United States v. Jacoby

11 C.M.A. 428, 11 USCMA 428, 29 C.M.R. 244, 1960 CMA LEXIS 296, 1960 WL 4489

• Court: United States Court of Military Appeals
• Decided: May 6, 1960
• Docket: No. 13,515
• Status: Published

Opinions

Opinion of the Court

HOMER FERGUSON, Judge:

Tried by special court-martial, the petitioner was found guilty of several specifications involving the uttering of worthless checks, in violation of Uniform Code of Military Justice, Ar-'1 tide 134, 10 USC § 934. She was sentenced to a bad-conduct discharge, forfeiture of $70.00 per month for four months, confinement as hard labor for four months, and reduction to the grade of basic airman. Intermediate appellate authorities affirmed, and we granted review on the issue whether it was proper to receive in evidence certain depositions taken upon written interrogatories over the accused’s objection that she was thereby denied her constitutional right to be confronted by the witnesses against her.

Three bank officials were permitted to testify at accused’s trial through the medium of written interrogatories. Their testimony identified certain prosecution exhibits as photostatic copies of checks which the accused had presented for payment at their establishments and related the subsequent return of these unpaid instruments.

Prior to the trial, accused’s counsel was notified of the intent of the Government to secure from the witnesses concerned depositions upon written interrogatories. Objection was immediately made to the convening authority on the basis that the accused would thereby be denied her right to confrontation of the witnesses against her, and it was prayed either that the witnesses be produced at the trial or, in the alternative, that an opportunity for confrontation be. afforded by the taking of oral depositions. The convening authority overruled defendant’s objections and authorized the taking of depositions upon written interrogatories with the caveat that additional questions might be submitted “to clarify any points.” Counsel submitted no written cross-interrogatories and unsuccessfully maintained the same objections at the accused’s trial.

The Government argues before us that our decisions in United States v Sutton, 3 USCMA 220, 11 CMR 220, and United States v Parrish, 7 USCMA 337, 22 CMR 127, are dispositive of the granted issue. Appellate defense counsel, however, challenges our previous interpretation of Code, supra, Article 49, 10 USC § 849, on the ground that it causes the statute to conflict with the Sixth Amendment, United States Constitution. Our reexamination of the question convinces us that the accused’s position is meritorious.

Code, supra, Article 49, provides:

“(a) At any time after charges have been signed as provided in section 830 of this title (article 30), any party may take oral or written depositions unless an authority competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such an authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.

“(b) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.

“(d) A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or military board, . . [Emphasis supplied.]

In United States v Sutton, supra, the Court was faced with the same question now before us. A majority, for differing reasons, held that Code, supra, Article 49, might, without denying an accused “military due process,” be properly interpreted as authorizing the taking of depositions upon written interrogatories without the presence of the accused or his counsel. Judge Latimer approached the problem historically and, admitting that' the early Articles of War relating to the taking of depositions required the presence of the accused, expressed the view that subsequent legislation repealed the provision by implication. See Article of War 74, 2 Stat 368, as amended, 12 Stat 736; Article of War 91, Articles of War of 1874; Articles for the Government of the Navy, 1909, Article 68, 35 Stat 622. Each of these statutes, .however, provided for reasonable notice to the affected parties, as does the present Article. He also pointed out that the right of confrontation was essentially one of cross-examination and that denial of the secondary advantage of physically facing one’s accusers “is a penalty which Congress has said .. . . [the accused] must pay because of the limitations inherent in the military system.” United States v Sutton, supra, at page 226. The late Judge Brosman concurred generally in Judge Latimer’s opinion but added a separate exposition of his belief that military use of depositions was an exception to the command of the Sixth Amendment. He did not seek, however, to construe the Constitution in light of the requirement, contemporaneous with its adoption, that an accused be present during the taking of interrogatories. Chief Judge Quinn dissented on the basis that the taking of depositions upon written - interrogatories without the physical confrontation of the accused by the witness denied the former’s right “to be confronted with the witnesses against him.” Amendment VI, United States Constitution; United States v Sutton, supra, at page 231.

In United States v Parrish, supra, the author of the present opinion chose, out of respect to the former holdings of this Court, to adopt Judge Latimer’s rationale in United States v Sutton, supra, and continue the interpretation of Code, supra, Article 49, there set forth. Critical re-examination of the problem in the light of the Constitution convinces me that we erred in so giving effect to the doctrine of stare decisis. While I have continually supported the application of that rule in military law, see my separate opinion in United States v Hickman, 10 USCMA 568, 28 CMR 134, it should never be applied in order to perpetuate a mistaken view. Candler v Rose, 80 F2d 407 (CA 5th Cir) (1935); Helvering v Hallock, 309 US 106, 60 S Ct 444, 84 L ed 604 (1940). Indeed, it is our duty to overrule and modify decisions which are erroneous, although there has been no legislative change in the law as originally construed. Cosentino v International Longshoremen’s Ass’n, Etc., 126 F Supp 420 (D Puerto Rico) (1954). See, generally, 21 CJS, Courts, § 193.

While the dissenting Judge apparently disagrees, see United States v Sutton, supra, and United States v Clay, 1 USCMA 74, 1 CMR 74, it is apparent that the protections in the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces. Burns v Wilson, 346 US 137, 73 S Ct 1045, 97 L ed 1508 (1953); Shapiro v United States, 107 Ct Cl 650, 69 F Supp 205 (1947); United States v Hiatt, 141 F 2d 664 (CA 3d Cir) (1944). Moreover, it is equally clear that the Sixth Amendment guarantees the accused the right personally to confront the witnesses against him. Mattox v United States, 156 US 237, 15 S Ct 337, 39 L ed 409 (1895); Reynolds v United States, 98 US 145, 25 L ed 244 (1879); Motes v United States, 178 US 458, 20 S Ct 993, 44 L ed 1150 (1900).

Mattox v United States, supra, involved the admission in the defendant’s trial of the reporter’s record of testimony by certain witnesses, since deceased, who had testified at a former hearing of the same case. In construing the Sixth Amendment, the Supreme Court stated at pages 242-244:

“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony tohether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, hoiuever beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. . . .

“The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the toiiness face to face, and of subjecting him to the ordeal of a cross-examination. This, the law says, he shall under no circumstances be deprived of, and many of the very cases which hold testimony such as this to be admissible also hold that not the substance of his testimony only, but the very words of the witness, shall be proven.” [Emphasis supplied.]

In Motes v United States, supra, one of a number of co-defendants appeared as a Government witness in the preliminary hearing before a United States Commissioner. By the time of the trial, the witness had disappeared. It was not established that any of the defendants were responsible for the witness’ absence from the trial. In finding that the trial court erred in receiving a stenographic record of the witness’ testimony before the Commissioner, the Supreme Court again invoked the Sixth Amendment, although it clearly appeared there was either cross-examination by the other defendants or the opportunity for it. Mr. Justice Harlan, speaking for the Court, stated, at page 474:

“. . . We are unwilling to hold it to be consistent with the constitutional requirement that an accused shall be confronted with the witnesses against him, to permit the deposition or statement of an absent witness taken at an examining trial to be read at the final trial, when it does not appear that the witness was absent by the suggestion, connivance, or procurement of the accused, but does appear that his absence was due to the negligence of the prosecution.” [Emphasis supplied.]

Dean Wigmore’s view, however, supports to some extent our decision in United States v Sutton, supra. Thus, he urges that the principal requirement of confrontation is the opportunity to cross-examine and that the secondary advantage of the witness’ presence is not a constitutional requirement. Wigmore, Evidence, 3d ed, §§ 1395-1397. Authority for his position is not found in the decided Federal cases, and, indeed, United States v Mattox, supra, and United States v Motes, supra, are contrary to ' his teachings. Other text writers seemingly adopt the position that the accused’s presence, as well as the opportunity to cross-examine, must be shown. Wharton, Criminal Evidence, 12th ed, §§470, 472; Greenleaf, Evidence, 16th ed, page 16; Jones, The Law of Evidence, 5th ed, § 689. Wigmore, regardless of views on physical confrontation, insists that the right to cross-examination be fully preserved. This, he states, cannot be had “except by the direct and personal putting of questions and obtaining immediate answers.” (Emphasis supplied.) Wigmore, supra, § 1395.

Common sense supports the Dean’s view. Cross-examination necessarily depends as much upon the witness’ answers to the questions put by the pros-cution as it does upon the interrogatories. When the deposition is taken in the absence of counsel and the accused, cross-interrogatories must be framed on the basis of the prosecution’s inquiries and the unsatisfactory substitute of letters or pretrial affidavits from the witness. Other than the dubious advantage of submitting additional cross-interrogatories, there is no way by which the defense counsel may accurately take advantage of the witness’ direct replies and frame his questions to minimize the damaging effect of the Government’s evidence. Moreover, in putting his cross-interrogatories blindly, counsel runs the risk of impaling his client upon defense-sought answers. In short, cross-examination is a two-edged sword and he who would serve his client must be afforded the opportunity personally to question the witness if this great right is adequately to be preserved.

Bearing in mind the foregoing authorities, we turn to an examination of Congressional intent in enacting Code, supra, Article 49. When the question of the use of depositions on behalf of the prosecution was raised before the House Armed Services Committee, the following colloquy occurred:

“Mr. FINN. Well, as I understand the present Federal program, the accused or defendant can have depositions introduced in his behalf but the prosecution cannot. This as drawn, sir, is contrary to every concept of Anglo-Saxon and American justice as to the right of the person accused to the confrontation of the witness against him.

“Mr. ELSTON. Well, we have a law in the State of Ohio, for example, that permits the State to take depositions, but means and opportunity must be afforded to the defendant and his counsel to be present at the talcing of those depositions.

“Mr. BROOKS. This is what we call depositions be ne esse.” [Emphasis supplied.] [Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, pages 696, 697.]

While the comments of the Committee members concerning the construction to be put upon the Article are not entirely clear, they indicate to some extent a belief that accused’s presence was required and offer a sufficient foundation for our conclusion that the statute demands the opportunity for confrontation of the accused and the witness at the taking of depositions. It is our duty to interpret an act of the Congress so that it accords with the Constitution if that construction is at all possible. Crowell v Benson, 285 US 22, 52 S Ct 285, 76 L ed 598 (1932); United States v Shaughnessy, 234 F 2d 715 (CA 2d Cir) (1955); Karseal Corporation v Richfield Oil Corporation, 221 F 2d 358 (CA 9th Cir) (1955). Opportunity for the accused’s presence with counsel at the taking of depositions substantially affords him the right of confrontation guaranteed by the Sixth Amendment. While Mattox v United States, supra, speaks of the witness’ presence at the trial, i.e., face to face with the jury, it also recognizes that “general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case.” Mattox v United States, supra, page 243; cf. Motes v United States, supra. That the exigencies of the military service frequently prohibit the appearance of a military witness or a civilian far removed from the place of trial is too well known to require documentation. Moreover, this was recognized by the Articles of War in effect before and immediately after the adoption of the Constitution. Hence, it was provided in Article 10, Articles of War, 1786, that depositions might be taken in cases not capital, “provided the prosecutor and person accused are present at the taking of the same.” Similarly, Article 74, Articles of War, 1806, permitted the taking of depositions “provided the prosecutor and person accused are present at the taking of the same, or are duly notified thereof.” See Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, pages 973, 983. The existence of such legislation at the time of the adoption of the Sixth Amendment is strong evidence that a military accused’s right of confrontation is satified by the opportunity to be present at the taking of depositions. Indeed, it has been said that the contemporaneous legislative exposition of the Constitution by its framers fixes the construction of its provisions. Myers v United States, 272 US 52, 47 S Ct 21, 71 L ed 160 (1926).

The dissenting Judge suggests that this requirement was later eliminated by Congress from the statute. While the matter is unimportant in view of our belief that the earlier acts are more relevant in construing the intent of the drafters of the Constitution, it is distinctly arguable that requirement of the presence of the accused was continued by the legislative provision for reasonable notice to him of the time and place of the taking of the depositions. Surely, there is little reason to give notice concerning these facts, if depositions are to be taken upon written interrogatories, with the accused having no right beyond the submission of cross-interrogatories. These are prepared locally and unless it was intended that he be present, he would have no interest in when and where the questions would be put to the deponent. Be that as it may, the historical development of military practice and subsequent enactments of Congress have little bearing on the contemporaneous meaning of the Sixth Amendment.

We conclude, therefore, that the interpretation which we placed upon Code, supra, Article 49, in United States v Sutton and United States v Parrish, both supra, so lends itself to conflict with the Sixth Amendment that those cases should be overruled. The correct and constitutional construction of the Article in question requires that the accused be afforded the opportunity (although he may choose knowingly to waive it thereafter) to be present with his counsel at the taking of written depositions. We so hold.

The board of review is reversed and the record of trial is returned to The Judge Advocate General, United States Air Force. A rehearing may be ordered before another court-martial.

■Chief judge QUINN concurs.