Charles Henry Lee.

The judge advocate's vade mecum : embracing a general view of military law, and the practice before courts martial, with an epitome of the law of evidence, as applicable to military trials online

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tion, * * this intercourse is productive of the best results."
Sec. 44. It next becomes necessary to summon the wit-
nesses for the trial. The usual course is to append a

'■ ' hint c.f wit-

list of those for the prosecution to the charges. This, '""'''' •'".'"-

howcver, cannot be demanded as a right; but, ob- """'
serves Captain Simmons, "unless there is some sufficient cause
to justify* its being withheld, it would not be in accordance
with the existing practice to refuse the prisoner a list of
witnesses for the prosecution. The almost universal custom
is to give it as a matter of course."

Sec. 45. The Judge Advocate also receives from the pris-
oner the names of such as he desires to be called
on his part, and ihcy are usually summoned, liut
here, too, a rcaHonaMe and sound discretion is to be exercised,
subject to this limitation, tliat no witness, nor an}- commis-
sioned officer, shall be called at the e.rpense of the government^
unless the ends of justice clearly require it. If sufficient cause
appears wh}- it should not be done, such as the great distance.

Anil rwrir-

46 JUDGE advocate's vadk mecum.

and important engagcmeiit.s ol' the witness, an<l heavy expense
of his ti'ansportation, the .Iiulice Advocate may decline to make
the summons, and may submit the question for the deeision of
tljc court, Avho will direct what is proper. Whore this course
is adopted, tlie whole proceeding connected with it is entered
on the record of the court. Xor is the examination restricted
to such witnesses as arc thus summoned; but either party may
introduce such as are legally competent, so long as his case
remains unclosed. Yet it is deemed desirable and " most ex-
pedient that the lists fln•lli^hl•ll the Judge Advocate slioiiKl
contain the names of every witness whom the jiarties intend
to call."*

Sec. 45. No particular form is rerpiired in summoning a
witness. In the Knglish service. tl\e Judge Advocate

No form . . i • i i • /. i i

rcjuiitd in 18 invcstcd With authority to eniorce the attendance


of civil witnesses. With us, no such authority exists;
but under the provisions of the 74th Article of war their
depositions may be taUcn — both parties being represented or
notified of the time and ])lace at whicli such testimony is to
be given.

Sec. 4(i. Jn suinnioning niililary witnesses, it is only neces-
sary for the .Indire Advocate to advise the command-
•*"""""•"■■'■ ing officer, or the War department, of the names of the
witnesses required. The pro[)er instructions for their attend-
ance is then issued, and, of course, olteycd. Lastly, it is
_ , important to observe that all witnesses should he

Tu lif Hiim- 1

""""■''■'"'y at the earliest practicable day. This i.s
desiral)le not only to prevent vexatious delay, but to enable
each party to be entirely prepared for the trial.

Sec. 47. Having progressed thus far, it is now ilesirable,
though not incunilient, tiiat the .ludge Advocate

Ili-Kt t.> pre- , , , \ ■ i' 1 i. \ • I-

pare- a blithe slioUHi jircparc a linel, or short anal3'sis, tor con-
ducting the trial and lor examination of the wit-

■*' Kciincilv.


nesses. Tliis will grcatl}* fiicilitatc the operations of the court,
and be of mucli assistance in the progress of the trial. In-
some cases the "task is tlelegated to hitn of arran<^ing a
prosecution on particular grounds designated by superior au-
thority," and it is then his duty to ascertain the "facts in
issue, and all the particulars relating thereto," and be prepared
•accordingly, lie has lastly, under authority of the
commanding ofiicer of the post, or through the me- \>\"r.c,7


dium of an officer of the quartermaster's department,
or in the absence of such, on his own responsibility, U) provide
a suitable apartment for the meeting of the court.- This it is
his duty to do.

Sec. 48. We are now, secondly, to consider the duties of a
Judge Advocate in immediate connection with the trial, Duties an
and as an officer of the court. theoonrt.

The following summary of what may be denominated the
cardinal principles, to be kept in view by the Judge

Main prinri-

Advocate, is given by Captain Hughes, and should be p'^" •"»''•"■•
remembered bj^ all who are called to discharge the duties of
this responsible office :

" That justice is the object for wliich a court martial is con-
vened and the Judge Advocate appointed."

"That the great principle of a military court is honor; a
conscientious adherence to substantial justice."

"That the business of a court martial is not to discuss points
of law, but to get at the truth by all the means in their power."

*' That a Judge Advocate is the mainspring of a court mar-
tial ; that on him the court depends for information concerning
the legality as well as the regularity of their proceedings, and
if he errs all may go wrong."

Sbc. 49. The authority to apjioint a Judge Advocate when-
ever a general court martial is assembled is derived . ,_,
from thr r,!>th Article of war. The observation of "'f^"'
Do Hart on this subject, is as apjtropriate here an<l now as

48 junnE advocate's vade mecum.

when he wrolo. lie s:iys : "The broad interpretation given to
all h'lxishition, touehin*^ tliis authority, is, lh:it he who lias tlie
power to aj)poiMt general courts martial has, incidentally as
well as directly by statute, the ]>ower also of appointing some
fit person to act as Judge Advocate."*

The 60th Article of war above mentioned, and to which the
c'.nh Artido I'^'Ji'J*-''' 'i^ referred, ver}' briefly adverts to the special
duties of this officer, and presents the leading idea of
what they were designed to be.

Sec. 50. Besides this, there has been no special legislation by

Congress on this subject. Nevertheless, the duties of

8i>ccmi the Judge Advocate are generally clearly defined by


militai-y writers. Says (leiu'ral Kennedy : "A Judge
Advocate appears at a court martial in three distinct charac-
ters. 1st, as an ofiicer of the court, for the purpose of

Y<'t Ills ihi- ... ,. ..... ,

ties Ki-MiT- recordinir its proceedini;s and administering the re-
ally dc-iinej. » 1 o »

(|iiisiic oaths; 2d, as the adviser of the court in mat-
ters of form and law; ;)d, as pul)lic prosecutor. In llu- first of
these chai-actcrs he is of course subject to the orders of the
court, who may direct their proceedings to be conducted and
recorded as they think proper; but in the other two characters
the court can exercise no control whatever over the Judge
Advocate, as in the pci't'onnaiice of these duties lie must be
allowed to act according to his own judgment and discretion."
And Captain Simmons remarks: "The duties of a Judge
Advocate are various and important. He records all the acts
ol'lhe court, and all oi'al evidence — as near as may l>c the very
wonls of the witness; he notes the hour of assembly and ad-
journment, and generally all incidental occurrences, particu-
larly the clearing of the court, the cause thereof, and, where
interlocutory judgments are given, the decision. lie advises
the court on points of law, custom, and form, and invites their
attention to any deviation therefrom."

• Pftgo 308.


Sec. 51. The Judge Advocate may, to a limited extent,
asBist tlie prisoner, notwithstanding he is required

•\r . 1 1. Knw far he

to '^prosecute for the government, let, in the dis- maynidthp


charge of tlie duties of liis office, lie does not alwaj'S
occup3' preci.sely the position of prosecutor. This ie evident
from the three-fold character which, as already shown, he
bears before the court, as officer, adviser, and prosecutor. Upon
this point General Ki-iined}" thus lays down the rule: "It is
expected that the Judge Advocate, if consulted by either a
private prosecutor or by the prisoner, should give him the best
information and advice in his power; but an opinion which
was long ])revalent in the army, that it was the official dutj^' of
the Judge Advocate to assist the prisoner in the conduct of his
defence, appears to be no longer maintained. To affording
him, however, such assistance, if requested as a favor, 1 sup-
pose no Judge Advocate would ever object; and if a prisoner,
therefore, wishes to avail himself of it, he is merely to make
the requisite application, which will, no doubt, be complied
with. It is, however, to be observed, that the Judge Advocate
ought not for a moment to forget his duty as prosecutor; and
though he ought on the defence, as well as at all other times,
to restrain the prisoner from advancing anything which might
criminate himself or prejudice his case, he is still bound, by
the cross-examination of the prisoner's witnesses, to give every
effect to the prosecution. In court, therefore, it is not in the
power of the Judge Advocate to afford the prisoner any effect-
ual assistance, for there he could neither advise him nor frame
questions for him. nor cross-examine the prosecutor's witnesses,
which acts could alone be of any essential benefit to the prison-
er; but out of court there can be no impropriety in the Judg«
Advocate pointing out to a prisoner the manner in which he
might best conduct his defence for him. A defence, however,
caonot be ma<lc wit ii out a knowledge of the circunif>itancoii of
the case, and it would, therefore, seldom be prudent for the

oO JUDr.E advocate's VADE MECIM.

prisoner to acquaint tlio Judiro Advocate with the real nature
of the transaction alleged in the charire, or to disclose to him
the grounds on whidi he intended to rest his exculpation. A
prisoner, however, may jjive to the .Tml^e Advocate a memo-
randuu) of the ])oints on wiiich he wishes his own witnesses to
be examined, and the opposite jiart}- cross-examined, or a list of
questions to the same effect, and request him to put only such
interrogatories to the witnesses as he tliinks necessary, and to
frame the questions in his own words."

Sec. 52. So, likewise, I)c Hart referrini; to tliis suhjoct ob-
serves :

"It is evident that the provisions of the (iltth Article of war
were intended for the benefit of enlisted soldiers, whose igno-
rance makes the counsel of the Judge Advocate much more
necessary than in other cases, and to whom it most forcibly
applies. It would, consequently, be incumbent on

Judge Advo- ^ * i ^

(•ate to see ^^g Judfjc Advocatc to scc that no improper advan-

iiii improper " i r

takenoi^" tagc bc takcn of the prisoner by the admission of

prisoner. .,, , . , 1,1 i- ,!• 1

illegal testimony, but that he direct him how to
.present the tacts on which his delenee may hinge in the most
effective light to the court. The prisoner ma}* give a memo-
randum of the points on which he wishes his own witnesses
examined, and the ojiposite party cross-examined, to the Judge
Advocate, and request him to j)ut the (piestions in his own
words. In general terms it may bo remarked, that it is the
duty of the Judge Advocate to shape questions in legal form ;
to solve all difliculties as to the relev.-incy of facts adduced by
either paity; to see that the prisoner shall not sutler from a
want of i<Mowledgc of the law, or deficiency of experience, or
ability to elicit from witnesses a full statement of the facts
bearing on his case; and to this extent both the court and
Judge Advocate are bound to give their advice to the prisoner.
He should also give him reasonable aid in his defence cither
in point of law or justice, ami where dou'itful ([uestions arise.


rather incline to the side of the prisoner; and, above all, never
omit an}' circumstances of the proceedings having a tendency
to palliate the charges against the accused. As to the pro-
priety of speaking with the prisoner before triiil, Major Hough
says, "he conceives great good ma}' often result, particularly in
the case of a private soldier, as the Judge Advocate is more
free from bias it may be supposed than any other person."

Tiiere is some difference, it M'ill be noticed, between the
opinions here quoted from Captain Simmons and Captain De
Hart, as to the duty of the Judge Advocate to the accused
irhile in court. But, under the language of the 67th Article of
war. there would seem to be verj' little doubt that the views
expressed by the latter writer are correct; and leaning as they
do to the side of the accused, should be preferred, especially
where he is without the aid of counsel.

.Sec. 53. It is conceded, therefore, that either party has a
right at least to the opinion of the Judge Advocate, whether
in court or out of it, u]K)n any questions that may arise in the
course of the trial, or in connection with it.

Sec. 54. We are thus brought to consider the duties of the
Judge Advocate in open court. And here it should ,^j, ^^^j
be premised that this officer, being the representative H,',Titect"u'

„ , , ... fliallenKe.

of the government at general courts martial, is not
subject to challenge on any ground. He ma}', moreover, be
absent, though this is not desirable, during part of tin* time,
and may afterward resume his duties without invalidating the

Sec. 55. We have already adverted to the two-fold duties
of Judge Advocate, as public prosecutor and legal adviser of
the court.

Let us consider them more particnhirly, and in their order.
Under the authority of the OUtli Article of war, it is settled
that the Judge Advocate only, or person appointed to act as
nach, can appear as prosecator before a court martial.* The

• •!>• Hart, ,117.

52 JUDGE advocate's vade mecum.


conduct of the prosecution devolves upon him. In
comiucrthe ^''^ discharge of tliis duty, lie acts agreeably to his

own judgment and discretion ; and although, as an
ojficer of the court, it may direct him as to the particular man-
ner of recording and arranging the proceedings, yet it cannot
control him in the exercise of his peculiar office as prosecutor —
as liy direclinii; him to withdraw or alter a charge, to withhold
evidence, den3-ing his right to reply, or placing any obsta-
cle in his waj' while engaged in the proper discharge of his
duties — for he is appointed wholly to conduct the prosecution,
"to search out the tiuth and obviate a failure of justice." He
is therefore " bound to lay before the court the full particulars
of the circumstances which arc considered to have been an
infringement of the ordinances of the army, or perhaps of the
state; and in so doing must produce, without partiality or
favor to either part}^, all evidence that tends to elicit the truth.
However painful it may be to his feelings as an individual to
sustain a prosecution, whether the evidence tends to conviction
or acquittal, his duty to the state, the maintenance of disci-
pline, ami above all Justice, demand a faithful discharge of the

Sec. 50. Impartialit}- is one of the first duties of this ollice,

though from the natural desire which is felt to suc-

Duty of ini-

imitiiiiity in (.^^Q^l jj, \vh:it is uiulerltiken, liiis iii<>-h obliii-ation is

Jiulfii; Auvo- f^ •"

""'" too frequently overlooked. The Judge Advocate

should, therefore, " be particularly carelul not to let one part
of his business prejudice him in the conducting of another, nor
-lead him to endeavor to bias the court by any ambiguous ex-
planation of the law, or of other matters. Truth and equity
ought to be conspicuous in courts martial, but chicanery never
jjermitted to enter the door. A Judge Advocate should never
omit an3'thiiig in the record which may be of service to the
prisoner; nor, on the other hand, is he to let the cause of pub-

» Hughes, 118,


lie justice suifer and a criminal escape unpunished through

lenity, or an}' other motive whatever.*

Sec. 57. But while it is the dut}* of the Judge Advocate

thus to prosecute, he is at the same time, in some

Judgfi Ad-
sense, to regard himself as the friend and counsel of Y'r'^'f *]"!

' ~ friondofthe

the prisoner. He must not himself put leading ques- **^'="*''''-
tions, and should object to their being put by others. He
should also observe the same rule as to questions tending to
criminate either the prisoner or a witness. Particularlj' is a
Judge Advocate to prevent any improper advantage being
taken of the prisoner, and to record fully and fairly ail that
appears in his favor, so that it maj' be brought to the view of
the court and of the revising authority. f He should treat
the prisoner liberally, and be careful that nothing is brought
against him by surprise. | In short, his whole duty consists in
so conducting the prosecution that the whole and nothing but
the truth shall be revealed and put on record, and entire jus-
tice done to the state, the service, and the individual.

Sec. 58. Next, and intimately connected with the duty of
tlie Judge Advocate as public prosecutor, is that of
legal adviser of the court. This latter duty is very •""'?'"A'1vo-

o J J cafe aa legal

accuratcl}' defined in the following passages from * ^^''"'

"Another important duty of the Judge Advocate during the
trial is the instructing or counselling the court, not onlj' in
matters of essential and necessary form, with which he must
be presumed to be, from practice, thorouglily acquainted, but
in explaining to them such jioints of law as maj' occur in the
course of their proceedings, for wliich purpose a Judge Advo-
cate ought to instruct himself in the general principles and
rules of law and in the practice of criminal courts.

" In the performance of this duty he will always bo guided

* CspUin Adye, in O'Bricn'g MiltUrj Law, 282.
t O'Brirn. 2«4. J O'Brien. 2H5.

54 JUDGE advocate's vade mecum.

by a just sense of his official cliaracler and situation ;

JudpcArtvn. . ,. . , , . .

ra\c lias no as lio lias 110 judicial power, nor any detenniiiativi'


voire or j II- voice cither in the sentence or interlocutory oi)inions

dicial power. •' '

of the court, so he is not entitled to reyulatc or dic-
tate those sentences or opinions, or in any shape to interfere in
the proceedings of the court, further than hy giving counsel or
advice, and (unless the court demand it) iiis own discretion
must be his sole director in suggesting when that may be
seasonable, proper, or necessary."

"On every occasion when llie couii (k'liiands his opinion, ho
is bound to <ri\e it with freedom and am])litude, and

M«Bt (five ^ ^ '

hm opinion even when not requested to deliver his sentiments,

when re- * '

quired. j^j^ duty rcquircs that he should put the court upon
their guard against an}- deviation either from any essential or
necessary forms in their proceedings, or a violation of material
justice in their final sentence and judgment.

"A remonstrance of this nature urged with due tt.'iiiporaiice
., and respect will seldom, it is i)resumed, fail to meet

May remoli- i ' i '

with its proper regard from the court; l)ut should it
ha])])en that an illegal measure or an unjust opinion is, never-
theless, persevered in, the Judge Advocate, though not war-
ranted to enter a dissent in the form of a ])rotest upon the
record of the ]iroceedings (for that iinj)lics a judicative voic»\),
ought to insert therein the O])inion delivereil by him upo;i the
controverted jioint. in order not only that he may stand
absolved from all iiii])ulatit»ns of failuic in his duty of giving
counsel, but that tin- error or wrong may be fairly i>rought
under the consideration of the power with whom it lies, i-ither
to ai)prove and order into eflect, or to remit the ojjcration
of the sentence."

Sec. 59. It is lioth the right and duty of the Judge Advo-
cate where a difference of opinion arises between him-

Right to ,/. , 1 . ....

record iiis sclf and tlic court, to insert the opinion he has given


in the proceedings or annex it to them. Indeed, Gen-


criil Kennedy ohserves, liis attendance on tlie court would be of
no use whatever, if he were not permitted lo insert in the
record any opinions of importance he may give during tlie
trial, wliether adopted by the court or not. "But," he adds,
"a Judge Advocate ought certainly to refrain interposing his
opinion except on occasions where he apprehends the probable
occurrence of some irregularity or illegality, or where ques-
tions of importance arise to the proper decision of which he
may think that the expression of his sentiments might con-
tribute. It is, however, his most particular duty to object to
the admission of improper evidence, and to point out to the
court the irrelevancj' of all such matter as ma}' be adduced
which does not tend to prove either directly or consequentially
the charge under investigation." And "should he observe the
court inclined to find a verdict contrary to the evidence, it is
undoubtedly- his duty to endeavor, by the expression of his
opinion, to prevent it from deciding so erroneously."

Captain Hughes* refers to a case mentioned, he says, by
Major Hough, wherein a court, having acted contrary to the
advice of the Judge Advocate, was thus rebuked l>y the review-
ing authority :

^* JJisapproved : Because the court, having taken upon itself
the decision of a question of law, instead of having permitted
the exposition of law given by the district Judge Advocate-
General to guide it, has permitted the error of finding the
prisoner guilty of manslaughter, with the exception of the
words ' feloniously and wilfully' — the first of those words being
indispensable to define the crime of manslaughter; thus the
court has affirmed the crime, after having abstracted the es-
sence which constituted it: if the act was not feloniously done
the crime charged was not committed."

Sbc. 60. When the court is considering the sentence, the

•Page 124.

56 JUDGE advocate's vade mecum.

Judge Advocate sliould ex])ress no opinion, lie is
Advocate not I'esponsible ior the punishment adjudged, to what-

to give no

opinion M evei* extcut he ina}' be answerable for the correct-
to Heutonco.

ness of the linding. But after the sentence has been
passed, there is no objection to the Judge Advocate ])<)inting
out anv error or illegality in the natui-e or degree of the
„ . , , punishment awarded by the court.* lie should not

Or in closed 1 ''

^""'^*' assume the office of prosecutor or adviser in a closed

court, nor give an}' opinion at such time unless required liy the

court. This is the icenc-ral rule; exci'plioiial cases

Except '^ ' '

'*'"""■ iiiay, however, occur, in which the Judge Advocate

must exercise a sound and proper discretion. If the court is
manifestly proceeding in the sentence, or any of its delibera-
tions, in opposition to established law or the custom of the
service, it would then he his duty to interpose with his opinion
and a statement of the law on the subject. But the general
rule is as already stated. In no case Avhere the question is
within the discretion and competency of the court should the
Judge Advocate attempt to interfere, so long as the limits of
legal authority are duly observed and respcctod.f It
point's for is ucvcr (Icsirablc to seek after points for discussion,


or to intrude advice upon immaterial (]uestions; much
less should a Judge Advocate insist on placing on record his
opinions upon subjects of no importance. Such a course natu-
rally tends to irritate the court and unnecessarily to consume
its time.|
Sec. 61. The court having now met, Hie first duty of the

Judge Advocate, after reading aloud the order con-
vocifte't'. veniiig it, is to sec that it is legally constituted. To

gee Court . _

is lo-iiiiy this end it is essential that the number of oltlcers


required for a quorum is ])resent, and are so by com-
petent authority. He should also, before proceeding to trial.

« Kennedy. f ^^ Hart, 328. J Same, 328, 329.


be careful to administer the oath required by tlie OOth

^ "^ Oath.

Article of war; and be himself sworn by the Presi-
dent, as directed Iw the same Article. The mode of adminis-
tering; these oaths is thus described by De Hart: " The

" -^ MoJe of ail-

members of the court and the Judge Advocate stand ; """''stpring.
the pei*sons to be sworn lift the right hand ungloved, when the
Judge Advocate recites, in an audible voice: 'You, Colonel
A B, Major C T), Captain E F (thus naming, with his rank,

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Online LibraryCharles Henry LeeThe judge advocate's vade mecum : embracing a general view of military law, and the practice before courts martial, with an epitome of the law of evidence, as applicable to military trials → online text (page 4 of 20)