9 C.M.A. 84 | United States Court of Military Appeals | 1958
Opinion of the Court
This appeal presents the narrow question of whether the staff judge advocate’s review was rendered inadequate by reason of the fact that it failed to apprise the convening authority of the results of two lie detector tests which were administered to the accused. For the reasons hereinafter stated, we hold that under the circumstances here present the review was not rendered inadequate by such omission.
In September 1956, the accused was convicted by a general court-martial
In the case of United States v Fields, 9 USCMA 70, 25 CMR 332, we defined the areas in which the convening authority’s power extends over findings and sentence. We said that while acting in his discretionary area, he may disapprove a court-martial’s findings and sentence or any part thereof for any reason. Article 61 of the Code, supra, 10 USC § 861. However, in acting to approve the court-martial’s findings, he is bound by the record of trial. United States v Duffy, 3 USCMA 20, 11 CMR 20. The appellant, as well as the Government, relies heavily upon our decision in United States v Massey, 5 USCMA 514, 18 CMR 138. The circumstances presented in that case are similar to a certain extent to those found in the case at bar. There, the staff judge advocate was in possession of the results of a lie detector and sodium pentothal test, which results were entirely favorable to the accused on the issue of his guilt or innocence of the offenses charged. In his post-trial review, the staff judge advocate discussed the results of these tests but advised the convening authority that he could not consider them in exercising his discretion to set aside the court-martial’s findings of guilt. We held that such advice was erroneous. Although recognizing the “fallibility” of lie detector and truth serum tests and their general exclusion by civilian and military courts alike, we could see “no basis whatever for the suggestion that a convening authority, who may lawfully disapprove findings or sentence ‘for any reason,’ cannot permissibly utilize ‘lie detector’ or ‘truth serum’ results in determining on a course of action.” The precise question for our consideration, therefore, is whether there is imposed upon a staff judge advocate the affirmative duty to consider in the review and invite the convening authority’s attention to matters derived from sources outside the record of trial which are favorable to an accused. We cannot conceive of the imposition of such a duty.
It is entirely a matter within the discretion of the staff judge advocate whether or not to include in the review a discussion of matters obtained from sources outside the record which may be considered favorable to an accused. To hold otherwise, would be to impose an insufferable burden upon a staff
There is still another equally compelling reason why the appellant’s contention cannot prevail. It would be virtually impossible for this Court to circumscribe with any degree of definiteness the responsibility of the staff judge advocate in this area. A few examples will sufficiently illustrate the absurd lengths to which adoption of such a principle could lead. What if a staff judge advocate had overheard by peradventure or had received through anonymous channels information which, though favorable to an accused, would hardly ascend to the level of hearsay. Should such matters be brought to the commander’s attention? Again, suppose that the information received by the staff judge advocate is, as in the instant case, both favorable and unfavorable to the accused. Should the convening authority only be informed of the favorable information ? Proceeding one step further, suppose that the information does not come directly to the staff judge advocate’s attention, but that he is told where such information can be obtained. Is the staff judge advocate under a duty to independently investigate the source of such information and then subsequently bring it to the attention of the convening authority? We believe the answers to these questions are too patent to require exposition. Of course there is nothing to prevent defense counsel from submitting a post-trial brief setting forth such matters as he feels should be considered in accused’s behalf on review. In fact, Article 38(c) of the Code, supra, 10 USC § 838, expressly provides for such procedure. See also paragraph 48j(2), Manual for Court-Martial, United States, 1951. In speaking of this codal provision, as it relates to factors having relevance on the question of sentence, we said in United States v Lanford, 6 USCMA 371, 20 CMR 87, that:
“The Code does not describe the nature of the matters which may be noted in defense counsel’s post-trial brief. Neither does it directly indicate to whom the brief should be forwarded. However, it is clearly infei'able that the brief may include factors relating to the sentence and that it is to be forwarded to the convening authority.”
If defense counsel in the instant case had desired that the results of the lie detector tests be considered by the convening authority, he should have submitted them in a brief. His failure to do so, however, does not shift the burden of doing so to the staff judge advocate.
In interpreting our holding in this case, we are not to be understood as limiting in any manner the right of a staff judge advocate in the sound exercise of his discretion from bringing matter favorable to an accused to the convening authority’s attention. All we hold is that there is no duty imposed upon him by law to do so. There may well be situations where the nature of the matters which have come to the staff judge advocate’s attention are of such quantity and quality and from such
The decision of the board of review is affirmed.