included in ambiguous or misleading questions are those embodying two or more separate elements or questions. Thus the question "Did you see the accused leave the quarters with a bundle under his arm?" really contains four questions. Under certain circumstances the witness's affirmative or negative answer might be intended to apply only to one of the four questions involved and might be understood by the court to apply to all of them. Also included are questions which assume a fact not previously testified to by the witness. Thus the question "When you saw the accused was anyone with him?" would be improper unless the witness had previously testified that he had seen the accused.

Other Objectionable Questions.--Questions should not be asked for the purpose of suggesting matters known not to exist or that the rules of evidence clearly make inadmissible. See also 75a (Duties of court) and 122 (Degrading and incriminating questions).

122. COURTS-MARTIAL--RULES OF EVIDENCE--Degrading and Incriminating Questions.

     1. Compulsory self-degradation.--Under A.W. 24 no witness or deponent need answer any question not material to the issue when such answer might tend to degrade him. This privilege applies only to matters not material--i.e., relevant to the issue--whereas the privilege against self-incrimination covers all matters whatsoever.

     2. Compulsory self-incrimination.--The fifth amendment to the Constitution of the United States provides that in a criminal case no person shall be compelled "to be a witness against himself." The principle embodied in this provision applies to trials by courts-martial and is not limited to the person on trial, but extends to any person who may be called as a witness. See A.W. 24 as to prohibition against compelling a witness to incriminate himself or to answer any question the answer to which may tend to incriminate him.

        If a witness states that the answer to a question might tend to incriminate him, he will not be required to answer the question unless it clearly appears to the court that no answer to the question could have that effect.

        Although an answer to a question apparently would incriminate or tend to incriminate a witness, he can not refuse to answer where,

for instance, with respect to the offense as to which the privilege is asserted, he might successfully plead the statute of limitations, former trial, etc. See 67, 68, and 69. As to waiver of privilege by accused testifying in his own behalf, see 121b (Cross-examination).

The privilege of a witness to refuse to respond to a question the answer to which may incriminate him is a personal one, which the witness may exercise or waive as he may see fit. It is not for the trial judge advocate or accused to object to the question or to check the witness, or for the court to exclude the question or direct the witness not to answer, although the court should advise an apparently uninformed witness of his right to decline to make any answer which might tend to incriminate him.

The prohibition against compelling one to give evidence against himself is a prohibition of the use of physical or moral compulsion to extort communications from him and not an exclusion of his body as evidence when it is material.

It follows that it would be appropriate for the court to order the accused to expose his body for the examination by the court or by a surgeon who would later testify as to the results of his examination. Upon refusal to obey the order, the accused's clothing might be removed by force. The accused might likewise be compelled to try on clothing or shoes, or to place his bare foot in tracks, or to submit to having his fingerprints made.

123. COURTS-MARTIAL--RULES OF EVIDENCE--Privileged and Non- privileged Communications.

     1. General.-A privileged communication is one that relates to matters occurring during a confidential relation which it is the public policy to protect. A witness can decline to answer a question touching such a communication, and where the privilege is that of the accused, or of the Government, or of any person other than the witness, the court will not permit the witness to answer such question, except with the consent of the person entitled to the benefit of the privilege or of the proper governmental authorities, as the case may be.

     2. Certain privileged communications.--State Secrets and Police Secrets.--Communications made by informants to public officers engaged in the discovery of crime are privileged. The deliberations of courts and of grand and petit juries are privileged, but the results of their deliberations are not privileged. Diplomatic correspondence, and, in general, all oral or written official communications, the disclosure of which would, in the opinion of the head of the executive department or independent bureau concerned, be detrimental to the public interest, are privileged.

        The privilege that extends to communications made by informants to public officers engaged in the discovery of crime should be given a

common-sense interpretation, keeping in mind both the public interests and the interest of the accused.

Communications Between Husband and Wife and Between Attorney and Client.--Communications between husband and wife are privileged; therefore neither may testify to confidential communications of the other unless the other consent. See in this connection 120d (Interest or bias).

The testimony of the attorney or his interpreter, clerk, stenographer, etc., as to communications between the client and the attorney, made while the relation of attorney and client existed and in connection with the matter for which the attorney was engaged, will not be received by a court, unless such communications clearly contemplate the commission of a crime; i.e., perjury, subornation of perjury, etc. Qf course, communications prior to or subsequent to the relation are not privileged. The client, but not the attorney, may waive this privilege.

The purpose of the privilege, extended to communications between husband and wife and attorney and client, which grows out of a recognition of the public advantage that accrues from encouraging free communication in such circumstances, is not disregarded by allowing outside parties who overhear such privileged communications to testify to what they have overheard. It would not be permitted, however, for one of the minor children of the parents, who might reasonably be presumed by the parents not to understand what they were talking about, to testify to communications overheard by such child.

Confidential Papers.--The reports of special inspections by the Inspector General's Department are confidential documents and the testimony taken is considered a part and parcel of such reports. There is no law or regulation which requires copies of the evidence contained in these confidential reports to be furnished to officers whose conduct has been under investigation. So also the reports of The Judge Advocate General to the Secretary of War have always been regarded as confidential communications, and it has not been the practice to furnish copies of them to parties outside the department in the absence of special authority from the Secretary of War.

3. Certain nonprivileged communications.--Telegrams.--Neither private telegrams nor the information regarding them that comes to the knowledge of telegraph operators, either military or civil, are privileged. Telegraph operators, both military and civil, may be ordered or subpoenaed to testify before a court-martial as to private telegrams, and private telegrams may be brought before a court-martial by the usual process.

   Communications to Medical Officers and Civilian Physicians.--It is the duty of medical officers of the Army to attend officers and

soldiers when sick, to make the annual physical examination of officers, and examine recruits for enlistment, and they may be specially directed to observe an officer or soldier or specially to examine or attend them. Such observations, examination, or attendance would be official and the information acquired would be official. While the ethics of the medical profession forbid them to divulge to unauthorized persons the information thus obtained and the statements thus made to them, such information and statements do not possess the character of privileged communications.

The communications between civilian physician and patient are not privileged.

124. COURTS-MARTIAL--RULES OF EVIDENCE--Credibility of Witnesses; Impeachment of Witnesses.

     1. Credibility of witnesses.--The credibility of a witness is his worthiness of belief, and is determined by his character, by the acuteness of his powers of observation, the accuracy and retentiveness of his memory, by his general manner in giving evidence, his relation to the matter in issue, his appearance and deportment, by his friendships and prejudices, by his general reputation for truth and veracity in the community where he lives, by comparison of his testimony with other statements made by him out of court, by comparison of his testimony with that of others, etc. See in this connection 121b (Cross-examination). The court will draw its own conclusions as to the credibility of the witness and attach such weight to his evidence as his credibility may warrant. There may be cases in which the court would be justified in attaching no weight at all to the testimony of a witness. In general, a witness gains no corroboration merely by repeating his statements a number of times to the same effect. Hence, similar statements made by a witness prior to the trial consistent with his present testimony are in general not admissible to corroborate him. But this is only a general rule, and there are some situations in which such statements, having a real evidential value, are admissible. For example, if a witness is impeached on the ground of bias due to a quarrel with the accused, the fact that before the date of the quarrel he made an assertion similar to his present testimony tends to show that his present testimony is not due to bias. So, also, where he is sought to be impeached on the ground of collusion or corruption the circumstances of the case may show that such prior statements have such evidential value as to make them admissible.

        A conviction may be based on the uncorroborated testimony of an accomplice, but such testimony is of doubtful integrity and is to be considered with great caution.

     2. Impeachment of witnesses.--General.--Impeachment signifies the process of attempting to diminish credibility. The credibility of any witness, including an accused, may be attacked.

The general rule is that a party is not permitted to impeach his own witness; that is, to attempt deliberately to discredit him. Such inconsistencies, however, as incidentally develop between witnesses for the same side are not impeachments. The general rule is subject to a few exceptions. Thus, where a party is compelled to call a witness whom the law, or circumstances of the case, make indispensable, or where a witness proves unexpectedly hostile to the party calling him, such party is permitted to impeach the witness. In the latter case it must first appear that the witness is hostile and that the party calling him has been surprised by the evidence given by the witness. The witness may then be asked if he has made inconsistent statements out of court, the time, place, and circumstances of the statement being described to him in detail, and upon his denial witnesses may be called in proof that he did make them. While a party surprised by the hostile evidence of his own witness may impeach such witness as indicated above, the party is not permitted to attack the reputation of such witness by showing that his general character is bad.

Various Grounds--General lack of veracity.--Where impeachment of a witness on this ground is undertaken, the impeaching evidence must be limited to evidence of his general reputation for truth and veracity in the community in which he lives or pursues his ordinary profession or business. In the military service "community" may include the witness's organization, post, or station. Personal opinion as to character is not admissible, except that a witness may, after testifying that he knows the reputation of the person in question as to truth and veracity in the community in which he resides or pursues his ordinary profession or business, and that such reputation is bad, be further asked whether or not from his knowledge of such reputation he would believe the person in question on oath. After such impeaching evidence, evidence that the witness's general reputation for truth and veracity in such community is good may be used in rebuttal.

Conviction of crime.--Evidence of conviction of any crime is admissible for the purpose of impeachment where such crime either involves moral turpitude or is such as to affect the credibility of the witness. Proof of such conviction may be made by the original or admissible copy of the record thereof or by an admissible copy of the order promulgating the sentence. Before introducing such proof, the witness must first be questioned with reference to the conviction sought to be shown, in order that he may have an opportunity of denying or of admitting and explaining it. If the witness admits the conviction, other proof is unnecessary. Evidence relating to an offense not involving moral turpitude or affecting the credibility of the witness should be excluded.

Inconsistent statements.--A witness may be impeached by showing by any competent evidence that he has previously made a statement inconsistent with his testimony on the stand. The foundation for the introduction of evidence of the making of an inconsistent oral statement must first be laid by asking the witness on cross-examination if he did not make the inconsistent statement, at the same time directing his attention to the time and place of such statement and the person to whom it was made. If the witness admits making the statement, no other proof that he made it is admissible. If he denies making the statement or testifies that he does not remember whether he made it or not, evidence that he made it may be introduced.

If the inconsistent statement is contained in a writing signed by the witness, the writing should be shown to the witness, and he should be asked to identify his signature thereon. If he admits his signature, the writing then becomes admissible in evidence. If he does not admit his signature, it may be otherwise proved, and the writing will then become admissible in evidence.

The fact that the inconsistent statement was made in the course of an investigation or at another trial does not make proof of the making of such statement inadmissible for purposes of impeachment.

Proof of the making of an inconsistent statement relating only to a collateral fact and not to any issue in the case is not admissible.

A witness has a right to explain any apparently inconsistent statement previously made by him and may, if excused from the stand, be recalled for that purpose.

Prejudice, bias, etc.--Prejudice, bias, friendship, former quarrels, relationship, etc., may be shown to diminish the credibility of the witness, either by the testimony of other witnesses or by cross-examination of the witness himself. Such matters are never regarded as collateral.

125. COURTS-MARTIAL--RULES OF EVIDENCE--Judicial Notice.--Certain kinds of facts need not be proved because the court is authorized to recognize their existence without proof. Such recognition is termed "Judicial notice."

     The principal matters of which a court-martial may take judicial notice are as follows:

     The Constitution, treaties, and other general laws of the United States; the law of nations; the common law; the laws of the State, Territory, or possession of the United States (including the District of Columbia) in which the court is sitting;

     The great seal of the United States and those of its possessions and of the several States and Territories; the seals of all courts of record of the United States and its Territories and possessions and of the several States; the seal of a notary public; the seal of The Adjutant General's Office;

The ordinary divisions of time, as to years, months, weeks, etc.; general facts and laws of nature, including their ordinary operations and effects; and general facts of history;

The political organization of the Government of the United States and its Territories and possessions and of the several States and their chief officials; and current political conditions of war and peace;

The organization of the Army, including the regulations relating thereto, the Army Regulations, the Official Army Register, the Army List and Directory, the provisions of this and other official Army manuals, the existence and location of military departments, corps areas (service commands), reservations, posts, and stations of troops, as published to the Army; the fact that an officer belongs to a certain organization, branch, etc.;

General orders, bulletins, circulars, and general court-martial orders of the War Department; general orders, bulletins, circulars, and general court-martial orders of the authority appointing the court and of all higher authority; and

Price of articles issued or used in the Military Establishment when published to the Army in orders, bulletins, or price lists.

The seal of The Adjutant General's Office on a certificate is facie evidence that the signature thereon is that of The Adjutant General or one of his assistants.

The principle of judicial notice does not prohibit the court from receiving evidence of a fact of which it is authorized to take judicial notice, and, if not satisfied of the fact of which it is asked to take judicial notice, it may resort to any authentic source of information. For example, where the terms of a general order of the War Department are material, the court may send for a copy of the order.

It is customary for the side desiring the court to take judicial notice of a given fact to ask the court tu do so, at the same time presenting any available authentic source of information on the subject.

126. COURTS-MARTIAL--RULES OF EVIDENCE--Miscellaneous Matters: Intent; Stipulations; Waiver of Objections.

     1. Intent.--General.--In certain offenses, as murder, larceny, burglary, and desertion, a specific intent is a necessary element. In such a case the specific intent must be established either by independent evidence, as, for example, words proved to have been used by the offender, or by inference from the act itself.

        In other offenses, as sleeping on post, drunkenness on duty, neglect of duty, and absence without leave, specific intent is not an element, and proof of the act alone is sufficient to establish guilt. Other illustrations and details as to evidence of intent in the more usual cases are included in Chapter XXVI (Punitive articles).

Drunkenness.--It is a general rule of law that voluntary drunkenness, whether caused by liquors or drugs, is not an excuse for crime committed while in that condition; but it may be considered as affecting mental capacity to entertain a specific intent, where such intent is a necessary element of the offense.

Such evidence should be carefully scrutinized, as drunkenness is easily simulated or may have been resorted to for the purpose of stimulating the nerves to the point of committing the act.

In courts-martial, however, evidence of drunkenness of the accused, as indicating his state of mind at the time of the alleged offense, whether it may be considered as properly affecting the issue to be tried, or only the measure of punishment to be awarded in the event of conviction, is generally admitted in evidence.

As to proof of drunkenness, see 145 (Drunkenness on duty).

Ignorance of fact.--Ignorance or mistake of fact will exempt a person from criminal responsibility, provided always it is an honest ignorance or mistake and not the result of carelessness or fault on his part. Examples appear in Chapter XXVI (Punitive articles), e.g., 134.

Ignorance of Law.--Ignorance of the law is not an excuse for a criminal act. This rule may be partially relaxed by courts-martial in the trial for purely military offenses of soldiers recently enlisted.

For example, a recruit might be permitted to show that the Articles of War had never been read to him as required by A.W. 110. While such evidence mould not amount to a defense, it could be regarded by the court as an extenuating circumstance.

2. Stipulations.--As to facts.--The parties may make a written or oral stipulation of the existence or nonexistence of any fact. A stipulation need not be accepted by the court, and should not be accepted where any doubt exists as to the accused's understanding of what is involved. A stipulation which practically amounts to a confession where the accused has pleaded not guilty and such plea still stands; and a stipulation of a fact which if true would operate as a complete defense to an offense charged should not ordinarily be accepted by the court. In a capital case and in other important cases a stipulation should be closely scrutinized before acceptance. The court is not bound by a stipulation even if received. For instance, its own inquiry may convince the court that the stipulated fact was not true. The court may permit a stipulation to be withdraws. If so withdrawn, it is not effective for any purpose.

   As to testimony and documentary evidence.--The parties may stipulate that if a certain person were present in court as a witness, he would give certain testimony under oath. See 62c in this connection (stipulation which warrants denial of continuance). Such a stipulation

does not admit the truth of such testimony, nor does it add anything to the weight of the testimony. Such stipulated testimony may be attacked or contradicted or explained in the same way as though the witness had actually so testified in person. The principles as to acceptance and withdrawal of stipulations as to facts apply here; but the court may be more liberal in accepting stipulations as to testimony.

Subject to the same observations as to stipulations as to testimony, stipulations may be made as to the contents of a document.

3. Waiver of Objections.--The prosecution or the defense may in open court either orally or in writing waive an objection to the admissibility of offered evidence. Such a waiver adds nothing to the weight of the evidence nor to the credibility of its source. The court in its discretion may refuse to accept, and may permit the withdrawal of, any such waiver. There is no prescribed form for making a waiver. Thus, if it clearly appears that the defense or prosecution understood its right to object, any clear indication on its part that it did not desire to assert that right may be regarded as a waiver of such objection. However, a waiver of an objection does not operate as a consent where consent is required, and a mere failure to object does not amount to a waiver except as otherwise stated or indicated in this manual.

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