Military Law Review

DEPARTMENT OF THE ARMY PAMPHLET 27- 1 00- 1 7 CORRECTED COPY MILITARY LAW REVIEW Articles CROSS-EXAMINATIO?J OF AN ACCUSED Captain Orrin R. J. Stribley, Jr. NATIONAL SOVEREIGNTY IN SPACE Captain George D. Schrader FINANCIAL COYTROL Lawrence E. Chermak bf ILITARY LOGISTIC SUPPORT OVERSEAS Richard S. Schubert Comments TREASON BY DOMICILED ALIEKS A FURTHER HISTORY OF SHORT DESERTION A BAD CHECK OFFENSE FOR THE MILITARY HEADQUARTERS, DEPARTMENT OF THE ARMY JULY 1962 AGO 6787B PREFACE The Military Law Review is designed to provide a medium for those interested in the field of military law to share the product of their experience and research with their fellow lawyers. Articles should be of direct concern and import in this area of scholarship, and preference will be given to those articles having lasting value as reference material for the military lawyer. The Military Law Review does not purport to promulgate De- partment of the Army policy or to be in any sense directory. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or the Department of the Army. Articles, comments, and notes should be submitted in duplicate to the Editor, Military Law Review, The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia. Footnotes should be set out on pages separate from the text and follow the manner of citation in the Harvard Blue Book. This Review may be cited as Mil. L. Rev., July 1962 (DA Pam 27-100-17, 1 July 62) (number of page). For sale by the Superintendent of Documents, United States Government Printing Office, Washington 25, D.C., Price: $.75 (single copy) . Subscription price : $2.50 a year ; $.75 additional for foreign mailing. AGO 6787B i Pam 27-100-17 PAMPHLET HEADQUARTERS, DEPARTMENT OF THE ARMY NO. 27-100-17 I WASHINGTON 25, D. C., 1 July 1962 MILITARY LAW REVIEW Page Articles: Cross-Examination of An Accused Before Courts- Martial Captain Orrin R. J. Stribley, Jr.________ 1 National Sovereignty in Space Captain George D. Schrader___________ 41 Financial Control : Congress and The Executive Branch Lawrence E. Chermak ________________ 83 Military Logistic Support of Civilian. 'Personnel Overseas Under Status of Forces Agrehments Richard S. Schubert __________________ 99 Comments: Treason by Domiciled Aliens (Rear Admiral Robert D. Powers, Jr.) __ 123 A Further History of Short Desertion (Wing Commander D. B. Nichols) ______ 135 Article 123(a) : A Bad Check Offense for the Mili- tary Captain Richard G. Anderson) ____ 145 Book Review: Immigration Law and Practice-By Jack Wasserman (Captain Frederick Goldstein) _________ 159 TAG0 6787B-Jul iii CROSS-EXAMINATION OF AN ACCUSED BEFORE COURTS-MARTIAL* BY CAPTAIN ORRIN R. J. STRIBLEY, JR.** I. INTRODUCTION At the point in a court-martial when an accused must elect either to testify on his own behalf or to remain silent, the defense counsel must make what is frequently the most important tactical decision in the defense of the case. The defense counsel knows that, while an accused need not testify on his own behalf and no inference should be drawn from his silence,l court members, being human, normally cannot completely ignore the fact that the accused elected to remain silent. After all, who is in better position to contribute to his defense than the accused himself? In a closely contested case, testimony by the accused can often tip the balance in favor of acquittal. But the defense counsel also knows that an accused cannot tell merely those facts favorable to his defense but “becomes subject to cross-examination upon the issues concerning which he has testified and upon the question of his credibility.”2 Consequently, the defense counsel must initially: (1) determine whether the accused has valuable testimony to contribute; (2) plan the direct examination of the accused so as to anticipate the scope of the cross-examination; and (3) compare the probable value of the testimony for the defense with the probable damage resulting from admissions made on cross-examination. To evaluate the situation properly the defense counsel should understand the rules concerning the scope of cross-examination and the testimonial waiver of the privilege against self-incrimination and should * This article was adapted from a thesis presented to The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia, while the author was a member of the Ninth Career Course. The opinions and conclusions presented herein are those of the author and do not necessarily represent the views of The Judge Advocate General’s School or any other governmental agency. ** JAGC, U.S. Army; Judge Advocate Section, Seventh United States Army (Europe) ; J.D., 1953, Iowa State University; Member of Iowa State Bar. 18 U.S.C. 0 3481 (1958); US. Dep’t of Defense, Manual for Courts- Martial, United States, 1951, para. 148e, hereafter referred to as the Manual and cited MCM, 1951. First recognition of the accused’s competency as a witness on his own behalf was in the Act of March 15, 1878, ch. 37, 20 Stat. 30. 2 MCM, 1951, para. 149b(1). AGO 678’7B 1 MILITARY LAW REVIEW know the interplay of these rules as they relate to the accused’s testimony. Only with this knowledge can the defense counsel proceed intelligently in selecting a course of action. Just as the defense counsel must balance the possible gain with the possible harm in deciding whether to advise an accused to testify, so must the trial counsel, once the accused has testified, consider the rules concerning the scope of cross-examination and the testimonial waiver of the privilege against self-incrimination. Because testimonial admissions by the accused can fill in gaps in the prosecution proof, the trial counsel cannot afford to use “kid gloves” in his handling of the cross-examination of an accused and so miss valuable opportunities to elict the truth. But he must always consider that, if, on review of the case, a reviewing au- thority determines that the scope of the waiver of the privilege against self-incrimination has been exceeded, probably it will be held to be general prejudice and a reversal of the conviction will re~ult.~ In this article the rules relating to the cross-examination of an accused in a court-martial will be analyzed in order to assist all of the trial participants, particularly the defense and trial counsel, in their handling of this phase of a court-martial. In doing this, the scope of cross-examination will be considered generally, to include a discussion of: (1) the extent of the accused’s waiver of the privilege against self-incrimination by testifying; and (2) the permissible scope of cross-examination of an accused. Counsel should never confuse these separate con- cepts. Distinct legal principles are involved and the waiver of the privilege against self-incrimination is not always coterminous with the permissible scope of cross-examination.’ For instance, in impeaching an accused through the use of acts of misconduct not resulting in convictions, a question which may be proper because it is within the permissible scope of cross-examination may be outside of the waiver of the privilege against self- incrimination and the accused may be privileged not to answer. This problem will be discussed in detail. However, problems inherent in the waiver of other privileges such as the husband- wife and attorney-client privileges will not be considered. When an accused testifies concerning less than all of the offenses charged, and, if the offenses are either factually interrelated or one offense tends to show intent, knowledge, or motive relevant to the other offense or offenses, these questions must be considered: Does the accused, merely by stating that he will testify 3 United States v. Williams, 8 USCMA 443, 24 CMR 254 (1957). 4 8 Wigmore, Evidence 0 2278 (3d ed. 1940). 2 AGO 6787B CROSS-EXAMINATION OF ACCUSED only concerning certain offenses, effectively limit the scope of cross-examination? How does the joinder of charges affect the scope of cross-examination when an accused elects to testify on less than all offenses charged? What effect does character testimony have when an accused attempts to testify on less than all the offenses charged ? The cross-examination of an accused after he has given “limited purpose” testimony will be disc~ssed.~When does his testimony “bear upon the issue of his guilt?” Must or should the same rules on scope of cross-examination after “limited purpose” testimony be followed in an out-of-court hearing as in open court? Finally, impeachment of an accused will be discussed, with consideration of the problems arising solely through cross-examination, that is, those concerning the form of the questions asked and the impeaching of an accused through the use of acts of misconduct not resulting in conviction. To provide a framework for the consideration of the cross- examination of an accused in a court-martial, the status of the accused as a witness will be compared with the status of an “ordinary” witness. Federal cases dealing with the principles relating to the waiver of the privilege against self-incrimination and the permissible scope of cross-examination will be discussed in an effort to relate the prevailing federal rules to those appli- cable to courts-martial. I 11. TESTIMONIAL WAIVER OF THE PRIVILEGE AGAINST SELF-INCRIMINATION In approaching the subject of the cross-examination of an accused either in civilian or military law, one must differentiate at the outset between two separate concepbs : (1) the testimonial waiver of the privilege against self-incrimination ; and (2) the permissible scope of cross-examination.

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