The navy’s court-martial system has been under unusual pressure since 1941. More than three million men, no longer all volunteers, drawn from every stratum of society, have brought to the Navy an element that is new. It was not possible to keep out of the Navy all of the men of military age who were so constituted as to be potential law violators. In addition, the Navy is now scattered over most of the earth and operates in regions where there is and can be little or no co-operation from civil authority, and in which the Navy must enforce the law for its own personnel. As a result of these circumstances the Navy is now required to detect and punish a volume of crimes of a serious nature which, while it is small in proportion to total numbers, is in the aggregate greater than was expected when the present naval court-martial system was first established.
During the past quarter of a century great improvements and simplifications in legal methods and procedure have been brought about. Crime detection has been organized on a scientific basis. Practice in the federal and in many state courts has been overhauled, clarified, made less complex, and speeded up. Army court-martial procedure was reconstructed in 1920. This has been an era in which legal procedure and court organization have been streamlined. But in the midst of this interesting and stimulating development on every side the Navy’s legal system has remained curiously stationary.
The need for some improvement in naval court-martial procedure and organization is evident. With no intention of suggesting detailed remedies, and with the purpose merely of contributing to the discussion of an important problem, and above all with no thought of altering the fundamentals of naval law and discipline, some of the ways by which better administration of naval law and modernization of court-martial procedure might be brought about are here presented. These are arranged under eight topics, as follows.
(1) The procedure for investigating crimes could be improved.—It will be remembered that courts-martial deal with two distinct types of offenses. First, there are purely military offenses as to which courts-martial have exclusive jurisdiction. It was with military offenses that courts-martial, until the outbreak of the present war, were chiefly concerned. The investigation of military offenses presents no unusual problems. Such offenses come with little effort to the attention of a commanding officer and are as easily proved. But in addition to the purely military offenses there is a second class of offenses, offenses of a criminal nature, as to which the jurisdiction of courts-martial is concurrent with the jurisdiction of civil tribunals. These offenses do present unusual problems. In this class of offenses the fact that there has been a crime is not always evident, but must be sometimes first discovered. After discovery of the crime the circumstances surrounding it must be brought to light, studied, systematized, and proved. No one who is not familiar with the methods of a criminal investigation should undertake an inquiry into an offense of this nature. Such crimes are seldom solved by inexperienced laymen. In cases of this type the investigator has to understand and be able to recognize admissible evidence, get the facts out of unwilling witnesses, and follow a faint trail to the end. For such work even the police force requires special education. Most large cities maintain crime detection training schools and so does the Federal Bureau of Investigation. The Army has felt the need for skilled criminal investigators and uses them in its Criminal Investigation Division. The Navy could well consider following these precedents. It now does not have any such body of trained men; Naval Intelligence and the Shore Patrol perform other functions. Unless the Navy develops and trains investigators for this work, it will never succeed in bringing to justice all of the men in the Navy who are certain to violate the criminal law.
The nearest approach to a grand jury which the Navy now has is a court of inquiry or board of investigation. These bodies must, however, name as a defendant any person whose conduct is the subject of investigation, and as a defendant such a person has the right to be present with his counsel. The presence of defendant and counsel during the investigation of a crime makes the proceeding difficult and often futile. Criminal investigation, in its preliminary stages, usually cannot be successfully conducted with the full knowledge of the suspected person. The grand jury, on the contrary, is designed to work in secret in order that it may get at the facts before there is the time and the opportunity for them to be concealed. Defendants and their counsel are not present at the sessions of a grand jury. The fact that a particular person or crime is under investigation is not known until an indictment has been returned. Witnesses testify in secret. There are many situations in which witnesses cannot be induced to tell their story by ordinary methods. The honest Navy is astonished and helpless when such situations arise. The grand jury, with its right to compel testimony and its power to keep the testimony secret can, however, draw the required answers from many an unwilling witness. A grand jury or its equivalent is sometimes necessary for successful crime detection.
(2) Procedural trial remedies could be amplified.—When offenses have been committed by naval personnel the witnesses may be under orders to sail within a few hours. If there has been delay in the discovery of a crime the witnesses may by that time have been transported to the far corners of the earth. On such occasions, it usually comes as a surprise to learn that without the consent of all concerned there is no prompt and satisfactory method for taking the depositions of such witnesses, and that, if depositions are taken, their use is limited. Nowhere are personnel taken away so quickly or for such great distances as in the Navy. Nowhere, therefore, is there greater need for the use of depositions. And nowhere other than in the Navy are the difficulties of taking depositions and the restrictions upon their use more extreme. Taking depositions is a commonplace in civil proceedings. Depositions can be taken upon oral interrogatories and upon short notice. Army practice permits depositions to be taken orally either by consent or by direction of the court and upon short notice, and permits their use for any purpose except on behalf of the prosecution in capital cases. But in the Navy a party who does not want evidence used against him can prevent the taking of an oral deposition by withholding his consent. As a result, the party who desires to have the deposition taken must first prepare written interrogatories. The opposing party must then be given reasonable notice and may prepare written cross-interrogatories. These interrogatories and cross-interrogatories must then all be passed upon and approved by the court, and the court may add further written interrogatories of its own. All of these written interrogatories must then be propounded to the witness and his answers to them must be reduced to writing. This is the work not of hours but of days or weeks. Furthermore, if such a deposition is used, the sentence cannot extend to death or dismissal or to confinement for more than one year. These limitations usually leave no choice to a judge advocate whose witnesses are about to depart. He must either hold his witnesses for trial, or get along without their testimony. If the witnesses have already departed neither party has much choice. It is not often practicable to delay a trial long enough to take the depositions of absent witnesses upon written interrogatories. This is a difficult and unjust situation for litigants to be in, and it results in the loss of untold man hours on the part of naval personnel. The rules which govern the taking of depositions and the use of depositions when taken need to be extended to their full legal limits.
Members of courts-martial are subject to challenge on certain grounds which are specified in Naval Courts and Boards. In addition to these specified grounds for challenge there are other reasons on the basis of which either the prosecution or the defense may wish to challenge a member—reasons which cannot be stated because they are indefinite and intangible and personal. These unformulated grounds are often believed by litigants to be of the utmost importance. Courts generally recognize this fact and in the civil courts each party has a limited right of peremptory challenge, that is, to make a limited number of challenges for which no reason need be assigned. Army courts-martial allow each party one peremptory challenge, and such challenge may extend to any member of the court except the law member. If litigants in naval courts were each permitted to make one peremptory challenge some injustices would be prevented, and litigants would more frequently be satisfied that the decision of the court was free from bias or prejudice.
The charges and specifications in a court- martial case, like the indictment in a criminal proceeding, contain only a bare statement of the offense. The surrounding circumstances do not appear from the face of these papers. It is the practice in criminal proceedings before civilian tribunals to permit each party at the commencement of the trial or before he offers evidence on his own behalf to make a statement of what he intends to prove. This preliminary statement serves a dual purpose. In the first place it informs the court regarding the details of the offense, presents the offense in the light of the surrounding circumstances, and indicates the opposing theories. With this information the court is better able to understand the evidence as it develops and to rule more intelligently upon objections. In the second place such statements may disclose certain points on which the parties are in agreement and may thus serve to narrow the issues and shorten the trial. This procedure might need to be modified in order to adapt it to court- martial practice, but a preliminary statement of the evidence, theories and points of agreement, if any, would certainly help the court to a better understanding of the controversy.
(3) Paper work could be simplified and made less exacting.—Navy standards of paper work are certainly higher than the standards of civil courts generally. They are higher than those required in Army courts-martial proceedings. Exactness in paper work may provide valuable discipline and training for accuracy in other things, but, in time of war, excessively high standards of paper work take time from other essential activities. Furthermore, preoccupation with the details of form distracts attention from matters of substance in the proceedings themselves. Emphasis on form is certainly contrary to the general tendency in judicial proceedings today. In fact, emphasis on form in legal proceedings indicates a certain immaturity. Since other courts function with less extreme accuracy in paper work, it is probable that naval court-martial proceedings would not suffer from a reasonable relaxation of the present requirements. Less severe requirements might even be applied to the preparation of the charges and specifications, which could, in many cases, be expressed in fewer words without violating the rights of the accused. British naval courts-martial use surprisingly terse forms of accusation. Although summary courts-martial are not here under special consideration, the records of these inferior courts could, with all due regard for both legal and practical considerations, be reduced in size and content and to a form but little different from the form now used for the records of deck courts, a change which would, if adopted, save time.
(4) Sentences could be placed upon a scientific basis.—The factors which determine the adequacy of a sentence can be analyzed, approximately estimated, and stated with some degree of certainty. Information regarding these factors should be made available and put to use. Sentences should not, as is now occasionally the case, be the result of mere guess work. The weight which should be given to age; to education; to citations, awards or commendations; to previous good or bad conduct; to previous convictions, and to similar circumstances can and should be given an approximate value. There should be somewhere available a table showing within reasonable limits degrees of punishment deemed appropriate for offenses. The extent to which the possibility of rehabilitation of the accused should be taken into account, should be explained. If a sentence of confinement is awarded, the length of the confinement, among other things, governs the choice of the correctional institution to which an accused may be sent. Courts should perhaps have some information as to the nature of the Navy’s correctional institutions and as to the possible effect of their sentence upon the choice of an institution. In all these matters courts now have no guide, but they should have some means of arriving at a better approximation of justice if they are to avoid inconsistencies in the final outcome of cases so extreme as to sometimes shake confidence in naval justice.
(5) Courts-martial could be strengthened as to personnel.—A civil criminal tribunal has two component parts. There is a jury, which passes upon the facts. There is a judge, who passes upon the law and instructs the jury with reference to the law. Experience has demonstrated that the first component cannot successfully function without the second. Both are usually needed, but if either the judge or the jury had to be dispensed with, it would be more difficult to dispense with the judge than with the jury. Civil courts, excepting some justice of the peace courts which are notorious for the errors they commit, never function without a judge. The need for some one who could do for a court- martial the work of a judge was considered when the Articles of War were revised in 1920. As a result provision was made by the Eighth Article of War that on each Army general court-martial one law member should be detailed. The 1920 revision made many changes, but no change was made which has received more general approval than this one. The presence of the law member has speeded up trials and reduced error in Army court-martial proceedings, and the same result might be expected if a law member were required in naval courts. This law member should be thoroughly familiar with both criminal and military law, and this should not be left to chance. He should be required to have had a general legal education, to have had actual trial experience, and to have completed a course in military law.
Not only the law member but all the other members of general courts-martial should be familiar with the subject of military law. At one time, of course, all naval officers were required to study this subject. At that time, officers could not attain sufficient rank to sit on a general court-martial without having served in the Navy for such length of time as to have afforded them an opportunity to observe and study the operation of courts-martial. When an officer was appointed as a member of a court he therefore knew what was expected of him and he was equipped to render a creditable performance. Of the newer officers this is no longer true. Upon first entering the service, at least, many of these officers were in one respect somewhat like necessity, in that they knew no law. They had had no previous need to study military law and after they became naval officers they did not have the time nor the opportunity to supply the deficiency. These are the officers, however, from whom members of courts-martial must for the most part be appointed. It is these officers who will have to determine the validity of charges and specifications, rule on pleas in bar, pass upon motions, decide whether or not evidence is admissible, arrive at legal findings, adjudge appropriate sentences, and express their action in exact and formal phraseology. It will always be hard for inexperienced and uninstructed personnel to do these things and do them satisfactorily. Before a man in civil life is permitted to perform such functions he must have spent long years studying law and more long and strenuous years putting into practice what he has learned. Members do not need the educational and professional qualifications of judges, but neither can it be assumed that they are qualified for court- martial duty merely because they are officers. No officer should be appointed to act on a general court-martial who has not read and studied Naval Courts and Boards and who has not passed a course in that part of military law which concerns his duties as a member. Such a course of study could be limited to the material which a member would need in the trial of a case and be thus shortened and not made an unnecessary burden. But whatever the details of instruction might be, courts- martial can scarcely be expected to function satisfactorily until their members are informed as to the legal rules and principles which they will be called upon to apply.
Many naval officers have the basic legal training which, with further training in military law, should qualify them to do good work as judge advocates. Some of the country’s best trial lawyers are in the Navy. Comparatively little use, however, seems to be made of these officers in this capacity. Many officers who have legal training may be needed elsewhere, but judge advocates could still be chosen from officers who have legal qualifications as easily as they could be chosen from officers who have, as observed at advance base courts, been marine engineers, shipbuilders, or salesmen, the latter occupation providing the best basic training of the three, although not ideal. Not all lawyers can try cases, and not all those who can try cases have had training in military law. Certain types of cases can perhaps be tried without any particular training. Cases of absence without leave and the like can probably be disposed of by almost anyone, particularly where the plea is guilty, although, even in such cases, there must be somebody at hand capable of doing the hard and exacting work of preparing the record in a form that will not bring down adverse comment upon all concerned. But there are other types of cases in which no amateur can hope to succeed, no matter how keen his mind, no matter how tireless his industry. One cannot learn overnight the things one must know to try successfully the murder cases, the rape cases, the theft and embezzlement cases, and the other cases of a criminal nature which now reach the naval courts. In such cases the accused does not always plead guilty, and the art of presenting convincing evidence of guilt is long and hard to learn. There is no substitute for experience and special training in this work. The Navy now provides a school for military government at Columbia University. Perhaps the idea behind the military government educational program could be applied to the training of qualified judge advocates.
Court-martial proceedings cannot be conducted slowly. Witnesses may try for a moment to speak slowly “so the reporter can get it,” but they are soon again absorbed in their story and racing rapidly ahead. Cross- examination, in particular, is spirited. Occasionally the outcome of a case may depend on whether relentless cross-examination can wring the truth from a reluctant witness. Skillful questions driven rapidly home have brought the witness to the point where he must answer. In the battle of wits the tempo of the questions and answers has increased. At the exact point where the witness has exhausted his last subterfuge and is finally ready to surrender and tell the truth, there is an interruption. A voice asks, “What was that last question?” It is the reporter. While the difficulty is being adjusted the witness regains his composure, thinks his way out of his difficulty, and escapes. “There is a tide in the affairs of men” and in court proceedings as well which must be taken at the flood if it is to lead on to victory. Such a tide cannot be ridden to success by either party unless the court is equipped with a reporter who can keep up with the testimony. Ordinary stenographers cannot meet this requirement; there is a tremendous difference between court reporters and stenographers. Stenographers take the dictation of a single man, become familiar with his voice, learn his phraseology and mannerisms, are acquainted with the subject matter. Their work is no preparation for reporting. They are lost in the midst of courtroom dialogue. No court is or can be patient enough to nurse along such a stenographer. No one can wait long enough for such a stenographer to decipher his notes, fill in the missing portions from memory and imagination, and produce the finished patchwork. If all this is true, and nothing that can be said of naval courts- martial is more true, then something should be done to see that competent court reporters are assigned to court-martial duty. A competent court reporter has through years of effort mastered one of the most difficult of all skills, skill in taking in shorthand and rapidly transcribing an accurate and complete account of courtroom proceedings. There are many competent court reporters in the Navy. These highly trained men should not be assigned as ordinary yeomen. They should be designated, paid, and assigned as court reporters. The amateur reporters should be relieved of courtroom duty and returned to work with which they are familiar.
The function of a legal officer, as applied to the work of courts-martial, differs from the work of both the members and the judge advocates. Legal officers frequently advise the convening authority with reference to preferring charges and at the close of the trial often review the proceedings, offer comment, and make recommendations. They thus perform the same general functions as do Army staff judge advocates. Their need for special training is apparent.
(6) Better material on naval law could be provided.—The revision of Naval Courts and Boards might be justified if for no other purpose than to include in that volume the changes which have been promulgated since 1937, and to incorporate therein the material which is now found only in the subsequent court-martial orders. A revision would, of course, be required to put into effect any extensive new changes in procedure. And a revision would appear to be justified for other reasons. “Index learning turns no student pale, yet holds the eel of science by the tail,” says Pope. An officer frantically searching in a limited time for the answer to a legal question needs a good index. Try to find “view by the court” or all the provisions regarding adjournment by means of the index to Naval Courts and Boards. Having done so, one will concede that it could be made easier. The forms of specifications which Naval Courts and Boards contain are, unfortunately, incomplete. No specification in the entire work is set forth in full except the first specification in the book, and this is a specification under the charge of making a mutiny which, because of its exceptional features, is not a good guide to use in preparing the more frequently used specifications. There are some topics in Naval Courts and Boards which appear to be inadequately dealt with. Such, for example, are the paragraphs concerning murder and manslaughter; Such Is the paragraph which deals with plundering an inhabitant on shore; and there are others. It would be most difficult to obtain complete understanding of these subjects from the information which is contained in Naval Courts and Boards. Some of the paragraphs, such as the paragraph dealing with drunkenness as a defense, could be amplified and made more clear. The work contains no definition of legal insanity, although the meaning of this term is frequently called in question. Much important material is contained only in footnotes, and these are not always easy to find. There are no parallel citations showing the relation of the section numbers in the present edition to the section numbers in former editions. Material issued since publication is not, but could be, keyed to Naval Courts and Boards. There is no provision by which court-martial orders and new material bearing on naval courts is made continuously available by pocket or other cumulative supplements. The foregoing is not pointed out to create the impression that Naval Courts and Boards is not a well-written and highly useful law book. It is intended to indicate what might be accomplished if use were made of new material and editorial and technical improvements. A better work on naval law, the use of which should improve the administration of naval justice, might easily result from such a revision.
There is much miscellaneous legal material which is not directly within the scope of Naval Courts and Boards, but which is nevertheless sometimes required in connection with naval court-martial proceedings. Material of this kind includes certain Acts of Congress, decisions of courts, executive orders, regulations and general orders which have incidental or occasional application to the work of these courts. Other such material is contained in court-martial orders, in the orders and letters of the Judge Advocate General, of the Chief of Naval Personnel, and in other department publications. The manner in which the rulings and regulations of many governmental agencies such, for example, as the Bureau of Internal Revenue, are assembled, co-ordinated, indexed, cross- indexed, and kept current both by the government and by private enterprise, is well known. The above described miscellaneous material pertaining to naval law is equally important, and could be made accessible by the use of these same methods.
(7) Courts should be given a more permanent character.—What is said on this topic has particular reference to general courts-martial organized outside the continental limits of the United States.
Skill and efficiency in legal work is not gained rapidly. Observation and study during extended periods are a necessary requisite to proficiency. Legal work is, furthermore, of such a nature that it can be done best if cases are followed through continuously and consistently by the same personnel. The services of permanent personnel who can give such work continuous attention and at the same time gain needed experience are usually desirable.
When a case requiring trial by general court-martial arises, and a court is not at hand, it is assumed that the most economical and expeditious manner of disposing of the case will be to organize a court on the spot and try the case where the offense was committed and where the witnesses are. Experience indicates, however, that the delays in getting the court organized, the lack of experienced personnel, and the lack of facilities more than offset the apparent advantage of trying a case near at hand. The hardest thing about a court-martial is its organization. After a court-martial has once been organized and has tried and disposed of even a single case, it can dispose of the next case with comparative ease. As a result it is usually easier to transport the parties, the witnesses, and the attorneys even for considerable distances to a ship or station at which an experienced court-martial is already organized and ready to function than it is to convene a new court. A permanent court, furthermore, affords the members opportunity to become more expert in military law and disciplinary problems. Permanent courts would seem to have much to recommend them.
(8) It could be realized that action is necessary now.—A vast body of men are now living under naval law. Many of them are living far from family and friends and the greater part of them are in the formative years of their lives. They are the best material our country has and they deserve as good a court-martial system as we can give them. The war will last too long and affect too many lives for improvement to be postponed to a more convenient time. There is no more convenient time. Improvement is needed now; needed while this war is being fought; needed while morale and discipline are all- important; needed while a better system can contribute to victory; needed to return men after the war equipped for the hard tasks of rebuilding that lie ahead. The possible improvements that have been described are simple. These possible improvements or others which may be found more practical can be quickly put into effect. The principal thing that is required is the realization that now is the time for action.
Clausewitz says that bodily exertion and fatigue in war “put fetters on the action of the mind, and wear out in secret the powers of the soul. Like danger, they belong to the fundamental causes of friction."
“ These things which as elements meet together in the atmosphere of war and make it a resistant medium for every activity, we have designated danger, bodily exertion, information, and friction." He never loses sight of this; it pervades everything he writes.—Murray, Reality of War.