Chapter 14.
Evidence

  1. NATURE AND PURPOSE OF RULES OF EVIDENCE. Like civil courts, courts-martial are required to determine the case before them "according to the evidence" (AW 19), that is, solely on the basis of matters introduced before them at the trial and facts of which the court may take judicial notice. Every bit of this evidence must be presented in open court. If courts were allowed to decide on information they obtained from other sources, their decisions might be based on mere rumor, opinion or something equally untrustworthy. The information which can be introduced before a court upon which to base its decision and the method of presenting it are governed by the rules of evidence. These rules are based on common sense and long experience, and furnish a safe and efficient method of ascertaining the truth. The rules of evidence which must be followed by courts-martial are contained in chaper XXV, MCM. A decision of a court-martial based on facts not established by proper evidence cannot be upheld. Some knowledge of the rules of evidence must, therefore, be possessed by every trial judge advocate, defense counsel and summary court officer. While those untrained in law are not expected to master all the rules, they should know the fundamental principles which apply to the particular case being tried. Full instruction in the substantive law and rules of evidence is not within the scope of this manual. This chapter deals with only some of the rules more commonly encountered in trials. Because of this limitation reference must be had to the Manual for Courts-Martial for further study of other rules of evidence.

  2. DIRECT AND CIRCUMSTANTIAL EVIDENCE. Facts other than those of which the court may take judicial notice may be proved either by direct evidence or by circumstantial evidence. Statements of fact within the personal knowledge of the witness, or contained in a document which is admissible in evidence constitute direct evidence. Thus testimony of a witness that he saw the accused take property from the foot locker of another soldier would be direct evidence of the taking. The taking might, however, be proved not by direct evidence of a witness who saw the taking, but by indirect or circumstantial evidence. Thus, if a witness testified

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    that the stolen property was found in the accused's locker after the accused denied it was there, the court might infer, from the accused's possession and concealment of the property, the fact that he had taken it. Where the offense in question requires proof of a specific intention or knowledge or understanding on the part of the accused, it is almost always necessary to establish such intention, knowledge, or understanding, by indirect evidence. On a charge of desertion, for example, it is necessary to prove that the accused intended to remain away permanently or to avoid hazardous duty or shirk important service. Such intent is not a fact to which a witness, other than the accused, can testify and testimony of such intent would be merely an opinion or conclusion of the witness, which he is not permitted to give. (See par. 112b, MCM.) The intention could be proved only by evidence of things the accused did or said from which the court could infer his intention. That his unexplained absence continued for several months or more, or that he was apprehended while dressed in civilian clothes, or that he had traveled a great distance from his station before being returned to military control, or that he had stolen articles from his barracks mates shortly before leaving, though not directly proving his intention, constitute circumstances from which the court may in the light of other evidence and on the basis of its own general experience and observation, infer the existence of an intent not to return to his organization. The same principle applies to proof of knowledge or understanding,, as for example in cases of willful disobedience of lawful orders of commissioned or noncommissioned officers (AW 64, 65), where it must be shown that the accused knew that the order was given by a superior. (See par. 134b, MCM.) No witness can testify that the accused understood the order, or knew it was given by a superior, or that his disobedience was"willful." Those are conclusions which the court itself may draw from evidence as to the circumstances under which the order was given and what the accused said and did thereafter.

  1. HEARSAY RULE.

    1. Definition. Any witness other than an expert witness is allowed to testify only to what he himself did or what he observed with his own senses. He can testify, for example, that he ordered the accused placed in confinement, that he saw the accused climb out a window, that he heard shots being fired. He cannot testify to what someone else told him, as, for example, that the sergeant of the guard told him that the accused was placed in confinement, that the accused climbed out the window and that shots were fired at him. Such a testimony would be "hearsay." The "hearsay" rule means simply that a fact cannot be proved by having a witness testify as to statements made by someone else or by introducing in evidence a book, document, report, or other paper in which statements are made. Thus, of a soldier were being tried for larceny of property from a footlocker, testimony

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      of a witness that the accused's barracks mate said that he saw the accused take the property from the footlocker is no evidence that the accused took it. In such case the witness would not be testifying to facts within his own knowledge, but merely as to what someone had told him. The fact that the statement was in writing would not change the result. If the accused's barracks mate had told an investigating officer during the course of an official investigation that the accused took the property, and the statement was typed, signed and sworn to, the written statement could not be admitted. The best method of proving the fact would be to call as a witness the person who made the statement and let him testify in court from his own knowledge that he saw the accused take the property. Hearsay is literally no evidence at all. Even though hearsay evidence is admitted without objection, it cannot be considered by the court, and if the only evidence to support a finding is hearsay, the finding cannot be upheld. The hearsay rule does not mean a witness can never testify as to what he hear others say. Often one of the issues in a case is whether a statement was made, not whether the facts stated are true. If a soldier is charged with willful disobedience of the lawful order of a superior officer, for example, anyone who heard the order given by the officer can testify to what he hear the officer say. The issue to be decided is whether or not the order was given, and anyone who heard it given would be testifying as to a fact of which he had personal knowledge. Thus there would be no question of hearsay. Similarly, if a soldier were being tried for disrespect toward an officer by calling him incompetent, anyone within hearing at the time the remark was made could testify that he hear accused call the officer incompetent. The purpose of such testimony would not be to prove that the officer was incompetent, but only to show that the accused did in fact make that disrespectful statement. Such testimony is not, therefore, hearsay.

    1. Exceptions to the hearsay rule. The hearsay rule is subject to a number of well-recognized exceptions. These are discussed in paragraphs 114 through 119, MCM. A few of the more important exceptions are considers in the paragraphs below.

  1. ADMISSIONS AND CONFESSIONS-IN GENERAL. As stated above, the hearsay rule prohibits proof of a fact by having a witness testify to what someone else told him or by producing a written statement made by someone not in court. One of the principal exceptions to the rule is that which permits evidence as to admissions or confessions made prior to the trial by the accused himself. A witness may testify as to what the accused said, or a written statement made by the accused may be introduced in evidence. An admission is a statement made by the accused which connects him with the offense but falls short of a full acknowledgment of guilt. A confession is a full acknowledgment of

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    guilt or of substantially all the elements of the offense. Thus, a statement by a soldier that he "held up A and took his wallet" or that he "went over the hill to get out of the Army" are, respectively, confessions of robbery (AW 93) and desertion (AW 58), as they both acknowledge all elements of each offense. On the other hand statements that he "stuck a gun in his ribs but ran away when he saw the cops coming" or that he "took off to see his girl but was coming back in a week" are only admissions since they do not acknowledge all elements of the offenses of robbery and desertion, the first not admitting the actual taking, a necessary element of robbery, and the second expressly denying an intent to remain away permanently, a necessary element of desertion. The different rules as to the admissibility of evidence of admissions and of confessions are discussed below. It must be remembered that these rules apply only to admissions or confessions made by an accused outside of court. An accused may completely acknowledge his guilt in court by pleading guilty, or in his testimony as a witness, or in an unsworn statement. Or his testimony or unsworn statement may contain damaging admissions. In such circumstances there is no question of hearsay at all. The rules limiting the admissibility of evidence as to confessions by an accused have nothing to do with his statements made before the court.

  1. PROOF OF CONFESSIONS AND ADMISSIONS.

    1. A confession must be voluntary. Before a confession can be admitted it must be shown that it was entirely voluntary on the part of the accused. A confession is not voluntary if the accused was induced to make it, or materially influenced, by hope of obtaining some benefit, or by fear of punishment or injury, inspired by some person who had the authority, or whom the accused reasonably believed had authority, to do what he promised or threatened. Thus, if an accused made a confession because of a promise that if he confessed he would be released from confinement at once, or because of a threat that he would be beaten if he did not confess, the confession is not voluntary if the promise or threat were made by a person whom the accused reasonably believed could carry it out. In every case, therefore, before offering evidence of the confession the trial judge advocate should show all surrounding circumstances, including what was said by the person to whom the accused confessed. If the circumstances under which the confession was made raise any doubt as to its voluntary nature, the court should inquire further into the facts, permitting the defense to offer any evidence it may have on the point, before admitting the confession. The circumstances under which a confession was made may not suggest the need for any further inquiry, as for example, if a private confessed to a fellow private. In such cases the confession may be regarded as voluntary. Where, however, a confession is made to a military superior, it should be subjected to close scrutiny

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      and should not be admitted unless clearly shown to be voluntary, especially when the soldier confessing is ignorant or inexperienced and is being held in confinement. The fact that the accused was advised by his superior before making the confession that he need not make any statement at all, but that if he did it might be used against him, tends to show that the confession was voluntary, but is not conclusive on the point. Even a slight assurance of benefit held out by a military superior to an accused under charges is ground for rejecting the confession. Thus, if a company commander secures a confession from an enlisted man of his organization by stating that "matters would be easier for him" or "as easy as possible" if he confessed, such confession should not be regarded as voluntary. A similar result might follow as to confessions made by soldiers, upon assurances held out, or intimidation restored to, by noncommissioned officers depending upon the circumstances. In view of the peculiar conditions under which accused persons are often placed when making confessions, and of the probability of error or exaggeration on the part of the witnesses who relate them,. when oral, evidence of confessions is in general to be received with caution. Where, however, a confession is explicit and deliberate as well as voluntary, and is proved by a witness by whom it has not be misunderstood and is not misrepresented, it is one of the strongest forms of proof (par. 114a, MCM).

    1. The must be other evidence of the offense. An accused cannot be convicted solely upon evidence of a confession made by him outside of court. The prosecution is required to furnish evidence, wholly apart from the confession, that the crime charged was probably committed by someone, so that there will be some corroboration of the confession. This is known as evidence of the corpus delicti, i.e., body of the crime. Thus, in a trial for murder, it would be necessary to establish that the particular person whom the accused was charged with murdering had died under circumstances indicating that he was unlawfully killed, for example, that he was found dead from poisoning or a bullet wound. if that were shown, a confession by the accused that he had committed the murder could be considered. Ordinarily the prosecution should be required to prove the corpus delicti before it offers evidence of a confession. The court may, however, permit the confession to be offered first on the assurance of the trial judge advocate that he will prove the corpus delicti later. If he does not, the confession must be stricken out and disregarded by the court. This independent evidence need not be sufficient in itself to satisfy the court beyond a reasonable doubt that the accused committed the crime, nor even cover every element of the offense. All that is required is some evidence that the crime in question was probably committed by someone. Thus in a case of larceny, evidence that the property was missing under circumstances indicating that it was stolen,e.g., that a soldier's wall locker was pried open and that clothing was taken therefrom, would be sufficient. Or, in a case of desertion,

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      evidence that accused had absented himself without leave, e.g., a duly authenticated extract copy of his company morning report, would establish the corpus delicti.

    1. Procedure. After all evidence of the corpus delicti has been introduced, the prosecution will then be ready to offer evidence of the confession itself. The confession may have been oral or in writing.

      (1) Written confessions. A witness who was present at the time the alleged confession was signed or written should be called to the stand. The trial judge advocate should produce the confession and have it marked as "Prosecution's Exhibit 1 [or the next number in order] for Identification." It should be shown to counsel for accused and then handed to the witness. The witness should be asked if he can identify the statement, including when and where it was taken, who was present at the time, how it was prepared, e.g., taken down in shorthand and transcribed or written out in longhand, and whether or not he saw the accused sign it, write it in his own hand or otherwise adopt it as his statement. The witness will be asked what, if any, warning was given to the accused before he made or signed the statement. At this point the defense, if it so desires, may cross-examine the witness and introduce any evidence of its own on the issue of whether the confession was voluntarily made. The trial judge advocate should then formally offer the confession into evidence. The entire confession must be offered, as the prosecution has no right to withhold any portion. If the court is satisfied that it is voluntary, the confession will be admitted and marked as an exhibit. The entire confession should then be read to the court by the trial judge advocate, and will ultimately be attached to the record as an exhibit. (See app. 3, p. 233, infra.)

      (2) Oral Confessions. The person to whom the confession was made, or someone present at the time, will be called and sworn as a witness. The trial judge advocate will ask the witness if he had, or was present at, a conversation with the accused concerning the particular offense or offenses, and if so where and when it took place and who was present at the time. In views of the discussion in paragraph 96a it is advisable that the witness be asked what, if any, warning was given to accused before he made the statement, after which the defense will be permitted to cross-examine or introduce its own evidence on the question of whether the confession was voluntary. The witness will then be asked to relate what the accused said.

    2. Admissions against interest. Admissions or declarations against interest (par. 95, supra), unlike confessions, are admissible in evidence without any affirmative showing that they were voluntarily made. For example, if a military police officer arrested an enlisted man on suspicion that the latter had participated in a bank robbery, a statement by the soldier that he had been in the vicinity of the bank at about the time in question would constitute an admission against interest and could

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      be introduced in evidence despite the failure of the officer to warn him of his rights. Should it appear, however, that the admission was procured by means which may have been of such character as to have caused the accused to make a false statement, such as, for example, the use of "third degree" measures, the court should exclude or disregard all evidence of the statement.

  1. OFFICIAL WRITINGS.

    1. Admissibility in general. As already indicated (par. 94, supra), a written statement is ordinarily not admissible as prof of the facts stated in it since it is a statement made by someone outside of court, i.e., hearsay. This is true even if the statement is an official report. Thus, the written report of an investigating officer as to what a witness said at the investigation, or a written statement or affidavit by a military policeman that the accused was apprehended, would be inadmissible. The witness at the investigation or the military policeman must be called to testify in person. An important exception to this rule, however, is that which permits the use in evidence of official statements in writing made by an officer or other person who had the duty to know and to record the fact or event stated (par. 117a, MCM). The most common illustration of this rule is the admission of entries in a morning report. The company or other similar unit commander is charged by law with the duty to know and to make a permanent record in his company morning report of certain facts and events taking place within his organization. (See AR 345-400, 3 January 1945.) Since he must know and record the status of all men in his organization, an entry in a morning report of "Dy to AWOL," for example, is evidence of absence without leave. It is unnecessary to call the company commander himself to testify as a witness. The entry in the morning report is enough. This exception, it must be remembered, applies only to the original record of facts which the person making the record had a duty to know and to record. An investigating officer does not have a duty to know the facts to which a witness at an investigation testifies, whereas a company commander does have a duty to know the status of enlisted men in the company. The report of the investigation is, therefore, inadmissible, whereas the morning report is admissible. Other unit records in which facts must be originally recorded, such as the record of 8individual clothing and equipment, a payroll, or a guard report, are admissible on the same principle. For instance, entries in a guard report relating to confinement or escape from confinement would be admissible to establish those facts, without calling as witness the prison officer or other person making the entries. (See app. 2, p. 215, infra.)

    2. Entries obviously not based on personal knowledge. One qualification must be observed as to official records of facts which the recording officer has a duty to know and to record. If it appears from the record that the officer making the entry obviously did not have personal

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      knowledge of the fact recorded, the entry is treated as hearsay. Thus, a company commander is required to enter in the morning report facts affecting the status of men in the organization, but it may be obvious that he cannot have personal knowledge of those facts. For example, suppose a solider stationed at Camp A was ordered to proceed on detached service to Camp B a considerable distance away. While en route to Camp B he absented himself without leave and failed to arrive at Camp B at the designated time. At his trial for absence without leave the trial judge advocate offered into evidence an extract of the company morning report made at Camp A reciting absence without leave of accused while en route to Camp B. It is obvious that the entry in question was not based on the personal knowledge of the company commander at Camp A, as the alleged unauthorized absence did not originate at the station of his organization and the entry must have been based on information obtained from outside sources. A proper method of proving absence without leave in such case would to be offer into evidence a duly authenticated extract of the morning report of the company at Camp A reciting the transfer from Camp A to detached service at Camp B, an authenticated copy of the orders transferring accused from Camp A to Camp B, and a duly authenticated extract copy of the morning report of the organization to which accused was assigned at Camp B, showing his absence without leave by failing to arrive at the point of destination at the required time. The latter entry, i.e., that accused failed to report at the organization at the time ordered, would be within the personal knowledge of that organization commander. Another common unauthorized use of a hearsay entry in a morning report is the attempt to prove termination of absence without leave or desertion at a place or post other than that where the particular unit is stationed. If a company is located at Camp A, an entry in its morning report that an absentee of that company surrendered to or was apprehended by either the civil authorities or the military authorities at a location other than at Camp A would obviously not be within the personal knowledge of the absentee's company commander at Camp A and would be no evidence at all of the termination of the absence. This does not mean that termination of absence cannot,in a proper case, be shown by morning report entries. If the absentee surrenders to his own organization and is restored to duty, or is apprehended and returned to it under guard, respective entries in his organization morning report of "AWOL to duty" or "AWOL to confinement, Post Guardhouse," would be based on personal knowledge and admissible to show return to military control. (See, for example, app. 2, p. 214, infra.)

    1. Service records. The principles applicable to unit records discussed in paragraph 97a, supra, do not apply in general to service records. Entries made in these records are not ordinarily made as to facts which the recording officer himself has a duty to know, but are copies from other

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      original records. Although, for example, all furloughs taken by a soldier are recorded in this service record, the entries therein are copies from the original furlough certificate and are thus secondary evidence, not the original evidence of the fact of the furlough. The entry in the service record could not be introduced into evidence, therefore, to establish that a soldier had taken a furlough, if proper objection was made that the entry was copied from other original sources (par. 117a, MCM). There are, however, two types of entries in service records which may properly be introduced into evidence at a trial. The first of these, an extract copy of a service record duly authenticated by the unit personnel officer and relating to evidence of previous convictions of accused, is both admissible and the usual method of proving previous convictions (par. 117a, MCM, and app. 2, this manual). And, secondly, the final indorsement on the service record is an original entry and commonly used to establish the character of the discharge of an accused,i.e., honorable or dishonorable. (See par. 117a, MCM).

    1. Proof of official writings. The discussion in the subparagraphs above has dealt with the question whether the contents of a document can be considered as evidence of the facts stated therein. Before that question arises, however, the document itself must be properly proved. The method of proving writings is considered in paragraph 98.

  1. METHOD OF PROVING WRITINGS.

    1. In general. There are two general rules for proving the contents of a document or other writing: (1) the original document or writing must be produced and (2) there must be evidence to prove that the document or writing is what it purports to be. There are exception to these rules in the case of public documents or other official records. The general principles will first be discussed and then the exceptions will be dealt with.

    2. Original writing must be produced. Generally when the contents of any written instrument are to be proved at a trial, the instrument itself must be introduced. This is known as the "best evidence" rule. It forbids proof of the contents of any writing by oral testimony or by a copy of the writing. If, for example, it is desired to prove admissions made by an accused in a post card mailed to another soldier, the latter is not permitted to testify as to what was contained in the card. The card itself must be introduced as the best evidence of what it contains. Likewise the recipient of the card would not be permitted to make a copy of it and bring that to court as evidence, even though he would testify that the copy produced was an exact copy of the original. If, however, the original writing has been lost or destroyed or is otherwise not available, its contents may be proved by a copy or by the testimony of witnesses who have seen the writing (116a, MCM). Whenever the contents of a document become material, such as a check in a forgery case, a pay voucher, or a written or signed confession of an accused, the original writing must

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      be produced in court, and introduced into evidence, unless there is a satisfactory showing that it cannot be produced.

    1. Writing must be authenticated. No document can be received in evidence until the party offering it has established its genuineness, i.e., that it is what it purports to be, by testimony of one or more witnesses. If, for example, the prosecution seeks to introduce into evidence a letter written by the accused, it must do more than merely bring the letter into court and offer it into evidence. There must be some proof that the piece of paper in question was written by the accused. The prosecution should have the person who received the letter testify that he received it and identify it. Then the signature should be shown to be that of the accused by the testimony of that witness or other witnesses. The genuineness of the letter is thus established and the letter may be received in evidence. The fact that the writing is an official document, such as a judgment of a court or a company6 morning report, does not dispense with the necessity of its authentication. If a company morning report, for example, is offered in evidence, it must be authenticated by proof that it is in fact the morning report of the particular unit. This may be shown by testimony of the company commander, the first sergeant, or anyone else who knows that fact of his own knowledge. The exception which permits the introduction of authenticated copies of such documents is discussed in d below.

    2. Exceptions in the case of official records. An important exception to the two general rules stated above, i.e., that the original writing must be produced and that its genuineness must be proved by witnesses, exists in the case of public records required to be preserved on file in a public office, including records in the War Department and in any command or unit in the Army. In the case of such records, a copy which has been duly authenticated by the legal custodian of the original may be admitted in evidence in place of the original without first proving that the original has been lost or destroyed, or is otherwise unavailable. This exception is made necessary by the inconvenience to the public business and the impairment of the record system of the War Department and Army units that would result if the original records were removed from their files. A common illustration of the use of this exception is in the case of company morning reports. A morning report may, of course, be proved by producing the original and having a witness testify in court as to its genuineness, as stated in c above. But since it is in official writing, an extract copy duly authenticated by its legal custodian may be introduced into evidence without production of either the original report or a witness to authenticate it. There are three "legal custodians" of the morning report, any one of whom may prepare an extract copy. They are the company or other unit commander preparing the report, the Adjutant General, and the unit personnel officer, all of whom receive duplicate originals of the morning report (AR 345-400, 3 Jan

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      1945) and are charged with their custody. As only three legal custodians exist, it follows that no one else is empowered to authenticate an extract of the morning report.For example, neither the regimental commander, the regimental adjutant, nor any company officer other than its commander may exercise this function, and an extract purportedly authenticated by any of them would be excluded on objection that it was not properly authenticated. Though a failure to object to its introduction on the part of the defense would waive a proper authentication, a trial judge advocate should never anticipate a failure to object on proper grounds, and should make certain that the extract is properly authenticated before it is offered into evidence. In the ordinary case involving absence without leave the company commander will prepare and authenticate an extract from his morning report containing pertinent entries that concern the accused on WD AGO Form 44. This will be attached to the charges and other allied papers at the time they are forwarded and will be introduced into evidence at the trial by the prosecution. The advantages of using a duly authenticated copy in lieu of the original are manifest. Aside from saving the time consumed by a witness in attending a trial, it is often impracticable or even impossible to produce both the original morning report and a witness to authenticate. If, for example, a soldier deserts his organization at a port of embarkation and is not returned to military control until after it has departed, neither the original company record nor any one who could identify it as such would remain. If, however, the company commander had properly prepared and authenticated an extract copy of this report and attached it to the charges or delivered it to the port authorities, this difficulty would not arise. For a specimen form of a duly authenticated extract copy of a morning report, see appendix 2, p. 214, infra.

    1. Mechanics of introducing documentary evidence. In the usual case requiring documentary proof, where the original writing is to be introduced, a witness who can testify as to its genuineness will be called. The document should be marked for identification by the reporter, or, if none, by the trial judge advocate, after which the document will be referred to by the number given, e.g., "Prosecutions Exhibit 1 for Identification." It will be shown to opposing counsel and then to the witness who will be asked to identify it as to what it purports to be. If opposing counsel desired to cross-examine the witness of the question of admissibility before the document is received in evidence, such a request should be granted. The document will then be offered in evidence, and if admitted will be shown or read to the court. It is of utmost importance that the document actually be received in evidence, and the mere marking of it for identification does not serve this purpose. If a duly authenticated extract copy of a morning report or other official record is offered in evidence, no witness need be called. The document is merely marked for identification, shown to opposing counsel, and offered in evidence.

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      All documents received in evidence will be attached to the record of trial when it is prepared. If, however, an original record or other document which should be returned to its source is received in evidence, the party introducing the record should request permission of the court to withdraw it and substitute a suitable copy certified as such by the trial judge advocate, so as to permit the return of the original (par. 75a, MCM).

  1. IMPEACHMENT OF WITNESS.

    1. In general. A fundamental principle of evidence is that the reputation of a witness as to truth and veracity cannot be shown unless it has been attacked. For example, after a witness testifies, his own side cannot "bolster" his testimony by offering evidence that his general reputation for truth and veracity in his community, organization or station is good. The accused occupies no exceptional status as a witness in this respect and his testimony cannot be enhanced by evidence of his reputation for truth and veracity any more than that of any other witness. Once a witness testifies, however, the opposing side may attack his credibility. The methods of doing so are discussed in the subparagraphs below.

    2. Methods of impeaching witnesses. The various methods of diminishing the credibility of a witness are discussed in paragraph 124b, MCM. There are four methods of impeaching a witness: (1) By showing that the reputation of a witness for truth and veracity in his community is bad. His "community" includes his organization, station, or post. Such evidence must be limited to his reputation in the community, and the personal opinion of a witness as to his character or veracity may not be shown. (2) By showing that the witness has been convicted of a crime which involves moral turpitude or which affects his credibility, as, for example, sodomy (involving moral turpitude) or making a false official statement (affecting credibility). Convictions for other offenses as, for example, a purely military offense such as desertion (AW 58) or willful disobedience (AW 64) are not admissible. Before a conviction may be proved, the witness must first be questioned with reference to it and given an opportunity of denying, admitting, or explaining it. (3) By showing that the witness has previously made a statement inconsistent with his testimony in court. The inconsistent statement must relate to one of the issues in teh case, not to a collateral or subordinate matter. For example, if a witness testified in a trial for robbery that he was in a drugstore drinking a lemonade when the accused came in with a gun in his hand and held up the store, he could not be impeached by showing that before the trial he had stated that he was drinking an ice cream soda at the time the accused entered. He could be impeached, however, by showing that he had earlier stated that at no time die he see the accused with a gun. (4) By showing that the witness was prejudiced or biased for or against the accused, or was a friend or an enemy or related to the accused, etc. Such facts with respect to his personal interest tend to diminish his credibility.

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    1. Evidence of reputation for truth and veracity where witness has been impeached. When the credibility of a witness has been assailed, the side which called the witness may meet the attack by evidence that his general reputation for truth and veracity was good. If, for example, the defense offers evidence to impeach the credibility of a prosecution witness by proof that his general reputation for truth and veracity in his organization was bad, or that he had made prior inconsistent statements, the prosecution may in rebuttal show that his general reputation for truth and veracity in his organization is good (par. 124b, MCM). But such rebuttal evidence is inadmissible unless his credibility as a witness, rather than the truth or accuracy of his particular testimony, is assailed. Although statements made by a witness are flatly contradicted by other witnesses, his reputation for truth cannot be shown until his credibility has been assailed by some recognized method of impeachment discussed in paragraph 99b, supra. If, in every case where witnesses are in direct conflict, proof of their general character could be introduced, the true disputed issues of fact would be lost sight of in a mass of testimony sustaining or impeaching the various witnesses in the case. If, to prove a charge of drunkenness a prosecution witness, A, testifies that accused was staggering and had the odor of alcohol on his breath, and the defense thereafter calls a witness, B, who testifies that accused neither staggered nor smelled of liquor, the prosecution may not show that the general reputation of A for truth and veracity in his organization was good. The attack made by B was upon A's particular testimony, not upon his character or reliability as a witness generally. But if the defense called witness C, who testified that A's general reputation for truth and veracity was bad, the proposed prosecution testimony would be admissible.

    2. Character of accused. It is a fundamental rule that the prosecution may not introduce evidence of the accused's bad moral character or formal misdeeds in proof of the charges on which he is being tried (par. 112b, MCM), since there would be a tendency to find him guilty simply because of his bad record. If, however, the accused testifies under oath as a witness, his credibility is subject to being attacked like that of any other witness. If it is attacked, the defense may show that his reputation for truth and veracity is good, as it may in the case of other witnesses. If the prosecution does not attempt to impeach him, then the defense may not bolster his story by evidence of his reputation for truth. It must be remembered that the prosecution may not impeach his credibility unless he testifies as a witness. If, for example, he remained silent or made an unsworn statement only, his credibility would not be an issue and the prosecution could not attack it. Although the defense may not introduce evidence of the reputation of the accused for truth in order to enhance his credibility as a witness unless the prosecution attempts to impeach him, it may always offer evidence of his general good character and military record to show the probability that he was innocent. Whereas his

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      reputation for truth and veracity would be material only if he testified as a witness, evidence of his good character, such as that he is a good soldier, the he has had a prior honorable discharge, would all indicate the unlikelihood that he had committed the offense charged. If the defence introduces such evidence, the prosecution has the right to introduce evidence in rebuttal. It could, for example, show by another of his former commanders that he was not a good soldier, or that he had at one time received a discharge other than honorable. It must be remembered that only the defense may offer evidence of the accused's general good character originally, and that the prosecution may introduce evidence on the point only by way of rebuttal.

  1. PROOF OF VALUE OF PROPERTY.

    1. In general. In cases involving an offense against property, such as larceny, embezzlement, misappropriation, damage, loss, or wrongful disposition, it is necessary to prove that the property had some value in order to establish the offense. Moreover, in such cases the seriousness of the offense and the amount of punishment that can be imposed are determined by the value of the property in question. For example, larceny of a watch valued at less than $20 carries a maximum confinement of 6 months in a guardhouse, whereas if the watch is shown to be of a value in excess of $50, confinement for 5 years in a penitentiary is authorized. The trial judge advocate must, therefore, offer affirmative and competent evidence of the value of each item of property included in the charges.

    2. Civilian property. The value to be proved is the "market value" of the property, that is what it is worth in the open market at the time of the offense. The court cannot determine the specific market value of any property unless evidence is introduced to prove it, or unless there is a stipulation by both sides as to that value. (See par. 68b, supra, as to stipulations as to value.) Proper evidence of market value is the testimony of someone who, by virtue of his knowledge and experience, knows what that value is. If, for example, the article involved is a second hand watch, a dealer in second hand watches may testify as to his opinion of its value. When called as a witness, the dealer or other expert should first be questioned as to his experience in dealing in articles of the kind involved so that he may qualify as an expert on the subject of their value, after which he will be shown the property, be permitted to examine it if he has not already done so, and then asked to give his opinion of its value at the time the alleged offense was committed. The owner of the property may not testify as to its value unless he can also qualify as an expert witness, nor may the owner be permitted to testify as to any special or peculiar value the property may have for him. Neither the original cost of a second hand article, nor what it will cost to replace it is sufficient to prove its market value. Thus, if a soldier

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      were being tried for stealing a suit of clothes worth $30, the testimony of the owner that he paid $40 for the suit 2 years ago, and that it is still worth that much to him as he could not replace it for $50, is not evidence of the "market value" of the suit. If, however, someone who dealt in second hand clothing and was familiar with its market value testified that the suit was worth $25 at the time of the offense, the court could find that the suit had a value of $25.

    1. Inference of some value from nature of property. Although a court-martial cannot find the specific value of property unless evidence of such value is produced, nevertheless where the character of the property clearly appears in evidence, for instance, if it is exhibited in court, the court, from its own experience, may infer that the property has some value (par. 149g, MCM). Where the prosecution, for example, fails to prove the specific value of a suit of clothes, the court could, despite lack of direct proof, infer that the clothes were of some value. The value inferred in such cases is nearly always Z"some value less than $20."

    2. Value of government issue property. When Government articles issued or used in the military service are involved, as,for example, an Army issue overcoat in serviceable condition, their value is established by reference to a published Government price list (e.g., AR 30-3000, 16 Oct. 1944). The proper procedure is to identify the property as of a type mentioned in a published Army price list, offer evidence of its serviceable condition,then show the price set out in the list. The court may take judicial notice of the published price (par. 125, MCM), that is, it may recognize the existence of the price without formal proof of it.The court should be asked to take judicial notice of the price and the published list should be called to its attention or submitted to it.
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