DEPARTMENT OlF THE ARMY PAMPHLET 27- I 00-3 I MILITARY LAW REVIEW Vol. 31 Articles FORMER TESTIMONY d4ajor Joseph E. Donnhue THE 1NTE:RRELATIOUSHIP OF THE UNITED STATES ARAIY AND THE NATIONAL GUARD Go1 o n el WilIinm L . Shaw THE CODE OF COSDUCT IN RELATION TO INTERNATIONAL LAW .ZIajor Elizabeth R. Smith, Jr. MILITARY JUSTICE IN THE REPUBLIC OF VIETNAM Colonel George F. Westerman HEADQUARTERS, DEPARTMENT OF THE ARMY JANUARY I966 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. Arti- cles should be of direct concern and import in this area of scholar- ship, 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, triple spaced, to the Editor, Military Law Review, The Judge Ad- vocate General’s School, US. Army, Charlottesville, Virginia. Footnotes should be triple spaced, 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 31 MIL. L. REV. (number of page) (1966) (DA Pam 27-100-31, 1 January 1966). For sale by the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, Price: $75 (single copy) . Subscription price : $2.50 a year ; $.75 additional for foreign mailing. AGO 6126B i MAJOR GENERAL GEORGE B. DAVIS Judge Advocate General 1901-1911 George Breckenridge Davis was appointed the tenth Judge Ad- vocate General of the Army. His appointment followed that of Thomas F. Barr of Massachusetts and John W. Clous, a native of Germany, each of whom served as Judge Advocate General for one day in May of 1901 in order to retire with the rank of Brigadier General. Davis was born at Ware, Massachusetts, on February 13, 1847. In 1863, at the age of 16 years, he finished high school and en- listed in the 1st Massachusetts Volunteer Cavalry. As a cavalry- man and later a 2d Lieutenant of Volunteers, he served in 25 battles and engagements during the War Between the States. Appointed to the United States Military Academy two years after the War, Davis graduated in 1871 and was commissioned a 2d Lieutenant of the 5th U.S. Cavalry. Immediately after his marriage to Ella Prince of West Spring- field, Massachusetts, in July of 1871, Lieutenant Davis spent two years on the Wyoming and Arizona frontiers with the 5th Cavalry. His next tour was at West Point, where he served for five years as Assistant Professor of Spanish, teaching French, geology, chemistry and mineralogy as well. Promotion to 1st Lieutenant in 1878 brought with it another five-year tour on the Western frontier. The return to West Point in 1883 gave Davis a chance to head the History Department as Principal Assistant Professor, and to serve as Assistant Professor of Law, instructing also in geography and ethics. During this tour he completed his Outline of International Law. Simultane- ously with his promotion, Captain Davis was rotated to the West- ern Territory in August 1888. Only four months later, however, Davis’s professional abilities were recognized and required in Washington. He was appointed a Major, Judge Advocate General’s Department, and transferred to the Office of the Secretary of War. Davis took advantage of the Washington tour to obtain his LL.B. and LL.M. degrees at Columbian (now George Washington University) Law School. AGO 6125B iii He was made Lieutenant Colonel and Deputy Judge Advocate General in 1895, but left Washington the next year to serve as Professor of Law at West Point. It was during the next few years that Davis completed his major publications. His Elements of Law and Elements of In- ternational Law (1897) were followed by his definitive Treatise on the Military Law of the United States in 1898. In addition, Davis authored several historical and professional works on the tactical use of cavalry. The War of the Rebellion, a 70-volume compilation of the official records of the Union and Confederate Armies, was principally his work and was published in his name in 1880-1901. Davis was promoted to Colonel in 1901, and a few months later became a Brigadier and Judge Advocate General-a post he was to occupy for a decade. General Davis guided his Department through the Spanish-American War, and handled the investigation and trial of the notorious cases arising out of that war. He also represented the United States as Delegate Plenipotentiary to the Geneva Conventions of 1903 and 1906, and the Hague Conven- tion of 1907. On February 14, 1911, General Davis retired with a promotion to Major General. He died on December 16, 1914. iv AGO 6125B Pam 27-100-31 PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-31 WASHINGTON, D.C., 1 Junua.1-y 1966 MILITARY LAW REVIEW-VOL. 31 Page Articles : Former Testimony Major Joseph E. Donahue _____-______________1 The Interrelationship of the United States Army and the National Guard Colonel William L. Shaw ...................... 39 The Code of Conduct in Relation to International Law Major Elizabeth R. Smith, Jr. __________________ 85 Military Justice in the Republic of Vietnam Colonel George F. Westerman _________________ 137 TAG0 6125B-January V FORMER TESTIMONY* By Major Joseph E. Donahue** The purpose of this article is to present a discussion of the use of former testimony under the Uniform Code of Military Justice. Emphasis will be placed on its histor- ical antecedents, its relationship to usages in civilian criminal jurisdictions together with an analysis of the terminology of paragraph 145b, Manual for Courts- Martial, United States, 1951. I. INTRODUCTION A. DEFINITION “Former testimony” is a term of art that has a common mean- ing whether it is used in civil or criminal trials, Federal or State trials, or military or civilian trials.’ It is testimony, made under oath, at an earlier judicial proceeding, at which the party against whom it is sought to be used, if he is the accused, was present and had an opportunity to cross-examine the witness who is un- available for the subsequent proceedings. Although the term is sometimes applied to impeachment testimony, to admissions and confessions, to testimony used to refresh recollection’2or as past recollection recorded: to testimony which in itself is criminal (perjury), and to testimony showing motive for a crime by the accused: it is used in this article, unless otherwise indicated, only * 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 Thirteenth 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, US. Army; B.A., 1950, Norwich University; LL.B., 1957, Har- vard Law School; member of the Bars of the Supreme Judicial Court of Massachusetts, the U.S. Court of Military Appeals, and the US. Supreme Court. But see MODEL CODE OF EVIDENCE rule 511 (1942) and UNIFORM RULE OF EVIDENCE 63 (3) which substantially change many of the traditional charac- teristics of former testimony. .2 See Hale, The Missoul-i Law Relative to the Use of Testimony Given at a Former !Mal, 14 ST. LOUIS L. REV. 375 (1929). See 3 WIGMORE,E VIDENCE S 737(1) (3d ed. 1940). See MCCORMICK,E VIDENCE 481 (1954). AGO 6126B 1 31 MILITARY LAW REVIEW in reference to testimony introduced to prove the facts contained in that testimony, both during the case in chief and during sen- tencing proceedings, which otherwise would be hear~ay.~The ex- tent to which former testimony requires identity of issues and parties is discussed under separate headings. All case law under the Uniform Code of Military Justice has focused on the use of former testimony by the prosecution. As it is believed that this will continue to be the only area creating significant problems, such use is considered unless otherwise indicated. B. THE MANUAL RULE In United States district courts and in most state courts the admissibility of former testimony is governed by case law. The military rule for the use of former testimony, set forth in para- graph 145b of the Manual by the President acting pursuant to his authority under Article 36, UCMJ, is: b. Former testimony. -When at any trial by court-martial including a rehearing or new trial, it appears that a witness who has testified in either a civil or military court at a former trial of the accused in which the issues were substantially the same (except a former trial shown by the objecting party to be void because of lack of jurisdiction) is dead, insane, too ill or infirm to attend the trial, beyond the reach of process more than one hundred miles from the place where the trial is held, or cannot be found, his testimony in the former trial, if properly proved, may be received by the court if otherwise admissible, except that the prosecution may not introduce such former testimony of a witness unless the accused was confronted with the witness and afforded the right of cross-examination at the former trial and unless, in a capital case, the witness is dead, insane or beyond the reach of process.