124. GENERAL RULES. The rules stated in this chapter are applicable in cases before courts-martial, including summary courts-martial. So far as not otherwise prescribed in this manual, the rules of evidence generally recognized in the trial of criminal cases in the district courts of the United States and, when not inconsistent with such rules, at common law will be applied by courtsmartial.

On interlocutory matters relating to the propriety of proceeding with the trial, as when a continuance is requested, the court may in its discretion relax the rules of evidence to the extent of receiving affidavits, certificates of military and civil officers, and other writings of similar apparent authenticity and reliability, such as the certificate of a physician as to the illness of a witness, unless on objection to a particular writing it is made to appear that the relaxation might injuriously affect the substantial rights of an accused or the interests of the Government.

Evidence to be admissible must be material and relevant. Evidence is not material when the fact which it tends to prove is not part of the issues in the case. Evidence is not relevant when, though the fact which it is intended to prove thereby is material to the issue of guilt or innocence or to some collateral issue, such as the credibility of a witness, yet the evidence itself is too remote or far-fetched to have any probative value for that purpose. If evidence is held immaterial or irrelevant to the issue of guilt or innocence, but is received in extenuation, it must be considered solely in connection with the measure of punishment in the event of conviction.

Evidence, apparently irrelevant, may be admitted provisionally upon a statement of the party offering it that other facts later to be proved will show its relevancy, but such evidence should afterward be excluded if its relevancy is not ultimately shown. However, it is generally more desirable to require the party offering the evidence first to prove the facts showing its relevancy. For that purpose he may be permitted temporarily to withdraw a witness or witnesses and to recall one or more witnesses who have been examined.

In the exercise of a sound discretion the court may limit the number of witnesses called by either side to testify to the same matter if, upon an offer of proof

(140c) or otherwise, it appears that the testimony of any excluded witness would be merely cumulative. This rule applies in particular to character witnesses.

125. PRESUMPTIONS; DIRECT AND

CIRCUMSTANTIAL EVIDENCE-a. Presumptions. Presumptions or inferences may be considered as falling into two classes: First, those which arise without the introduction of any evidence; and second, those which can not arise until after some evidence has been introduced.

In the first class are those presumptions which relate to facts the existence of which courts are bound to presume in the absence of proof to the contrary. An accused person is presumed to be innocent until his guilt is proved beyond a reasonable doubt; an accused is presumed to have been sane at the time of the offense charged until a reasonable doubt of his sanity at the time appears from the evidence; and, in the absence of proof to the contrary, a woman's chastity is presumed.

In the second class are those presumptions which relate to facts that a court may infer, if it deems the inference warranted by all the circumstances, from the existence of other facts which must be first established. In this connection see 125b (Circumstantial Evidence). Examples of this second class of presumptions are:

A sane person is presumed to have intended the natural and probable consequences of acts which he is shown to have committed.

Persons shown to be acting as public officers are presumed to be legally in office and to perform their duties properly.

Malice may be presumed when a homicide is caused by the use of a deadly weapon in a manner likely to result in death.

A condition shown to have existed at one time is presumed, in the absence of any indication to the contrary, to have continued. In the absence of a showing to the contrary, it is presumed that the residence of a person remains unchanged, and that an office holder continues in office until the end of the term for which appointed or elected. Also, the circumstances of a particular case may give rise to a permissible inference that a condition shown to have existed at one time existed for some prior period of time. For example, proof that shortly

after a collision the lights on a vehicle were not burning, although in working order at the time, would support an inference that the lights had not been turned on at the time of the collision.

Proof that a letter correctly addressed and properly stamped or franked was deposited in the mail raises a presumption of delivery to the addressee, and a similar presumption arises with regard to telegrams regularly filed with a telegraph company for transmission.

Identity of name raises a presumption of identity of person. The strength of this presumption will depend upon how common the name is and upon other circumstances.

Proof that a person was in possession of recently stolen property may raise a presumption that the person stole it, and, if it is shown that the property was stolen from a certain place, at a certain time and under certain circumstances, that the person stole it at the particular place and time and under the circumstances shown.

It may be presumed that one who has assumed the custodianship of the property of another has stolen such property if he does not or can not account for or deliver it at the time an accounting or delivery is required of him.

The weight to be given presumptions of the second class necessarily depends upon all the circumstances attending the proved facts which give rise to the presumptions. For this reason the making and weighing of such presumptions and the consideration of evidence tending to overcome them call for the application by members of courts of their common sense and general knowledge of human nature and the ordinary affairs of life.

The force of any inference of fact which may have been raised by the evidence is not necessarily overcome by the introduction of rebutting evidence. The proof as a whole, including any such inference and the presumption of innocence, is to be considered by the court in arriving at its conclusions.

b. Direct and circumstantial evidence-General. If a statement made by a witness or contained in a document is such that if true it would directly prove or disprove a fact in issue, the statement is called direct evidence. If the statement would, if true, directly prove or disprove not a fact in issue but a fact or circumstance from which, either alone or in connection with other facts, a court may, according to the common experience of mankind, reasonably infer the existence or nonexistence of another fact which is in issue, then such a statement is called indirect or circumstantial evidence. For example, on a charge of larceny of a purse, testimony of a witness that he saw the accused take the purse from the overcoat of the owner is direct evidence, and testimony of a witness that he found the purse hidden in the locker of the accused is circumstantial evidence of the taking.

Circumstantial evidence is not resorted to because of the absence of direct evidence. It is admissible even when there is direct evidence. There is no general rule for contrasting the weight of circumstantial and direct evidence. The assertion of an eyewitness who is absolutely trustworthy in every respect may be more convincing than the contrary inferences that appear probable from circumstances. Conversely, one or more circumstances may be more convincing than a plausible witness.

Testimonial knowledge. That he should speak only of what he has learned through his senses is a primary qualification of a witness. For instance, a witness might testify that while on sentry post at night he heard three shots and saw two persons running in the distance; but he should not proceed further and state that the shots killed a mule and that the accused was one of the persons running if his knowledge as to the effect of the shots and the identity of the persons running away is based on rumors and gossip heard the following day.

Opinion evidence. It is a general rule that a witness must state facts and not his opinions or conclusions. However, a witness may express an opinion on matters within the common observation and experience of men, such as to the speed of an automobile or as to whether a certain person was drunk at a certain time, or as to whether a voice heard was that of a man, woman, or child. As to the expression of opinion with respect to general mental condition, see 112c.

An expert witness that is, one who is skilled in some art, trade, profession or science or who has knowledge and experience in relation to matters which are not generally within the knowledge of men of common education and experience-may express an opinion on a state

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of facts which is within his specialty and which is involved in the inquiry. Prior to being permitted to express his opinion, it should be shown that he is an expert in the specialty. Proof of such qualification may be waived expressly or by failure to object to the reception in evidence of testimony of an expert nature.

Expert testimony may be adduced in several ways. An expert witness may be asked to state his relevant opinion, when based on his personal observation or on an examination or study conducted by him, without first specifying hypothetically in the question the data on which the opinion is to be based. He may be required on direct or cross-examination to specify the data upon which his opinion is based, but if in the course of relating the data he gives testimony which would be inadmissible on the issue of guilt or innocence, such testimony is not to be considered upon that issue. An expert witness may also be asked to express his opinion upon a hypothetical question (a question supposing a certain state of facts to exist) if the question is based on facts in evidence at the time the question is asked, or, if the court so permits in the exercise of a sound discretion, on facts which are later to be received in evidence. If evidence of such facts is not later introduced, the opinion based on those facts should be excluded.

Bad character of the accused. The general and fundamental rule is that the doing of an act may not be evidenced by showing the bad moral character of the accused or his former misdeeds as a basis for an inference of guilt. This forbids any reference to his bad character in any form, either by general repute or by personal opinions of individuals who know him. It also forbids any reference in the evidence to former specific offenses or other acts of misconduct, whether he has or has not been tried and convicted of their commission.

There are certain exceptions to this rule, among them the following:

In order to show the probability of his innocence, the accused may introduce evidence of his own good character, including evidence of his military record and standing and evidence of his general reputation as a moral well-conducted person and law-abiding citizen. However, if the accused desires to introduce evidence as to some specific trait of character, such evidence must have a reasonable tendency to show that it was un

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likely that he committed the particular offense charged. For example, evidence of reputation for peacefulness would be admissible in a prosecution for any offense involving violence, but it would be inadmissible in a prosecution for a nonviolent theft. If the accused introduces evidence of his own good character, the prosecution may introduce evidence in rebuttal. The rebutting evidence will be limited by the extent of the character evidence introduced by the accused. Thus, when in a prosecution for theft the accused has limited his proof of good character to evidence of his good reputation for honesty, the prosecution may not introduce evidence of the bad reputation of the accused as to general morality and conduct but will be limited to proof of his bad reputation for honesty. As to means of proving character, see 139b.

If the accused takes the stand as a witness, his credibility may be attacked as in the case of other witnesses. For this purpose it may be shown that his repu-tation for truth and veracity is bad or that he has been convicted of a crime involving moral turpitude or affecting his credibility. See 139b.

Evidence of other acts of the accused, closely connected in point of time and circumstances of commission to the offense for which he is on trial, is admissible if it tends to establish the identity of the accused as the perpetrator of the offense in question, to show the motive or plan of action of the accused, to show his intent or guilty knowledge if intent or guilty knowledge is an element of the offense charged, or to refute his claim that his participation in the offense charged was the result of accident or mistake. Such evidence is admissible even though it tends to establish the commission of an offense not charged. The court should not consider evidence so offered as bearing in any way upon the question of the general moral character of the accused.

The following are illustrations of the rule and the exceptions:

If two adjoining buildings are burglarized on the same night and under similar circumstances, it is permissible to show upon trial of an accused for burglarizing one of the buildings that the accused was involved in the burglary of the other building. Such evidence has a reasonable tendency to establish that he was the person involved in the burglary charged.

On a charge of knowingly passing a counterfeit coin, evidence that the accused had on another recent occasion passed a counterfeit coin is admissible as tending to establish that on the instant occasion he knew the coin to be counterfeit.

On a charge of assaulting a fellow soldier with intent to wound, an assault on another soldier six months earlier and under entirely different circumstances would not be admissible, having no bearing on the intent in the case charged.

On a charge of attempting to desert, the fact that the accused had recently assaulted and beaten another soldier and was under arrest awaiting trial for the offense would be admissible as evidence of a probable motive to attempt to desert.

On a charge of falsification of accounts of stores, evidence that the accused had stolen some of the same stores would be admissible in offered as proof of a motive for concealing the theft by falsifying accounts; but evidence of a conviction of falsification in a totally distinct transaction would be inadmissible, because that evidence does not bear upon his present intent or motive but bears solely upon his general moral character.

126. HEARSAY RULE-a. General rule. Hearsay is not evidence. This means simply that a fact can not be proved by showing that somebody stated it was a fact. Thus, either an oral or a written statement not made by a witness in court in the trial of a particular case but later offered in court as evidence of the truth of the matter stated is hearsay and not evidence. Such a statement does not become evidence because received by the court without objection. Underlying the hearsay rule is the principle that the testimony of witnesses, to be of value, must be taken in court so that the witnesses may be sworn, crossexamined, confronted by the accused, and observed by the court.

The fact that a given statement was or was not made may itself be relevant. In such a case a witness may testify that the statement was made-not for the purpose of proving the truth of what was stated but for the purpose of proving the fact that it was stated.

b. Illustrations. Captain A conducted the investigation of charges against the accused. The testimony of Captain A at the trial that the witnesses other than the accused testified to certain facts at the investigation is inadmissible to prove such facts because the testimony of Captain A is hearsay. However, the testimony of any person present at the investigation that he heard the investigating officer warn the accused that he was not required to make any statement and that any statement he might make might be used against him is admissible for the purpose of showing that the warning was in fact given. This is true because in the latter case the testimony is offered, not for the purpose of proving the truth of the statements made by the investigator, but merely to prove the fact that such statements were made to the accused.

A soldier is being tried for larceny of clothes from a locker. Private A is able to testify that Private B told Private A that he, Private B, saw the accused leave the quarters with a bundle resembling clothes about the time the clothes were stolen. Such testimony from Private A would be hearsay and inadmissible. Private B himself should be called as a witness.

The fact that the statement was made to an officer in the course of an official investigation does not make hearsay admissible. For instance, if Private B had made his statement to Captain C in the course of an official investigation by Captain C, the testimony of Captain C as to what Private B told him officially is nevertheless hearsay and inadmissible.

X is unable to identify A as her assailant at the trial of A for rape of X, but M is able to testify that on the date following the rape X declared at a line-up that A was her assailant and pointed at him. The testimony of M is hearsay and inadmissible.

A soldier, B, is being tried for selling clothing. Policeman A is able to testify that while on duty as a policeman he saw the accused go into a shop with a bundle under his arm, that A entered the shop and the accused ran away and A was unable to catch him, and that the next day A asked the proprietor of the shop what the accused was doing there, and the proprietor replied that the accused sold him some clothes issued by the Government, and that he paid the accused $2.50 for them. The testimony of the policeman as to the reply of the proprietor is hearsay and inadmissible. The fact that the policeman was acting in the line of his duty at the time the proprietor made the statement would not render the evidence admissible.

A soldier is being tried for disobedience of a certain order given him orally by Captain C. A witness is able to testify that he heard Captain C give the order to the accused. Such testimony, including the terms of the order, is not hearsay.

Unless covered by an exception, official statements made by an officer-as, for instance, by a company, regimental, or department commander, or by a staff officer, in an indorsement or other communication-are not excepted from the general rule of exclusion by reason of the official character of the communication or the rank or position of the officer making it. Nor is such a statement so excepted from the hearsay rule because it is among papers referred to the trial judge advocate with the charges.

c. Exceptions. Some of the excерtions to the hearsay rule presented for application in court-martial trials are stated in 127 to 132.

127. CONFESSIONS; ADMISSIONS BY ACCUSED; ACTS AND STATEMENTS OF CONSPIRATORS AND ACCOMPLICES; STATEMENTS THROUGH INTERPRETERS-a. Confessions and admissions. A confession is an acknowledgment of guilt. An admission is an incriminatory statement falling short of an acknowledgment of guilt. A confession or admission may not be received in evidence if it was not voluntarily made. In view of the unusual circumstances in which accused persons are sometimes placed when making confessions, evidence of confessions is in general to be received with caution. When, however, a confession is explicit and deliberate as well as voluntary, and if oral, is proved by a witness or witnesses by whom it has not been misunderstood and is not misrepresented, it is indeed one of the strongest forms of proof known to the law.

Courts should bear in mind that mere silence on the part of an accused when questioned as to his supposed offense is not to be treated as a confession or admission.

Although a confession may be inadmissible as a whole because it was not voluntarily made, nevertheless the fact that it furnished information which led to the discovery of other evidence of pertinent facts will not be a reason for excluding such other evidence. For example, if an accused charged with larceny said that he had stolen certain ar