Chapter 10.
Trial Judge Advocate

65. FUNCTIONS AND DUTIES IN GENERAL.

    1. A trial judge advocate must be appointed for every general and special court martial (AW 11). He is the prosecuting attorney who represents the United States in the trial of cases and, under the direction of the court, prepares the record of trial. It is his duty to bring charges to trial promptly, to make a full, systematic, and fair presentation of the case, to execute all orders of the court, to advise the court in matters of procedure and to see that the record of its proceedings is accurate and in proper form. Upon him rests a distinct responsibility for a fair and complete trial, free from prejudicial error, ending in a just result. Unless he is capable, familiar with all his duties, and thoroughly prepared, the proper trial of any case is jeopardized. Although his primary duty is to prosecute, proper prosecution does not mean just obtaining convictions. It means presenting the facts to the court fully so that the truth may be ascertained. Any act inconsistent with a genuine desire to have the whole truth revealed is prohibited (41d, MCM). The trial judge advocate must at all times be fair and free from bias, prejudice, or hostility (41a, MCM). He must conduct himself as the representative of the United States, not simply as an attorney determined to win a case. If, for any reason, he cannot properly perform his duties in this manner, he should promptly report that fact to the appointing authority.

    2. In addition to a trial judge advocate, one or more assistant trial judge advocates may be appointed for every general court-martial when necessary (AW 11). The appointment of an assistant trial judge advocate for a special court-martial is neither required nor customary. An assistant trial judge advocate performs such duties as the trial judge advocate may designate. Appropriate duties include taking care of details in arranging for trial and in securing the attendance of witnesses, assisting in the preparation of cases, and conducting the trial of particular phases of a case (app. 5, MCM). He is, however, competent to perform any of the duties of the trial judge advocate and may conduct the entire trial of a case if the trial judge advocate so directs. Ultimate responsibility, however, always rests upon the trial judge advocate.

    3. A trial judge advocate's first task is to know what his duties are. They are described in detail in the Manual for Courts-Martial, particularly

in paragraphs 41, 42, and appendix 5. He should fully acquaint himself with those provisions and with other passages in the Manual for Courts-Martial referred to in those paragraphs. The discussion in this chapter, and i9n later chapters n this manual dealing with trial procedure and evidence, furnishes explanatory and supplementary material as to some of the principal functions of the trial judge advocate. There is, however, no adequate substitute for a study of the Manual for Courts-Martial. If he has any doubt or difficulty as to his duties in general, or as to a problem in a particular case, he should never hesitate to ask the staff judge advocate or the command for advice. It is far easier to avoid errors by obtaining instructions before trial than to try to correct them after the proceedings are completed.
66. PRELIMINARY DUTIES BEFORE TRIAL.

    1. Examination and checking of charges and accompanying papers. Suggestions as to the steps a trial judge advocate should take prior to the assembling of the court for trial are set out in appendix 5, MCM. When a case is referred for trial, there will be forwarded to the trial judge advocate the charges and accompanying papers. These papers should include the investigating officer's report (if any), with its summary of the expected testimony of witnesses, the record of previous convictions of the accused, in some cases documentary report, and, in general court-martial cases, the staff judge advocate's recommendation for trial by general court-martial. These papers should be in duplicate. The trial judge advocate should examine all papers received to see that none appear to be missing. He should then check the order appointing the court and the 1st indorsement on the charge sheet to determine that the charges were referred to him for trial. Next he should examine the charges and specifications to see if they are in proper form, comparing them with the appropriate form or forms in appendix 4, MCM. If he finds any obvious error in form or slight mistake in names, dates, amounts, or spelling, for example, he should correct and initial such defect. He cannot, however, make any substantial change in the charges or specifications. If he discovers any serious irregularity in the order appointing the court or in the charges themselves, he should promptly report that fact to the appointing authority. After determining that the charges and allied papers are complete and in correct form, he should separate the duplicate copy of the charge sheet and of each of the allied papers to make up a set for service on the accused. He should not include in the papers to be served any memorandum or letter containing instructions for the trial of the case which may have been sent to him by the staff judge advocate.

    2. Service on accused. Immediately after the papers have been received and checked, the trial judge advocate should serve the accused. This consists in delivering personally to the accused a copy of the charge

sheet. Copies of the allied papers may be either delivered to the accused himself with the charge sheet or to defense counsel. At the time of service, he may inquire of the accused whether the data appearing on the first page of the charge sheet are correct. If incorrect, he should check with the custodian of the service record of the accused and have the statement corrected. After delivering a copy of the charges to the accused he should complete and sign the certificate of service appearing on page 4 of the charge sheet, both on the original charge sheet and on the copy delivered to the accused. He should at once notify the defense counsel that the accused has been served. Service on the accused should not be delayed. In a general court-martial case, the accused should not ordinarily be brought to trial within 5 days after service of charges upon him without his express consent. Any delay in serving charges, therefore, delays the beginning of trial. Similarly in a special court-martial case, although there is no definite limit as to the time within which trial may be begun after service, the accused is entitled to a reasonable time after service within which to prepare his defense.
67. PREPARATION OF CASE.

    1. Analyzing case. After the foregoing preliminary matters have been taken care of, the trial judge advocate begins the preparation of the case for trial. Complete and painstaking preparation before trial is the surest method of success. The first step is to know what has to be proved to establish each of the specifications and charges. That requires a study of the paragraphs in the Manual for Courts-Martial (ch. XXVI) discussing the offenses in question. Take, for example, the case of Private Lennie O. Bark, the record of which case appears in appendix 2 infra. Three charges are involved: willful disobedience of a superior officer in violation of AW 64, escape from confinement in violation of AW 69, and desertion in violation of AW 58. The trial judge advocate would first read the paragraphs of the Manual for Court Martial dealing with those three offenses (pars. 134b, 139b, and 130a, respectively) and note, under the heading Proof in those paragraphs what he must prove to establish each offense. He might write down the following:

       Charge I. Willful disobedience(par. 134b, MCM).
       a. The accused received a command from Lieutenant Loganby.
       b. Lieutenant Loganby was the accused's superior officer.
       c. The accused willfully disobeyed the command.
       Charge II. Escape from confinement (par. 139b, MCM).
       a. The accused was duly placed in confinement.
       b. He freed himself from confinement before being released by proper authority.
       Charge III. Desertion (par. 130a, MCM).
       a. The accused absented himself without leave from his place of service.
       b. He intended at the time of absence to remain away permanently from such place.

c. He was absent from 4 October 1943 until he was apprehended at Charleston, S.C., on 26 November 1943.

2. Interviewing witnesses. With the case fully in mind, he should then interview personally every witness who is expected to testify to anything other than purely routine matters. Calling a witness to testify without first knowing what he is prepared to say is a dangerous procedure. From a personal interview before trial, the trial judge advocate is able to make a study of each witness, test the accuracy of his story, check inconsistencies, and observe his ability to express himself and to answer questions. He may also obtain new bits of information about the case or clues to other evidence not disclosed by the investigating officer's report. It is his duty to learn all that he can about the facts involved and he should never fail to investigate any evidence or to interview a witness imply because that evidence or witness is not listed on the charge sheet or referred to by the investigating officer.

3. Arrangement of evidence. His next task is to decide just how he is going to present his case through the testimony of these witnesses. The general method of presenting a case is to prove each offense in the order charged and to prove the events relating to each offense chronologically in the order in which they occurred. In other words, the case should be presented to the court in the manner in which a story would be told, beginning with the first event. In the Bark case, the chronological order of events was as follows: the accused disobeyed a command of Lieutenant Loganby, as a result of which he was placed in confinement, from which he escaped and deserted the service. The trial judge advocate would plan to present his evidence to establish the events in that order. Turning to the outline which he has made of the elements of the offenses (par. 67a, supra), he will observe that to prove the first charge he must establish that Bark received an order from Lieutenant Loganby, his superior officer, and willfully disobeyed this order. Obviously, Lieutenant Loganby will be the key witness on this charge. He will testify that he ordered the accused to go out on the drill field, the he is the company commander and the superior officer of the accused, and that the accused disobeyed his order. The willful nature of the accused's disobedience is shown by his flat refusal to obey and the character of his remarks at the time. Lieutenant Loganby's testimony is corroborated by Lieutenant Grant, Sergeant Pitch and Sergeant Kelley. It will be desirable to call at least one of these to testify, but in view of the complete unequivocal statements of Lieutenant Loganby it is hardly necessary to take up the time of the court having the same story told four times. Normally Lieutenant Grant would be the corroborating witness whom

the trial judge advocate would select, since he is an officer and was present throughout the entire occurrence. However, on interviewing him the trial judge advocate learned that he will probably not be present at the time of trial because he has been ordered to school. Since the two sergeants also can testify to the entire event, it will be sufficient to call one of them. Sergeant Pitch's story as to the remarks made by the accused is a little more complete than Sergeant Kelley's and after interviewing both, the trial judge advocate observed that Sergeant Pitch appeared to remember the events more clearly and could express himself better. He decides, therefore, to use Sergeant Pitch. As to the second charge, escape from confinement, he has learned from defense counsel that the accused intends to plead guilty. In the course of the preparation of his case, he properly inquired from defense counsel how the accused expected to plead so that he might know in advance, if possible, whether all the issues in the case were going to be contested. He did not, of course, ask the accused himself, nor did he attempt in any way to induce a plea of guilty (41e, MCM). Despite the expected plea of guilty, he prepares to offer some evidence on the issue of escape, since the accused may change his mind and since, in any event, at least a prima facie case should be proved in every case where there is a plea of guilty as a guide to the reviewing authority and for subsequent consideration of the case for clemency. The fact of confinement can be established by the entry of duty to confinement in the morning report of Company B, the organization to which the accused was assigned, and by an extract copy of the guard report of the 128th Infantry. The fact that the accused escaped is shown by the same evidence--i.e., the entry in the morning report of confinement to absence without leave, and the entry in the guard report of such escape. The third charge, desertion, requires establishing that the accused absented himself without leave on 4 October 1943, that he intended not to return to the service and that his absence continued until terminated by apprehension on 26 November 1943. The accused intends to plead guilty to absence without leave, although denying desertion, so that element is admitted. It will have been proved in any event by the entry on the morning report used to prove escape from confinement. The termination of that absence by apprehension will be proved by the testimony of Sergeant Sellins, the military policeman who arrested him in Charleston, S.C., on 26 November 1943. His intention not to return will be proved from various facts and circumstances. In most cases, direct evidence of an intention not to return is not available. The court must draw an inference as to intention from the accused's acts, the duration of his absence, the manner in which it was terminated and other circumstances. In this case, the court-martial would be justified in concluding that Bark did not intend to return to the service on the basis of his statements to Lieutenant Loganby that he did not like the Army and would not do any more work, his escape from confinement

while awaiting trial on a capital charge, his absence for 6 weeks and failure to surrender, although he was not far from his own station, and the termination of his absence by apprehension. In addition to this circumstantial evidence, however, there is in this case also direct evidence of the intention not to return, i.e., the statement made by the accused to Sergeant Sellins that he wasn't going back to the Army. The testimony of Sergeant Sellins on this point, if admitted in evidence, will leave no possible question as to desertion. The trial judge advocate recognizes that the defense counsel will probably object to this damaging evidence on the ground that such a statement made to a military policeman is an involuntary confession. He is prepared to meet that argument by bringing out the fact that the sergeant did not urge the accused to make the statement or threaten him or promise any reward or favor. However, he knows that there is some question whether this evidence will by admitted. In any event, there is enough circumstantial evidence of intention not to return so that the case will not fail even if the sergeant's testimony is excluded.
4. Preparation of questions and opening statement. Having thus outlined the method by which he will prove the case, and the order in which he will call his witnesses, he notes down the principal questions he will ask each witness. An inexperienced trial judge advocate will often find that unless he has clearly in mind just how each witness is to be questioned, he may either forget to bring out some important fact or be unable to phrase his questions properly to elicit the desired information. As he acquires more experience it may become unnecessary to make any notes in advance, but for his first cases it may be desirable to go to the extent writing out each question in full. It is also good practice to write out an opening statement, that is, a brief statement of the issues to be tried and what he expects to prove, which will be made at the trial immediately before evidence is introduced. An opening statement is not required, but it is desirable in any case involving numerous issues or complicated facts. It enables the court to grasp at the outset the theory of the case and to relate to the whole picture each piece of testimony as it is introduced. By thus preparing a simple and concise statement of what he intends to prove, and the facts that will be shown by the evidence to establish that proof, he makes sure that he has his case well in hand.
68. ATTENDANCE OF WITNESSES; STIPULATION; DEPOSITIONS.

    1. In general. Before the date for trial, the trial judge advocate must arrange to have witnesses who are to testify in person present at the trial. before deciding that the presence of a witness is necessary, he should first consider whether the evidence which that witness is expected to give can as well be covered by a stipulation or deposition.

       Stipulations. A stipulation is an agreement between the parties either as to facts, i.e., that a certain fact is true, or as to testimony, i.e.,

that if a certain witness were present in court he would testify as follows: (then set forth the stipulated testimony) (129b, MCM). For example, the parties might agree that the value of an automobile which the accused was alleged to have stolen was $350, or that the officer who authenticated an extract copy of a morning report was the legal custodian of that record, or that the accused had previously been convicted of certain offenses. Such an agreement would be a stipulation as to facts. (See app. 11, infra). Or, for example, the defense, while not admitting as a fact that the accused was in civilian clothes when apprehended, might be willing to agree that the policeman who arrested the accused would testify that the accused was dressed in civilian clothes when arrested. Such an agreement would be a stipulation as to testimony. (See app. 12, infra.) It is the duty of the trial judge advocate and the defense counsel to save the time and expense of having a witness brought to the trial by stipulating as to unimportant matters or undisputed facts (pars. 41b, 45b, MCM). Thus, if both the prosecution and the defense are satisfied that the value of an automobile alleged to have been stolen is $350 and that such value could easily be proved by calling as witnesses certain automobile dealers, there is no point in incurring the expense of having such witnesses brought to the trial and taking up the time of the court in hearing their testimony. A stipulation either that the automobile was of that value or that a certain named witness would so testify would be appropriate. Stipulations, however, should not be made as to vital matters amounting either to a complete defense or substantially admitting the accused's guilt (par. 126b, MCM). For example, if the accused pleaded not guilty to a charge of desertion it would not be proper to stipulate that he intended to desert the service, since such a stipulation would be entirely inconsistent with his claim that he was not guilty and would practically amount to a confession. Similarly a stipulation that the accused was 50 miles away from the scene of the crime at the time it was committed should not be entered into by the prosecution since in effect it constitutes a complete defense.
3. Depositions If a witness cannot personally appear at the trial for any reasonable cause, such as sickness, age, or imprisonment, or if he lives or is about to go outside the state where the trial is to be held or more than 100 miles away, his deposition may be taken to be used in evidence (AW 25. That is, questions by both sides, either written or oral, will be submitted to him at his home or other place where he is found and his answers will be written down and sworn to before some person who has power to administer oaths, such as notary public or an officer mentioned in AW 114. these written answers constitue his deposition and may be introduced in evidence in lieu of his testimony in person. A deposition may be introduced in any case by the defense. The prosecution may introduce it in any case that is not capital, but may not introduce it in a capital case unless the defense expressly consents in open court to its use. Before arranging to have a witness appear in person, the trial judge

advocate should consider whether a deposition will answer the purpose without involving equal or greater inconvenience or expense (97a, MCM). Thus, if a civilian witness in a larceny case lived outside the state or more than 100 miles away from the place of trial, it would be possible for the trial judge advocate to use his deposition instead of having him testify in person. Of course, the testimony of a witness before the court often creates a stronger impression than the reading of his written testimony. The trial judge advocate must balance the advantage to be derived from his testimony in person against the inconvenience, possible delay in trial, and expense to the Government involved in summoning him as a witness. The procedure for taking depositions is fully described in paragraph 98, MCM. A completed deposition is set out in appendix 13, infra.
4. Attendance of military witnesses. (par. 97c, MCM). If the witness is in the military service and stationed near the place of trial, the trial judge advocate will informally notify him to attend, either orally or in writing. In the case of an enlisted man, such notice should be given to his commanding officer so that he can arrange for the presence of the witness. Ordinarily a witness should be notified at least 24 hours before the time when he will be required to start for the trial.

5. Attendance of civilian witnesses. (par. 97b, MCM). A civilian witness is usually willing to attend voluntarily if arrangements are made with him in advance and he is informed that he will obtain his fees and mileage going to and returning from the place of trial. Unless the trial judge advocate believes that the witness will not come unless formally served, he will simply mail to the witness a subpoena (WD AGO Form 117) in duplicate and a return addressed envelope, with the request that the witness sign the acceptance of service on one copy of the subpoena and return the copy. If, however, the trial judge advocate believes that the witness will not attend unless required to do so, he will arrange to have the subpoena formally service on the witness. While such service may be made by any person, it should normally be made by an officer. If the witness is a considerable distance from the station of the trial judge advocate, the subpoena may be sent to the commanding officer of a station near the witness with the request that he arrange to have it served. A completed subpoena, with a certificate of service, appears in appendix 14, infra. Subpoenas should be issued to a civilian witness so that he will have 24 hours notice before starting to the trial.

6. Attendance of witnesses for the defense. Upon request by defense counsel, the trial judge advocate should make arrangements to procure the attendance of witnesses desired by the defense. Defense counsel may withdraw his request for the attendance of a witness if the trial judge advocate enters into stipulations as to facts or testimony which are undisputed or unimportant. If the testimony of a witness requested by the defense seems to be unnecessary, or it appears that a deposition of that witness will fully answer the purpose, the trial judge advocate may take

the matter up with the appointing authority or the court if during trial, before incurring the expense and inconvenience of summoning the witness. Unless the request by defense counsel is unreasonable, however, any witness requested by him should be summoned.
69. ARRANGING FOR TRIAL.

    1. Notifying members, witnesses, and the accused. He should arrange with the president of the court as to the time of the trial, and give adequate notice to the members of the court and all others concerned, such as witnesses, of the hour, date, and exact place of meeting. This notice can take any form, even that of an oral communication. All that is required is that those concerned have sufficient advance information so that they will be present at the trial. (See appendix 10, infra, for suggested form of written notice to members of the court.) He must also make arrangements to insure the presence of the accused at the trial. This will require notice to the prison officer if the accused is in confinement. Unless the accused is a general prisoner, he should be dressed in a service uniform, not in fatigue or prison attire.

    2. Preparation of courtroom, etc. The trial advocate is responsible for obtaining a suitable room for the trial and having it supplied with the necessary tables, chairs, stationery, etc. He should have prepared for each member of the court a typewritten copy of the charges and specifications in the case. The court is not entitled to examine the charge sheet itself or any data appearing on the first page of the charge sheet. Unless, therefore, each member has before him a copy of the charges and specifications, it may be difficult for him to follow the case, particularly if the specifications are numerous or complicated.

70. DUTIES DURING TRIAL. At the trial, it is the duty of the trial judge advocate to present the case against the accused. He should be familiar with the provisions of the Manual for Courts-Martial dealing with trial procedure, contained in paragraphs 49 through 84. A few of the important matters which may arise are discussed in chapter 13, infra. Appendix 1, infra contains an outline of the procedural steps to be taken in any case. Appendix 2, infra, sets out the complete transcript of the proceedings in the trial of Private Bark before a general court-martial showing how that case was presented by the trial judge advocate. Use throughout the trial of the procedural outline in appendix 1 will enable any trial judge advocate to cover all the formal procedure and guide him in the presentation of his case. In addition to trial procedure, a trial judge advocate must have some knowledge of the rules of evidence. Chapter XXV, Manual for Courts-Martial (pars. 110 through 126) compresses into some 30 pages a complete treatise on those rules. A trial judge advocate should consider such portions of that chapter as bear upon problems raised in his particular case. A few of the more common problems of evidence which arise are discussed in chapter 14, infra.

71. DUTIES AFTER TRIAL.

    1. Report of result of trial. Immediately after final adjournment of the court in any case,the trial judge advocate must notify the commanding officer of the accused as to the result of the trial (par. 41b, MCM). He must make this report even if the court did not announce the result of the trial in open court. The "commanding officer" to be notified is the post, regimental, or similar commanding officer of the accused, even though the court was appointed by higher authority. It is, however, desirable to send a copy of the notice also to the authority appointing the court in such case. The purpose of the requirement is to permit the commanding officer to take prompt and appropriate action as to the restraint of the accused (par. 19, MCM), such as releasing him if he is in confinement and has been acquitted, or imposing some appropriate restraint on him if he has not theretofore been restrained and has been sentenced to confinement. A form for a report of the result of trial is set out in appendix 15, infra.

    2. Preparation of Record. It is the responsibility of the trial judge advocate to prepare, or cause to be prepared, the record of trial (par. 41b, 85a, MCM) and to make proper disposition of it.The preparation and disposition of records of trial are discussed in chapter 17, infra.

    3. Preparation of vouchers. The trial judge advocate should also complete the voucher for fees and mileage of a civilian witness and, if possible, deliver the vouchers to the witness before he leaves the place of trial so that he may promptly submit the voucher to the proper disbursing officer for payment (app. 5, MCM). A completed voucher for fees and mileage of a civilian witness is set out in appendix 16, infra. A similar duty exists as to the preparation of the voucher for the reporter, if any. The compensation to which a reporter is entitled is discussed in chapter 17, and a completed voucher for compensation of a reporter is set out in appendix 2, p. 190, infra.

72. WEEKLY REPORTS. Unless the appointing authority directs otherwise, the trial judge advocate is required to submit a weekly report to him, through the president of the court, of the status of cases which have been referred for trial. This report must in any event state the reasons for the delay in disposing of cases that have been on hand for over 2 weeks (par. 41b, MCM), but the appointing authority may require an explanation for a shorter delay. A form for such a weekly report is set out in appendix 17, infra.

Table of Contents
Previous Chapter (9) *  Next Chapter (11)