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process to compel the attendance of witnesses before such court, as is issued by the local courts of criminal jurisdiction in the State, Territory or district where the court is sitting, but has not this power now.
Depositions may be taken and read in evidence under the circumstances named in Article 91.
Procedure. The Articles of War are not specific as to the mode of procedure to be adopted by courts of inquiry, and the question has arisen as to “what rules are to govern the court in those numerous incidents of its constitution and mode of action, concerning which the statute rules do not speak; such as the place and time of sitting, the publicity or not, the admission or exclusion of evidence, the allowance of counsel, the privacy of votes, and sundry matters of practice and procedure.” In answer to this question which Attorney-General Cushing propounded, he himself replies,—“I apprehend there is but one possible answer to these questions, namely, that the court is to be governed by the general principles of military law, applying the analogies of a court-martial where these are applicable, and recurring to adjudged cases, precedents ruled, authoritative legal opinions, and approved books of legal exposition, where there is no pertinent paramount statute rule." ?
This is the rule which has been adopted in practice. The mode of procedure will differ somewhat, depending on the character of the question to be examined into.
For instance, the President may order a court of his own will, to examine into a question where no accusation is made against any person, or where the question of fault is only remotely involved. In this case all attainable evidence would be submitted, the witnesses being examined by the court (or through its recorder) unless the
1 Revised Statutes, S 1202. ; VIII. Opinions Attorney-General.
interest of some party was involved and he demanded to be present. In 1831, such a court was ordered to inquire into the causes and circumstances which led to the burning of Fort Delaware. In 1835, a similar court was instituted to inquire and examine into the failure of the campaigns of that year in Florida against the Seminole Indians, under the command of Major-General Gaines and of Major-General Scott.
Again, a court may be ordered on demand, or by order of the President, to inquire into the nature of some transaction of an officer or soldier.
The accused not only has the right to be present with counsel, but should take advantage of this right. In 1831, Lieut. Thomas failed to attend a court of inquiry appointed to examine into his failure to settle his accounts as a disbursing officer, and was in consequence dismissed by the President.
The better practice would seem to be in this case to allow the recorder to conduct the case for the government, leaving the accused to conduct his defense; the court asking such questions as it may desire, and summoning new witnesses if deemed necessary.
In the case of General Howard, this was the mode adopted. After the testimony was concluded, the accused and the recorder were allowed to address the court. This manner of proceeding seems better than for the court to conduct the examination.
Finally, when a direct accusation is made by an officer against another, the best plan seems to be to allow both the accuser and the accused to be present and conduct the examination; the court summoning such witnesses of both
10. 23, A. G. O., June 7, 1831.
The judge-advocate of the court is required to submit all attainable evidence in the case, in the Articles of War recently proposed.
parties as it deems material. The accuser would then examine his witnesses, followed by any desired cross-examination, re-examination, or questions by the court; the accused would follow in the examination of his witnesses. Both parties should be allowed to make a statement, and the court would then close for deliberation,
In the Court of Inquiry of General Dyer in 1869, this was the practice pursued. The court in their report said, “ The greatest latitude was allowed the accusers to produce both oral and documentary evidence in support of their charges. They were permitted to appear, and to be represented by counsel, several of them were also heard as witnesses in support of the allegations; and it is believed that no evidence offered has been excluded from the consideration of the court which could possibly have shed any light upon the question involved, or which could have affected the decision of the court.” 1
Oaths. The 117th Article requires the members of a court of inquiry to take a prescribed oath, after which an oath is administered to the recorder.?
Witnesses are required to take the same oath which is taken by witnesses before courts-martial."
Challenge. The accused is allowed the right of challenge, for, although an examination by a court of inquiry is not a trial in the strict sense of the word, still its opinions may reflect upon the conduct of an officer, and biased or prejudiced officers should not be allowed to conduct such an examination.
The challenge must be for cause stated to the court, and the court will dispose of such challenges as prescribed in the case of courts-martial.
Jurisdiction. Courts of inquiry cannot take cognizance of any case save upon specific orders from the proper authority. The same court may investigate by authority any number of cases. It must be organized, however, in each case, and render its report separately in each.
1 G. 0. 51, A. G. O., May 15, 1869. ? See Chapter VIII, p.
3 Ibid, p.
Opinion when Given. A court of inquiry shall not give an opinion on the merits of the case inquired of, unless specially ordered to do so. The order convening the court should therefore expressly state whether the court shall give an opinion upon the merits of the case or not. If not required to give such opinion, it simply reports the facts ascertained by evidence. A simple submission of the record and testimony in the latter case, however, is not deemed sufficient; the conclusions of the court as deduced from the evidence must be set forth.
Hours of Sitting. The limitation as to hours of sitting, imposed by the Articles of War on courts-martial, does not apply to courts of inquiry.
Statute of Limitation, The two years limitation does not apply to investigations by courts of inquiry. On this point Attorney-General Cushing says,—“ Courts of inquiry are not limited in the terms of the Article of War; it is well settled that they are not limited by construction in Great Britain; the more general conclusion has been the same in this country; and that conclusion seems to me consonant with the general principles of law, and especially convenient in a constitutional government like the United States.:
Open or Closed Court. Courts of inquiry are inherently close courts, to which defendants generally and auditors and spectators occasionally have access, by permission, and not of right.
1 VIII. Opinions Attorney General, Jan. 31, 1857.
9 Art. 119. 349.
The wording of the 118th Article establishes without doubt the right of the accused to be present. Sir Charles Napier wrote that a “court of inquiry ought generally to be a closed court: no one allowed to enter but such individuals as are called for, and who, being privately examined, are sent out.'
Secrecy. There is nothing in the oath of the members or recorder requiring secrecy, but most authorities unite in the opinion that such secrecy as is required of members of courts-martial should be observed.
Record. A record of the proceedings must be kept, and should be made up in the same manner as the record of a court-martial. This must be authenticated by the signatures of the recorder and the president thereof, and delivered to the officer appointing the court, or his successor in office
The original proceedings, after the decision thereon of the reviewing authority, or where the proceedings require the decision of the President, are to be forwarded direct to the Bureau of Military Justice.
Not a Trial. As before stated, the investigation of a court of inquiry is not a trial, and, though an opinion upon the merits may have been given, it could not be pleaded in bar of trial before a court-martial. It is generally a preliminary investigation to aid in determining whether the accused shall be brought before a court-martial for trial. It corresponds somewhat to an investigation by a grand jury in civil cases.
Rules of Evidence. Courts of inquiry do not generally confine themselves to the exact rules of evidence which govern courts-martial; their province is to find out the truth of the matter in question, and they often allow much greater latitude than such courts. As the preceed
1 Clode's Military and Martial Law, p. 174.
See Art. 120