Chapter 7.
Investigation of Charges
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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.
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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.
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INVESTIGATION PROPER.
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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.
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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.
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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.
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PREPARATION OF SUMMARIES OF EXPECTED TESTIMONY.
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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
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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.)
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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.
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SUFFICIENCY OF EVIDENCE TO SUSTAIN CHARGES.
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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.
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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.)
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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.
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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.
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REPORT OF INVESTIGATING OFFICER.
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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.
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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.
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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.
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INVESTIGATION OF THE CASE OF PRIVATE BARK.
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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
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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.
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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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