Chapter 7.
Investigation of Charges

41. PURPOSE AND SCOPE OF INVESTIGATION UNDER AW 70. The purpose of the formal investigation required by AW 70 is to inquire into the truth of the matter set forth in the charges, the form of the charges, and what disposition should be made of the case (par. 35a, MCM). It is not the investigator's function to build up a case against the accused, but to ascertain and impartially weigh all facts in arriving at his final conclusions. He is required to conduct "a thorough and impartial investigation" (AW 70). All available evidence should be exhausted. The investigating officer is not limited to examination of the witnesses and documentary evidence indicated on the charge sheet; he should extend his investigation as far as may be necessary to make it thorough. Failure of investigating officers to perform their duties in a careful and conscientious manner will sometimes cause injustice to be done and will often require return of the charges for further investigation, thus delaying the proceedings.

42. PRELIMINARY PROCEDURE UPON RECEIPT OF CHARGES. Before starting the investigation proper, the charge sheet and accompanying papers should be examined with particular attention to the witnesses and evidence relied upon the accuser to substantiate the charges. The investigating officer should familiarize himself with the essential elements of each offense charged so that he will be able to determine whether the evidence received in the investigation supports the offense charged. Paragraphs 129 through 152, MCM, contain a discussion of the more common offenses under the Articles of War, and give in detail the necessary elements of proof in each case. Each specification should be compared with the corresponding form in appendix 4, MCM. Any minor corrections necessary to put it in proper form may be made and authenticated by initials. Changes of substance may not be made.

43. INVESTIGATION PROPER.

    1. Since, in the absence of a satisfactory reason, the report of investigation should be completed within 48 hours, immediate steps must be taken to arrange a time and place for the investigation at which the accused and all available witnesses will be present.

2. At the outset, the accused should be advised that an impartial investigation of the charges is to be conducted. The nature of the charges, the name of the accuser, and the names and substance of the testimony of all witnesses should be made known to him. He should be shown the charge sheet and accompanying papers. He should then be advised that he has the right to cross-examine all witnesses against him if available, to call any available additional witnesses in his own behalf, to introduce any other evidence, and to make any statement bearing on the case subject to the risk of having it used against him. He must be specifically warned that it is not necessary for him to make any statement. He should be made to understand that the investigating officer is seeking the truth, not playing the role of prosecutor.

3. After the accused has been fully advised of his rights, all available witnesses should be called and examined in his presence. In examining witnesses the investigating officer should encourage them to talk freely, being alert to discover any evidence not disclosed by the papers. If witnesses are not available, their expected testimony should be read to the accused and he should be asked if he desires to have them questioned further. If he does not, the witnesses need not be called, even if they become available. If the accused does wish to question them, the investigating officer should ascertain whether they will be available within a reasonably short time and, if so, whether the officer referring the charges for investigation will consent to a delay for the purpose of questioning such witnesses. The investigating officer may ascertain the substance of the testimony which the accused expects from any witness, and inform the accused that such testimony will be regarded as having been taken; and if accused then withdraws his request to have the witness questioned, such witness need not be called even if he is available. The decision of the officer having immediate summary court-martial jurisdiction over the witness (e.g. the regimental commander) as to the availability of the witness if final (par. 35a, MCM). The accused has no right to counsel, although in exceptional cases the commanding officer of the accused may, in his discretion, permit counsel.
44. PREPARATION OF SUMMARIES OF EXPECTED TESTIMONY.

    1. Witnesses. After each witness has been examined and cross-examined his material testimony should be reduced to writing and recorded on a separate sheet of paper headed by the name of the witness, a notation as to whether he was sworn, and any other appropriate explanatory comment, e.g., "Johns, Walter E., Pvt., Co. B, 111th Infantry, Fort Meade, Maryland (Sworn)," "Werner, Irwin A., grocer, 112--13th St., N.W., Washington, D.C. (by telephone)." The summary should be in the first person and should be reasonably brief without sacrificing important details. Matter which is obviously hearsay or which could serve no useful purpose at the trial should be excluded. Although witnesses need not sign or swear to

their statements, it is advisable to secure signed and sworn statements if practicable. If the witness is sworn, the following jurat: "Subscribed and sworn to before me that _____ day of ___________, 19___," should be added after his signature. The jurat will be signed by the investigating officer, who has authority to administer oaths for all purposes of the investigation. (See AW 114, and app. 2, pp. 180-185 infra, for examples of summaries of expected testimony.)
2. Statement of accused. (Any statement made by the accused will likewise be reduced to writing, will be read over to him, and he will be given the opportunity to sign it, if he so desires. But he will not be required or induced to sign it and will be advised that it is not necessary for him to do so.
45. SUFFICIENCY OF EVIDENCE TO SUSTAIN CHARGES.

    1. General. After the investigating officer has heard all the witnesses and examined all documents and other relevant matters, he will check the essential elements of the offense with the evidence to determine whether the charges can be sustained. It often will be impossible to find direct evidence of every element of the offense charged, but the element may be established by reasonable inference from other pacts (par. 112b, MCM). Thus, for example, all the essential elements of a larceny may be proved by showing (1) the disappearance of the article from the possession of its owner without his consent (from which it is inferred that it was taken and carried away by trespass), and 2) the unexplained possession by the accused of this same article shortly thereafter (from which it is inferred that it was the accused who committed the trespass and carried the article away) and 93) the fact that the accused had made no report of having the property of another in his possession, well knowing the incriminating nature of such possession, plus, perhaps, the fact that he used the property as his own, or asserted ownership of it through pawning it or otherwise (from which it is inferred that he had the intention to deprive the owner permanently of his property). Whenever the intention of the accused in an essential element, as for example, in desertion, larceny, burglary, murder, it almost always must be inferred from the circumstances.

    2. Lesser included and related offenses. If the evidence is not sufficient to establish the offense charged, it may tend to establish a lesser included offense--i.e., an offense which must be proved in establishing the principal offense, but which lacks some of the additional elements of the principal offense. For example, absence without leave must be proved to establish desertion, but does not contain the element of intent to remain away permanently or to avoid hazardous duty or shirk important service required for desertion; wrongful taking without the consent of the owner must be shown to establish larceny, but lacks the element of intent to deprive the owner permanently of his property required for larceny. (See app. 8 infra for a list of some of the more common lesser included offenses.)

If the evidence tends to establish only the lesser included offense, the investigating officer may recommend that the lesser offense be substituted on the charge sheet for the greater offense originally charged, or, in case of doubt, that the accused be tried on the original charge since the court can always find him guilty of the lesser included offense. (See par. 106, infra.) The evidence may, however, show a different offense, not included in the offense charged. For example, if under a charge of larceny the evidence showed that the accused did not wrongfully take the property but that it was entrusted to him, the offense of embezzlement should have been charged. In such case, the investigating officer may recommend that the original charge be withdrawn and the accused tried on a substituted charge. The investigating officer should draft the substituted charge on a separate charge sheet, have it sworn to (or swear to it himself if to the best of his knowledge and belief the facts it contains are true) and forward it with his report of investigation.
46. RECOMMENDATION AS TO DISPOSITION OF CASE. If the investigating officer decides that the evidence will not support a finding of guilty of the original charge, or of some lesser included or other offense, he will so report, recommending dismissal of the charges. If he is in doubt as to whether the charges can be sustained, he can properly recommend trial, particularly if the offense is of a serious nature, so that the doubtful issue of fact can be determined by a court. If he is convinced that the charges can be sustained, he will then recommend the type of court to which they should be referred.In this connection he will be guided by the policy with respect to trial by inferior courts discussed in chapter 6, supra.

47. REPORT OF INVESTIGATING OFFICER.

    1. Contents. If he determines that the charges should be dismissed, disposed of under AW 104, or tried by inferior court, the investigating officer may make an informal report to that effect to the commanding officer, either orally or in writing. If the commanding officer then decides not to forward the charges, the investigating officer may be required to make only a very abbreviated formal report or none at all (par. 35a, MCM). He must make a complete formal report, however, when required to do so, or when he himself recommends trial by general court-martial. The printed form of Pretrial Investigating Officer's Report (WD AGO Form 120, see app. 2, p. 177 infra) may properly be used, but is use is not required, and other forms may be provided locally for this purpose. The report will include a recommendation as to the disposition of the case, a statement of the investigating officer's opinion as to whether the accused is or was mentally defective, deranged, or abnormal; and a statement of the substance of the testimony taken on both sides (par. 35a, MCM). The report, together with a summary of the expected testimony of witnesses, and any statement by the accused, will be prepared in triplicate.

2. Documents and other evidence. A list of all documents and other evidence (such as a pistol, knife, or shoes) and any other matters which have been considered, with such comment as may be necessary to identify them, should be made in the space provided on the form. Where practicable to do so, documents should be attached to the report, fastened to legal size paper to permit ready incorporation into the file. Official records and bulky documents or evidence will not be attached, but a statement will be made as to where they may be found. Articles to be used as evidence, which have been placed for safekeeping in the possession of a responsible person (for example, a billfold believed to have been stolen, which has been found in the accused's locker and delivered to the company commander) should be left in his custody, if practicable, until they are produced at the trial. The reason is, of course, that in order to identify the articles when introducing it in evidence, it may be necessary to present the testimony of each person who has had it in his possession since it was found in the accused's locker, and this procedure becomes unduly complicated if the article has passed through several hands.

3. Explanatory remarks. A statement of any explanatory or extenuating circumstances should be made in the report whether they are offered by the accused in his own behalf or are developed by the independent inquiry of the investigating officer. These circumstances, which perhaps have no direct bearing on the question of accused's guilt, may be very important in determining the type of court to try the case. Comments as to appearance and apparent credibility of the accused or other witnesses may be included. In short, all matters which were given weight by the investigating officer in making his recommendation should appear in his report.
48. INVESTIGATION OF THE CASE OF PRIVATE BARK.

    1. Examples of the forms and procedure used in investigating charges appear in the case of Private Lennie O. Bark (app. 2 infra). By first indorsement on the letter of transmittal (app. 2, p. 176 infra) the regimental commander referred the charges to Lieutenant Neeland, investigating officer. Lieutenant Neeland first studied the charges and the accuser's summary of evidence, and noted that the offenses alleged were willful disobedience of a superior officer, escape from confinement, and desertion; and that the specifications followed the appropriate forms in appendix 4, MCM. He then examined the paragraphs in the Manual for Courts-Martial dealing with the elements of proof of these three offenses (pars. 134b, 139b, and 130a, respectively, MCM). It appeared that the witnesses whose testimony was outlined in the accuser's summary of evidence should be able to testify to all of these necessary elements. Accordingly, he promptly arranged for the witnesses to come to his office at regimental headquarters and for the accused to be brought there under guard. This was a fairly simple matter, since all were members of the same command. If

some witnesses had been in other organizations or were civilians, the investigating officer might have had to go to them; or, if it had not been practicable for the accused to be brought from his place of confinement, it might have been necessary to interview him and the witnesses at the guardhouse.
2. After advising Private Bark in the manner outlined in paragraph 43b, supra, Lieutenant Neeland interviewed each witness separately in Bark's presence, with the exception of Lieutenant John Smith, giving Bark an opportunity to cross-examine each and to make a statement himself. Lieutenant Smith was interviewed by telephone after the accused had been shown the summary of his expected testimony and stated the he did not wish to cross-examine him. After the hearing he prepared, in triplicate, a summary of each witness' testimony which was signed and sworn to by each, except Lieutenant Smith. (See app. 2, pp. 180-184 infra.) The accused elected to remain silent rather than make a statement. Concluding that the statements of the witnesses were sufficient to support the charge, Lieutenant Neeland prepared his report in triplicate (app. 2, pp. 177-178 infra) recommending trial by general court-martial, attached the statements as exhibits, and returned all three copies, with the charges and accompanying papers, to the regimental commander.

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