Page images

act as judge-advocate of all courts under his command, although the same officer might be specially detailed on every court.

Duties of the Judge-Advocate. The judge-advocate has some duties preliminary to the trial. When it is decided to try a person, the charges are sent to the judgeadvocate with directions to bring the party to trial before the court-martial of which he is appointed judgeadvocate.

In the case of an officer, a copy of the charges must be furnished him within eight days after his arrest; and, though not required by the Articles of War, such copy should be furnished by the judge-advocate to a soldier before calling upon him to plead ; and this in time to allow him properly to defend himself. In lieu of a copy, it is customary, especially where the offender is to be tried by one of the minor courts, for the judge-advocate to read over to the accused, sometime previous to the trial, the charges and specifications. At the same time he is asked how he intends pleading, and whether he desires any witnesses for his defense. If he should still desire a copy of the charges, it should be furnished him.

By finding from the accused how he intends pleading, the judge-advocate is often saved the trouble and expense of summoning unnecessary witnesses. An accused, however, could not be forced to divulge his plea.

Judge-advocates should exercise great care in advising prisoners how to plead.

Summoning Witnesses. The accused furnishes the judge-advocate with a list of his witnesses to enable him to summon them. As this knowledge might give the prosecution some advantages, the question naturally arises as to whether the accused can require the list of witnesses for the prosecution. The accepted rule is that it is not necessary that the copy of charges furnished the accused should contain a list of the witnesses, nor can the accused demand as a right such list. The only reason the judgeadvocate can call for the list for the defense is to enable him to summon them. Unless there is danger of the witnesses being tampered with, there seems no good reason why such list should not be furnished the accused on application.

The judge-advocate must exercise a discretion in summoning witnesses, especially where they reside away from the post, and ordinarily summon them before the assembling of the court in order to prevent delays. He is not to summon any witness at the expense of the United States, nor any officer of the army, without the order of the court, unless satisfied that his testimony is material and necessary to the ends of justice.

The same nicety of form is not necessary in the summoning of military as in the case of civilian witnesses. Great care is needed in the latter case, and, to prevent the evil results that might arise from incorrect forms, it is suggested that the form given in the Appendix be strictly adhered to.

By an order from the War Department it is strictly enjoined upon judge-advocates of courts-martial, who may find it necessary to subpoena witnesses, to send the subpæna whenever it is possible through the proper military channels. If to an officer residing within the department, it should be sent to him through the post commander ; if to a soldier, to his post commander. If the party resides without the department, it should be sent through the department commander. The scope of this order was in 1872 enlarged so as to include in its provisions all courts, boards, or other tribunals, civil and military, competent to

1 Regulations, par. 890.

• G. O. 97, A. G. O., Dec. 12, 1866.

issue subpoenas to witnesses; and, hereafter, orders from competent military authority will be required for the movement of all officers and enlisted men, summoned to leave their posts as witnesses before such tribunals in accordance with the requirements of the said General Order No. 97 of 1866.1

For securing the attendance of civilian witnesses duplicate subpoenas should be sent to the nearest post commander for service, if the witness resides within the department, or else to department headquarters, unless otherwise specially directed by the department commander.

Service is made under the laws of the United States by delivering the subpoena to the witness; and proof of service by returning the duplicate original to the judgeadvocate with an affidavit endorsed to the effect that, on such a day, date, and place, the affiant personally served the within named witness, by delivering to him a subpoena of which the within is a complete copy.

Any military person, or civilian of competent discretion, can serve the subpoena, but service by mail is not a legal service.

If the judge-advocate declines to summon as a witness an officer of the army, because not satisfied that it is

proper to do so under paragraph 890 of the Regulations, the court may still order the summons to be issued, if it disagrees with the judge-advocate. 3 & 4

Writs of Attachment. The law provides for the failure of witnesses to appear upon being duly summoned. It authorizes every judge-advocate of a court-martial to issue like process to compel witnesses to appear and testify,

1 G. 0. 59, A. G. O., June 28, 1872. ? See Gardner's Practical Forms, p. 40. Opinions J. A, G., p. 390.

4 Courts martial are expresely authorized to summon of their own motion and at any stage of the proceedings any witness whose testimony appears material to the case, by the Articles of War recently proposed.


which courts of criminal jurisdiction within the State, Territory, or district where such military courts shall be ordered to sit, may lawfully issue.1 & 2

The Attorney-General has decided, that the power to issue such process includes also the power to execute it through some officer who shall be especially charged with its execution.

General Orders from the War Department present the mode to be pursued. Judge-advocates of military courts who may hereafter issue such process to compel the attendance, as witnesses, of persons not in the military service, shall formally direct the same, by name, to some military officer who shall be designated by the department commander as available for the purpose, and the nearest military commander will thereupon furnish a sufficient force for the execution of the process whenever such force shall be actually required. It will be noted, however, that whereas a process of attachment can only be enforced as herein directed, the preliminary summons or subpoena may be served by any person whatever.

Every officer serving such process of attachment should see that it is technically accurate, otherwise he lays himself liable in arresting a civilian witness to a suit in damages for trespass.

It should properly contain:

1st. A copy of the order convening the court. 2d. A copy of the charges. 3d. A copy of the subpoena with proof of service. 4th. It should show that the party has failed and neglected to appear; that he is a necessary and material witness; and that no just excuse has been offered for his neglect. 1 Rev. Stat. S 1202.

This power is given to courts-martial and military commissions instead of to judge-advocates, in the Articles of War recently proposed. 3 XII. Opinions Att'y Gen'l, p. 501. 4 G. 0. 93, A. G. O., 1868.

The court must judge whether the particular case justifies the resort to this process.

Subordinate military courts cannot compel the attend ance of civilian witnesses unless a judge-advocate is appointed for such court.

The service of a subpoena upon a witness ought always to be made in reasonable time before trial. In the United States the reasonableness of the time is generally fixed by statute, requiring an allowance of one day for every certain number of miles distance from the witness's residence to the place of trial; and this is usually twenty miles. But at least one day's notice is deemed necessary, however inconsiderable the distance may be.?

In cases before courts-martial a witness present in the court-room can be required to testify though he has not been summoned.

It is not necessary in a subpoena issued from a courtmartial that there should be a tender of fees. Citizen witnesses, duly summoned, however, are paid the actual cost of their transportation or travel fare to and from the court, together with the per diem for the time necessarily occupied in attendance upon the court, and in making the journeys. The judge-advocate should give a certificate in duplicate of the fact of such attendance.

Judge-advocates of courts-martial, courts of inquiry, and military commissions will insert the names in full in all certificates of attendance given to persons summoned as witnesses, or employed as interpreters, and, in the case of an officer, his rank and regiment.

Rooms and Stationery. The judge-advocate should sufficiently early apply to the post quartermaster for an

1 Opinions J. A. G., March 15, 1873, January 25, 1876.

Greenleaf on Evidence, Vol. I., p. 373. * See G. 0. 97, A. G. O., September 8, 1876. * For form, see Appendix. 5 G. O, 154, A. G. O., Oct. 20, 1865.


« PreviousContinue »