United States v. Endsley

LatimeR, Judge

(concurring in the result):

I concur in the result.

While conceding that the instant case does not fall within the doctrine announced in United States v Allinder, 9 USCMA 575, 26 CMR 355, my associates seem quite willing to assume error and criticize a provision of the Manual for Courts-Martial, United States, 1951. I can see no sound basis for their assumption or their criticism and find that my views to the contrary are well supported by the Federal civilian authorities. Significantly, on this score it is interesting to note that the Court does not cite a single case to support the position taken.

Since the rationale of Allinder has been interjected into this case, it might be well to indicate the distance by which the advice here “falls short” of being improper comment. In that regard, I simply state that a court-martial would not necessarily or reasonably take the advice of the law officer as a comment on the accused’s failure to testify. In my opinion, the members would do no more than to construe the comment as explanatory of the rights any accused person has when standing trial for an alleged offense. See Morrison v United States, 6 F 2d 809 (CA 8th Cir) (1925).

While somewhat obscured by discussion of appropriateness, necessity, and good practice, the assumption of error by my associates is based upon a conclusion that the procedure in the case at bar “might result in emphasizing the accused’s failure to testify in the minds of the court-martial members.” This reasoning has been the basis of similar contentions in a number of Federal cases where the judge’s instructions contained some reference to the accused’s right of refusal to testify, and in such cases these analogous assertions have been almost uniformly rejected.

It is worthwhile to note that the statutory authority for the competency of an accused to testify in his own behalf and for the principle that no presumption shall arise against him for a failure to take the witness stand, was not expressly included in the Uniform Code of Military Justice. The Hearings before House Committee on Armed Services, 81st Congress, 1st Session, on H. R. 2498, page 984; House Report No. 491, 81st Congress, 1st Session; Hearings before Senate Committee on Armed Services, 81st Congress, 1st Session, on H. R. 4080 and S. 857, page 109; and Senate Report No. 486, 81st Congress, 1st Session, makes it clear that such a provision was considered unnecessary in light of Title 18 USC § 3481, which provides:

Ҥ 3481. Competency of accused.
“In trial of all persons charged with the commission of offenses against the United States and in all proceedings in courts martial and courts of inquiry in any State, District, Possession or Territory, the person charged shall, at his own request, be a competent witness. His failure to make such request shall not create any presumption against him. June 25, 1948, c 645, 62 Stat 833.”

This language was adopted in substantial form from Title 28 USC (1940 ed) § 632 (March 16, 1878, ch 37, 20 Stat 30). For this reason the decisions of a number of Federal courts based on these statutes are particularly helpful in deciding the present question.

In the case of Kowalchuk v United States, 176 F 2d 873 (CA 6th Cir) (1949), the court held:

“ . . . The trial court may properly call attention to the failure of a defendant to testify, in connection with an instruction that the fact that he has not'so testified is not to be considered against him.”

*259Again, in Chadwick v United States, 117 F 2d 902 (CA 5th Cir) (1941), where the trial court’s instruction that the defendants’ failure to testify could not be considered as a circumstance against them was asserted as error, the court stated:

. . The instruction was in accordance with the statute, 28 USCA § 632, and was altogether favorable to the appellants. Furthermore, it has been held recently that failure to give such an instruction upon request constitutes reversible error. It is certain, therefore, that it was not error for the court to give the instruction of its own motion.” [Citing Bruno v United States, 308 US 287, 60 S Ct 198, 84 L ed 257; Kreuzer v United States, 254 Fed 34 (CA 8th Cir) (1919); Hanish v United States, 227 Fed 584 (CA7th Cir) (1915).]

In this regard see also: Robilio v United States, 259 Fed 101 (CA 6th Cir) (1919); United States v Brookman, 1 F 2d 528 (D Minn) (1924); Becher v United States, 5 F 2d 45 (CA 2d Cir) (1924); Swensel v United States, 22 F 2d 280 (CA 2d Cir) (1927); Affronti v United States, 145 F 2d 3 (CA 8th Cir) (1944); Poliafico v United States, 237 F 2d 97 (CA 6th Cir) (1956). The general rule to be drawn from the above-cited cases is set forth in 53 Am Jur, Trial, § 699, where it is stated:

. . . Thus, it is generally considered to be proper for a court of its own motion to charge the jury in the language of the statute, or without referring to the statute, that the defendant in a criminal action cannot be compelled to be a witness against himself, and that if he does not claim the right to be sworn and does not testify, that fact does not create any presumption against him and must not be used by the jury to his prejudice. At least, it is held, th e instruction is favorable to the defendant so that he may not complain thereof on appeal.” [Emphasis supplied.]

In all of the cited cases, it can be said that the judge’s instruction called to the attention of the jury the defendant’s failure to testify, and it is important to remember that in practically every instance an objection to the instruction was taken at the close of trial and after the defendant’s failure to testify had occurred. Manifestly, when the principle is embodied in an instruction, if it is erroneous, the possibility of prejudice is as great, if not greater, than in the procedural pattern presently before us where the asserted error was contained in the law officer’s advice to the accused.

One further statement in the Court’s opinion prompts comment, namely, the criticism of the provision contained in paragraph 53/7 of the Manual, supra, which authorizes the explanation of his rights to an accused in open court. Although it may be possible to conjure up some unusual factual situation where it might be better practice to keep the court uninformed on evidentiary matters, trials should be orderly and court members should not have their attention diverted from their principal objective by secret huddles around the bench or by repeated shufflings in and out of court. Therefore, unless prejudice is likely to follow from what is placed before the court — and parenthetically I note that in this instance my brothers find none — I do not support a practice which requires law officers to interrupt the ordinary trial procedure by either calling counsel to the bench and whispering to them or excusing court members. Particularly is that true when the court must ultimately know and should be instructed on the subject under discussion. Court members have the power to see and hear, and they are cognizant of the fact that the accused has remained silent. It is only natural for them to believe that silence on the part of one who is charged with an offense is indicative of a guilty conscience. It is for that reason that the law, when it made an accused a competent witness, protected him by the proviso that, if he failed to take advantage of the privilege, the triers of fact should not draw a presumption against him. But the fact remains that unless court members are informed of the law and told that no inference of guilt may be drawn from an accused’s failure to testify, they are apt to place great significance on his silence. Therefore, unless the principle is called to the court-*260martial members’ attention by the method employed in this ease or by an instruction cautioning them, there is a strong possibility that the accused will be harmed.

Finally, I must inquire how the suggestions of my associates will be applied in a special court-martial where the president of the court must carry out his duties in the presence of the other court members.

For the reasons stated herein, I find no error in the present case and, therefore, concur in affirming the decision of the board of review.