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LESSON 1
LEGAL RAMIFICATIONS OF CI INVESTIGATIONS
| CRITICAL TASKS: | NONE. |
OVERVIEW
LESSON DESCRIPTION
In this lesson, you will learn the limits of military jurisdiction and crimes of national security that are of interest to the CI agent. In addition, you will review the procedures for processing physical evidence and the rules of admitting evidence in a judicial proceeding.
TECHNICAL LEARNING OBJECTIVE:
| TASKS: Be able to discuss rules of evidence, explain the limitations of military jurisdiction, define each of the national security crimes, and describe how to safeguard physical evidence. Be able to discuss rules of evidence, explain the limitations of military jurisdiction, define each of the national security crimes, and describe how to safeguard physical evidence. |
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CONDITIONS: You will be given narrative information pertaining to legal ramifications of CI investigations during both peacetime and wartime. |
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STANDARDS: You will analyze a CI investigation for potential legal impediments in accordance with the provisions of AR 381-10, AR 381-20, and EO 12333. |
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REFERENCES: The material contained in this lesson was derived from the following publications: AR 380-5.AR 380-67. AR 381-10. AR 381-20. AR 600-10. AR 600-31. AR 600-37. AR 600-40. FM 19-20. FM 34-60. |
INTRODUCTION
As a Counterintelligence (CI) Agent involved in highly sensitive investigations, you must be thoroughly knowledgeable of both the military and civilian concepts of jurisdiction as defined by the Court of Military Appeals and the US Supreme Court. Although not required to be a subject matter expert, you are nevertheless required to have the basic skills necessary to collect and present evidence. In addition, you must be aware of the provisions of the Delimitations Agreement and how they apply to all phases of an investigation. An effective agent is one who has a thorough knowledge of all the basis legal ramifications.
This lesson has two parts:
Part A: Military Jurisdiction.
Part B: CI Investigations within the Military Jurisdiction System.
After each part, there is a practice exercise. Answer all the questions on each practice exercise and check your answers. Do NOT go on until you answer all the questions correctly.
PART A: MILITARY JURISDICTION
In this part of Lesson 1, you will learn:
* The definition of jurisdiction.
* The definition of military jurisdiction.
* The concept and historical background of military jurisdiction as it is currently interpreted.
* The categories of persons subject to military jurisdiction.
JURISDICTION.
As it is used in military law, jurisdiction is the right, power, or authority to administer justice. It refers to the categories of persons and offenses, as well as the extent or territory over which the right, power, or authority is exercised.
MILITARY JURISDICTION.
Military jurisdiction for the US military was defined by the US Constitution and has been interpreted by the US Supreme Court in a series of decisions.
Constitutional Provisions.
A system of military justice is specifically provided for in the Constitution. Article 1 of the Constitution provides, in part, that Congress has the power "to make Rules for the Government and Regulations of the land and naval forces". It further provides that Congress has the power "to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers..." These provisions indicate an awareness of the need for the military to have a system of procedural rules and regulations, and protections different from those prescribed by Article III of the Constitution.
In cases not arising in "the land and naval forces," an accused is entitled to "the benefit of an indictment by a grand jury" and a "trial by jury" as guaranteed by the Sixth Amendment of Article III of the Constitution. The Fifth Amendment, however, specifically exempts "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger", from the requirement of prosecution by indictment.
The powers granted to the Congress mentioned above are the source of military law which provide for the creation of a system of military jurisdiction over personnel serving in the armed forces.
Limits of Military Jurisdiction in Cases Related to Military Service Members. There was no real question of the military's jurisdiction over its members and matters relating to military justice for more than 100 years (from 1863 to 1969). During this period, it was generally assumed military status was sufficient basis for the exercise of military jurisdiction over an accused. In 1969, however the US Supreme Court ruled in the case of O'Callahan V. Parker, 395 US 258 (1969), that offenses that were not service connected nor of military significance were not triable by military courts. As a result of that decision, military members that were charged with crimes recognized in a civilian court, of no military significance, and not service connected, were to be the constitutional rights of indictment by a grand jury and trial by a petit jury found in a civilian court. The majority opinion expressed concern over the lack of constitutional protection in military courts. This decision served as the basis for defining military court-martial jurisdiction until the landmark case of US v. Solorio, 107 S. Ct. 2924 (1987), which was decided in July 1987.
Solorio was charged with numerous sex offenses involving females under the age of 16, each of whom was the daughter of a fellow Coast Guardsman. Fourteen specifications of alleged misconduct took place of Juneau, Alaska (off-post) while seven specifications took place at Governor's Island New York (on-post). Solorio contested jurisdiction over the Alaskan offenses. The lower court dismissed the off-post offenses as not being connected to the service and therefore, not within the jurisdiction of the court. The Coast Guard appealed. Subsequent to the Court of Military Appeals' ruling that the lower court had jurisdiction over all offenses. Solorio petitioned the US Supreme Court. Chief Justice Rehnquist delivered the opinion for the majority. The Court held that military jurisdiction depended entirely on the status of the accused as a member of the Armed Forces. In so holding, the O'Callahan test for service connection was abandoned. The power of Congress to make rules for land and naval forces enables Congress to balance the needs of military against the rights of the soldier. Arguably, the Manual for Court-Martial, 1984, prescribed constitutional protection for the military accused that no longer supported the O'Callahan rationale for trying a soldier in a civilian court. In addition, as the Court commented, the civil courts are "ill-equipped" to establish policies regarding matters of military concern.
The net result of this recent case was to establish that the jurisdiction of the military court extends to any criminal act committed by a service member no matter where, when or for what purposes, the crime occurred.
Limits of Military Jurisdiction Over Civilians.
However, the trend in recent Supreme Court decisions has been to limit the scope of military jurisdiction. In 1955, the Supreme Court rendered such a decision in United States ex rel.Toth v. Quarles. In Toth, the accused was a civilian who had severed all connections with the military.
He was arrested by Air Force authorities and returned to Korea to stand trial by court-martial on charge of murder arising from an incident that occurred while he was on active duty and stationed in Korea. In Toth, the Supreme Court held that "Congress cannot subject civilians like Toth to trial by court-martial. They, like other civilians "the court noted, "are entitled to have a benefit of safeguards afforded those tried in the regular courts authorized by Article III of the Constitution."
The effect of the decision in Toth was to deny the military jurisdiction over service members who had severed all connections from the military for offenses committed while serving on active duty.
Peacetime Jurisdiction. The Army has court-martial authority over US Military personnel. With the enactment of the Uniform Code of Military Justice (UCMJ), Congress exposed certain types of civilians to trial by court-martial for offenses committed overseas. For example, Article 2(11) of the UCMJ specifically provided for the exercise of military jurisdiction over "person serving with, employed by, or accompanying the armed forces outside the United States..."
Attempts by the military to try civilians by court-martial under the provisions of Article 2(11) of the Codes, however, were not successful. The first in a number of decisions prohibiting the practice was rendered in 1957. At that time, the Supreme Court held the military did not have jurisdiction to try two American service wives for capital offenses committed overseas.
In Reid v. Covert, the wife of an Air Force sergeant stationed in England was tried by general court-martial and convicted of murdering her husband. In Kinsella v. Kruegner, a companion case, the accused was the wife of an Army officer stationed in Japan. Like Mrs. Covert, she was charged with the murder of her husband and was tried and convicted by general court-martial on the charge.
In both cases, the women filed writs of habeas corpus contending Article 2(11) of the UCMJ was unconstitutional. The Supreme Court agreed with petitioners. The court held the wives of servicemen "could not constitutionally be tried by the military authorities" for capital offenses committed overseas. A majority of the court determined that, as civilians charged with capital offenses in peacetime. the accused were entitled to trial in a civilian court under the procedural safeguards guaranteed by the Bill of Rights.
The court's decisions in these two cases caused others to question jurisdiction over civilian dependents committing noncapital offenses overseas. It also raised questions on whether the military could exercise jurisdiction over civilian employees of the armed forces committing capital and noncapital offenses overseas.
In 1960, in Grisham v. Hagan, the Supreme Court applied the reasoning set forth in Reid v. Convert and held that the military did not have jurisdiction to court-martial a civilian Army employee for a capital offense committed overseas during peacetime. In Grisham, the accused was a civilian employed by the US Army in France. He was tried by general court-martial for premeditated murder and sentenced to life imprisonment.
The accused petitioned for a writ of habeas corpus alleging, in part, that Article 2(11) was unconstitutional as applied to him, because Congress lacked the power to deprive him of a civil trial affording all of the protections of Article III and the Fifth Amendment of the Constitution.
In effect, Grisham argued that, as a civilian defendant, he was entitled to the Constitutional protections granted to those tried by civilian courts. In Grisham, the Supreme Court determined civilian employees are entitled to trial by jury, just as civilian dependents are. Accordingly, it held the military did not have jurisdiction to try the accused for a capital offense committed overseas in peacetime.
In Kinsella v. United States ex rel. Singleton, 80 S. Ct. 297 also decided in 1960, the accused was Mrs. Dial a wife of a soldier stationed in Germany. She and her husband pled guilty in a trial by court-martial to charges of involuntary manslaughter in the death of one of their children. Mrs. Dial later appealed her conviction on the grounds of Article 2(11) of the Code, authorizing prosecution of court-martial trials of persons accompanying the armed forces outside the US, was unconstitutional when applied to civilian dependents charged with noncapital offenses.
In Kinsella, the Supreme Court held the military did not have jurisdiction over civilian dependents charged with noncapital and capital offenses. The court stated, in addition, that the test of jurisdiction is "one of status, namely, whether the accused in court-martial proceedings is a person who can be regarded as falling within the term "land and naval forces."
In McElroy v. United States ex rel.. Guagliardo and Wilson W. Bohlender, 80 S. Ct. 305 the petitioners were civilian employees of the armed forces who were tried by court-martial for noncapital offenses. Both individuals were convicted and both appealed their convictions. They contended that the military did not have jurisdiction to try them for noncapital offenses committed overseas. The Supreme Court upheld the petitioners and ruled the military did not have jurisdiction to try a civilian who commits a noncapital offense overseas during peacetime.
The US Supreme Court, through its decisions in these cases, established the general rule that civilians offenders, who commit offenses while accompanying the armed forces overseas during peacetime, cannot be tried by military court-martial under Article 2(11) of the Code.
Wartime Jurisdiction. The jurisdiction over "persons serving with or accompanying an armed force in the field" in wartime is granted expressly by the UCMJ. The Supreme Court has never denied military jurisdiction over civilians accompanying the armed forces in the field during wartime. In his opinion in Reid v.Covert, Justice Black alludes to the exercise of military jurisdiction over civilians in time of war under Article 2(10) of the Code. In part, he said:
In wartime, it is clear the military can exercise court-martial jurisdiction over civilians accompanying armed forces "in the field". In a number of cases, the exercise of such jurisdiction has been upheld.
In United States v. Averette, the accused was a civilian employee of an Army contractor in Vietnam. He was tried and convicted by general court-martial for conspiracy to commit larceny and attempted larceny. On review, the Court of Military Appeals held Averette was not subject to trial by court-martial.
In reaching the decision, the Court stated that the words "in time of war" mean, for the purposes of Article 2(10)...a war formally declared by Congress.
Because Congress had not formally declared war in Vietnam, the court held the accused was not subject to court-martial jurisdiction. In addition, the Court was careful to note it was not expressing--
| "An opinion on whether Congress may constitutionally provide for court-martial jurisdiction over civilians in time of a declared war when these civilians are accompanying the armed forces in the field. Our holding is limited--for a civilian to be triable by court-martial in 'time of war', Article 2(10) means a war formally declared by Congress." |
Since Congress had not formally declared war in Vietnam, the military did not have jurisdiction to try Averette by court-martial for the offenses with which he was charged.
Conclusion. Decisions of the Supreme Court and the Court of Military Appeals have held peacetime court-martial jurisdiction over civilian dependents an employees in overseas situations is unconstitutional. Neither the Supreme Court nor the Court of Military Appeals has rule on the issue of whether civilian dependents and employees accompanying an armed force in a wartime are subject to court-martial jurisdiction. Other federal court, however, have upheld the exercise of military jurisdiction in such cases. The Court of Military Appeals, while not passing on the constitutionality of wartime jurisdiction, has strictly construed the term "time of war" to mean a time when war has been declared formally by Congress.
PRACTICE EXERCISE 1A
PART B: CI INVESTIGATIONS WITHIN THE MILITARY JURISDICTION SYSTEM
In this part of Lesson 1, you will learn:
* The concept of investigative jurisdiction.
* The definition of apprehension.
* The provisions of the Delimitations Agreement.
* The conduct of investigations of national security crimes.
* The proper handling of different types of physical evidence.
INVESTIGATIVE JURISDICTION.
The jurisdiction of military counterintelligence (CI) investigative authority is set forth in AR 381-10, AR 381-20, and the Delimitations Agreement. The investigative jurisdiction of CI units and elements encompasses all matters within their mission, except as limited by regulations and agreements by Department of the Army with other agencies. In essence--
| "The Army will conduct aggressive, comprehensive, and coordinated counterintelligence activities world-wide, to defect, identify, assess, and counter, neutralize, or exploit the intelligence collection efforts, other intelligence activities, sabotage, subversion, sedition, terrorist activities, and assassination efforts of foreign powers, organizations, or persons directed against Department of the Army (DA) or Department of Defense personnel, information, material, and activities. This mission will be accomplished during peacetime and all levels of conflict". |
DELIMITATIONS AGREEMENT.
The Delimitations Agreement is a document that specifies both the investigative jurisdiction and limitations that apply to each military service and the Federal Bureau of Investigation (FBI). In implementing the personnel security program, it became necessary to conduct investigations on certain persons to determine their loyalty to the US. The Delimitations Agreement spells out the responsibilities and limits of the FBI and each service to prevent investigative agencies from interfering with each other. It also prevents duplication of effort by the four agencies (FBI, Army, Navy, and Air Force).
Purpose.
The agreement was established in 1949, by the Office of the Deputy Chief of Staff for Intelligence, US Army; Office of Naval Intelligence, US Navy; Office of Special Investigations, Inspector General, US Air Force; and the FBI. This agreement, commonly known as the "Delimitations Agreement," concerns the responsibilities of the signatories for the investigation of all activities coming under the categories of espionage, counterespionage, criminal subversion, and sabotage. This agreement is binding upon all US Army investigative agencies. Under the agreement, the responsibility assumed by each organization carries with it the obligation to exchange freely and directly all information of mutual interest. When the organization, with primary operating responsibility is unable for any reason to produce material in that field desired by the subscribing agencies, special arrangements are worked out through negotiation at the national level. These negotiations take place before activity by one agency in another agency's field. Close cooperation and coordination between the four subscribing organizations is a mutually recognized necessity.
NOTE: The Office of Naval Intelligence has been re-designated as the Naval Investigative Service.
Responsibilities.
Following is a list of the responsibilities set forth in the agreement to include appendices and supplemental agreements:
FBI.
All investigations of espionage, counterespionage, criminal subversion, and sabotage cases involving civilians and foreign nationals of all classes in the Continental US, Alaska, Hawaii, Puerto Rico, and the Virgin Islands.
All investigations of violations of the Atomic Energy Act of 1946. There are no territorial or personnel limitations on this provision.
The coordination of the investigative activities of civilian agencies in the US, Puerto Rico, and the Virgin Islands that provide information regarding subversive movements and activities in these categories.
Keeping the other subscribing organizations advised of important developments in espionage, counterespionage, criminal subversion, and sabotage within its cognizance, particularly--
* Activities of inactive reserves of the armed forces, including the National Guard.
* Developments affection plants engaged in armed forces contracts.
* Developments concerning the strength, composition, and intention of subversive civilian groups within its cognizance whose activities are a potential danger to US security.
* Developments affecting those vital facilities and vital utilities designated by the Secretary of Defense.
* Developments affecting critical points of transportation and communication systems designated by the Secretary of Defense.
Military Services: The following agencies represent investigative authority for the respective military services:
The Office of the Deputy Chief of Staff for Intelligence, DA (DCSINT, DA); the Naval Investigative Service; and the Office of Special Investigations, Inspector General, US Air Force.
In general, these organizations are responsible for the following:
* The investigation and disposal of all cases of espionage, counterespionage, criminal subversion, and sabotage involving active and retired personnel of that particular service.
* The disposal, but not investigation, of all cases in these categories involving civilian employees of the particular service in the US, Puerto Rico, and the Virgin Islands.
* The investigation and disposal of all cases in these categories involving civilian employees of the particular service stationed in areas other than the US, Puerto Rico, or the Virgin Islands, except the part of the investigations that have ramifications in the US, Puerto Rico, or the Virgin Islands.
* The investigation of all cases in these categories involving civilians and foreign nationals who are not employees of the other subscribing organizations, in areas where the commander of the particular service has supreme jurisdiction over the armed forces stationed therein, including possessions of the US other than Puerto Rico and the Virgin Islands.
* Informing the other subscribing organizations of any important developments.
NOTE: The Navy and Air Force have special provisions involving a section of Alaska.
Where the above paragraphs involve general territorial coverage, responsibility for such coverage will pass from one element of the armed forces to another automatically with change of command responsibility. This provision is subject to modification by direct agreement between the interested elements of the armed forces.
While investigative jurisdiction of the civilian populace in former enemy territories occupied by the armed forces has been provided for above, those provisions are subject to direct adjustment with the State Department, if and when that department assumes governmental direction in such area of occupation.
From time to time, it may be desirable to modify or amend the Delimitations Agreement. Subject to the exceptions already provided for above, general amendments or modifications involving all of the four subscribing organizations will be issued in the form of a revised Delimitations Agreement and not as separate instructions.
During periods of martial law or periods of predominant armed forces interest not involving martial law, when agreed upon by the subscribing agencies, the provisions of Appendix A or B to the Delimitations Agreement will also apply.
All agreements of a continuing nature and applicable to two or more of the subscribing agencies to the Delimitations Agreement that effect its effect its basic jurisdiction will be reduced to writing. Then they will become supplements to the Delimitations Agreement and distributed to the extent agreed upon by the co-signers.
Army Investigations Under AR 381-10.
Army CI investigations may target both non-US persons, if the criteria outlined in AR 381-10 are met. To determine if such a situation exists, the following analysis must be performed:
* Is the anticipated investigation within the CI mission as stated in AR 381-20?
* Who are the subjects? Are they US persons (US citizens, legal resident alien, US corporations, or, organizations composed mainly of US persons), or are they non-US persons? Are they active duty Army or are they civilians?
* Does the Army have the primary jurisdiction based on the Delimitations Agreement?
* If the Army does not have jurisdiction, what types of information may be collected? (See AR 381-10.)
* What collection methods may be used and what approvals must be secured before initiating? (See AR 381-10.)
* Once the information is acquired, may it be kept or disseminated? (See AR 381-10.)
In general, this analysis highlights key items as addressed in AR 381-10; namely that CI agents only become active where they are authorized to do so, that the constitutional rights of US persons are protected, and that intelligence collection is a vital mission in respect to our national defense that must be performed to the maximum extent possible consistent with the law.
"Apprehension" is defined as the act of taking a person into custody based on a legal warrant or authority. The main point is that military intelligence (MI) investigations do not involve apprehension. However, it is necessary to know when CI agents can apprehend and who they can apprehension. However, it is necessary to know when CI agents can apprehend and who they can apprehend.
Pursuant to 10 USC 807-809, 28 USC 535, Rules for Court-martial (RCM) 302, AR 600-40, and this regulation, CI agents are authorized to apprehend any person subject to the UCMJ, regardless of location, if there is a reasonable belief that the person has committed a criminal offense under United States Army Intelligence Agency USAIA Investigative jurisdiction CI agents are also authorized to conduct investigative stops of any person subject to the UCMJ, regardless of location, if there is a reasonable suspicion that the person has committed a criminal offense under USAIA, investigative jurisdiction.
CI agents are authorized to detain civilian personnel on military installations or facilities when there is a reasonable belief that the person has committed a criminal offense against the U.S. Army, and the offense is within USAIA investigative jurisdiction. CI agents are also authorized to conduct investigative stops of civilians on military installations or facilities, if there is a reasonable suspicion that the person has committed a criminal offense under USAIA investigative jurisdiction. Civilian will be detained only until they can be released to the FBI.
Army CI agents may not apprehend or detain civilians outside the limits of a military installation or facility within the United States. When an apprehension is necessary in the conduct of a CI investigation, an arrest warrant must be obtained and executed by a civil law enforcement officer. CI agents may accompany the arresting official for the purpose of identifying the person to be arrested and to provide assistance as authorized in AR 500-51.
Apprehension of civilians off a military installation or facility outside the United States may be authorized if host nation authorities consent and the proper arrest warrant is obtained.
Personnel apprehended by CI agents will be released to civil or military police, as appropriate, for processing detention, or confinement.
US Army CI Agents are specially trained to detect and investigate espionage, sabotage, treason, sedition, criminal subversion, disaffection, and all others and then initiate action to prevent and neutralize the treat posed to US Army command, personnel, and functions by these activities. These activities are collectively termed "national security crimes."
Sabotage.
Definition. The essence of the crime of sabotage (Title 128, USC, Chapter 105, Sections 2151-2156) is the deliberate injury, destruction , or defective production of national defense or war materials by either an act of commission or omission.
It can be anticipated that acts of sabotage, both in overseas areas-of-operation and in the Continental US, will increase significantly in future wars, regardless of the type or level of conflict.
Sabotage is a particularly effective weapon of guerilla and partisan groups, operating against logistical and communication installations in occupied hostile areas, and of insurgents in internal defense operational areas. Acts of sabotage may be committed by trained saboteurs sponsored by hostile guerrilla, insurgent, or intelligence organizations. They may also be conducted by individuals operating independently and motivated by revenge, hate, spite, or greed. During limited war when guerrilla forces are active, internal defense measures must distinguish between acts involving clandestine enemy agents or dissatisfied friendly personnel from overt acts of war perpetrated by armed enemy units.
Types of Sabotage. Incidents of sabotage or suspected sabotage normally are classified according to the means employed. The traditional types of sabotage have been incendiary, explosive, and mechanical. In the future, chemical, biological, and nuclear means of sabotage may be used this will pose an even greater threat to military operations.
Investigative Procedure in Sabotage Investigations. Because the first indication of sabotage normally will be the discovery of the e injury, destruction, or defective production most sabotage investigations will be incident-type cases (that is, cases involving an unknown person or persons). Immediate action is of paramount importance in conducting a sabotage investigation. The saboteur may still be near the scene, or other military targets may require immediate additional security protection to preclude or limit further damage. Of vital significance is the preservation and analysis of the incident scene before the evidence is altered or destroyed.
Espionage.
The giving or selling national military or defense secrets to a foreign nation. Unlike sabotage cases, most espionage investigations will be personal subject rather than incident-type cases-that is, they will originate with allegations regarding the activities of know individuals. These are instances, however, when CI investigators will be directed to conduct investigations of incidents. In these cases, espionage is suspected, but the identity of suspects has not been established (for example, the theft of classified documents or material). Leads in espionage investigations may originate from a wide variety of sources, prominent among which are the following:
* Reports from confidential sources.
* Reports from other intelligence, security, and law enforcement agencies.
* Discovery of evidence of espionage during surveys, inspections, and technical surveys.
* Report submitted by military units in accordance with provisions of AR 381-12 regarding espionage directed against the US Army and its personnel.
* Discovery of evidence of espionage during screening of refugees, line-crossers, displaced persons, enemy prisoners of war, and similar groups.
* Information developed during the course of routine personnel security investigations.
* Information or evidence obtained through censorship operations.
Federal Espionage Statutes. The espionage statutes encompass many kinds of activities and have the ultimate goal of preventing defense information from falling into the hands of a foreign nation.
The salient aspects of the Federal Espionage Act, Title 18, USC, Sections 793-796, are summarized as follows:
Whoever, with the intent or reason to believe the information is to be used to the injury of the US or to the advantage of a foreign nation--
* Goes into a place connected with the national defense for the purpose of obtaining defense information;
* Copies anything connected with the national defense;
* With either lawful or unlawful possession, delivers national defense information to one not entitled to receive it, fails to deliver it on entitled to receive it; or,
* Receives or obtains any writing connected to the national defense with reason to believe it was obtained contrary to law will have committed a criminal violation of the espionage act.
In addition, anyone who attempts to communicate with the enemy during wartime; collects, communicates, or attempts to elicit information pertaining to the public defense; or with lawful possession, through gross negligence rather than intent, permits national defense information to be lost, stolen, or abstracted; or having knowledge of such loss, theft, or abstraction fails to make prompt report of the same will also have violated the act.
The punishment specified in the USC for most violations of the espionage act is a fine of not more than $10,000 or imprisonment for not more than 10 years or both. The exceptions are reproduced below from the USC:
18 USC 794(a)... Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit to any foreign government...or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly any information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life.
18 USC 794(b)...Whoever, in time of war, with the intent that the same shall be communicates, to enemy, collects records publishes, or communicates, or attempts to elicit any information with respect to the movement, numbers, description, condition, or disposition of any of the Armed Forces...or war materials of the United States...or any other information relating to the public defense, which could be useful to the enemy, shall be punished by death or by imprisonment for any term of years or for life.
Espionage Under UCMJ.
The description of what constitutes espionage under Article 106a of the UCMJ is essentially the same as that under 18 USC section 794. The only significant difference found in the UCMJ is the potential punishment. For the following categories, a compromise of material could result in punishment by death for the accused:
* Nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation,
* War plans.
* Communication intelligence.
* Any other major weapon system or defense strategy.
NOTE: The death penalty pertains to both war and peacetime situations.
Spying. Although the crime of spying as defined in Article 106, UCMJ, differs from espionage, counterintelligence investigations (CIIs), based on Article 106, are to be categorized as espionage cases for reporting and statistical purposes. Spying is strictly limited to wartime military situation because of the requirements of international law, particularly the provisions of the Geneva Conventions. The four elements that constitute the crime of spying are as follow:
* Breach of our lines and apprehension within US zone-of-operations.
* Clandestine operations or false pretenses.
* Obtaining or seeking information to communicate to the enemy.
* Specific intent to so communicate.
NOTE: All four elements must be present to bring charges of spying.
Investigative Guidelines in Espionage Cases. Analysis of the statute and pertinent court decisions permit the following conclusions to the drawn with respect to proof of espionage:
"National defense information" is information of military significance which has not been published for public consumption; that is, not distributed in public channels. It need not be classified defense information as defined in AR 380-5. The critical points are it relates to the national defense and has been restricted to authorized channels.
"Any foreign nation" means the nation involved need not be a declared enemy, as in treason.
Loss through gross negligence requires no positive act because it is a crime of omission. Each facet (grossly negligent, loss, and failure to promptly report) is a separate and distinct crime.
The espionage investigation must be directed toward the collection of information to show whether:
* National defense information was involved.
* There was an intent or reason to believe the US would be injured, or a foreign nation would benefit.
* One or more of the acts enumerated in the statute actually occurred.
Conduct of Espionage Investigations. No single set of investigative procedures can be recommended as applicable to the conduct of espionage investigations. This is because of the wide variety of circumstances under which espionage cases may originate and the many different elements that may constitute the crime of espionage. In addition, it may not always be desirable to direct the course of the investigation toward the arrest and prosecution of the offender.
The following quotation from testimony in February 1950, by J. Edgar Hoover, then FBI Director, explains why arrest and prosecution are not always the objectives of espionage investigations:
| "In a criminal case, the identification and arrest of the wrongdoer are the ultimate objectives. In an espionage case, the identification of the wrongdoer is only the first step. What is more important is to ascertain his contacts, his objectives, his sources of information, and his methods of communications. Arrest and public disclosure are steps to be taken only as a matter of last resort. It is better to know who these people are and what they are doing, and to immobilize their efforts, than it is to expose them publicly and then go through the tireless efforts of identifying their successors." |
Treason.
The abuse of treason statutes in English legal history led the framers of the US Constitution to include a limiting definition of reason in that document. The Constitution also imposes qualifications regarding the conviction of an individual for that crime. "...no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or on confession in open court." (Article III, US Constitution.)
CI investigations in which treason is alleged or suspected often occur during wartime. However, they are more apt to be opened immediately upon the conclusion of hostilities. Allegations of treason may originate with liberated prisoners of war, interned US civilians, examination of captured enemy records, or interrogation of enemy military and civilian personnel.
Elements of Treason Under Federal Statute. Interpretation by the federal courts in treason cases leads to the following generalities concerning the legal elements of the crime of treason under the federal statute:
The accused must owe allegiance to the US. A US citizen owes permanent allegiance whether in the US or on foreign soil, unless an effective renunciation of citizenship was made. An alien in the US owes temporary allegiance to the US because he enjoys the protection of US laws.
A levy of war must be an actual wage of open hostilities against the government with specific intent to cause its overthrow.
Aid and comfort to the enemy means, in general, any act committed after a state of war exists which indicates a want of loyalty to the US Government and sympathy with its enemies, and which by fair construction, is directly in furtherance of their hostile designs.
The levy of war and aid and comfort to the enemy are alternative acts, either of which, when done by a person owing allegiance to the US, constitutes treason.
The investigative burden in treason cases is as follows:
Allegiance to the US at the time of the act of treason must be shown.
A levy of war under the two following conditions must be shown:
* Open hostilities against the US Government.
* Specific intent to overthrow the US Government.
There must be an aid and comfort to the comfort to the enemy under these conditions:
* Tangible or intangible aid to an enemy must be shown.
* The enemy must be in a state of open hostility with the US Government.
Two witnesses to the same overt act must testify, or it must be established that the accused intends to confess in open court.
Aiding the Enemy. Investigations conducted by CI personnel to prove or disprove charges brought against a subject under Article 104, Appendices B and C, UCMJ, Aiding the Enemy, may in some cases be categorized as treason cases.
The article provides that "any person who (1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things, or (2) without proper authority knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly shall suffer death or such other punishment as court-martial or other as a military commission may direct."
Physical Acts Which Constitute Aiding the Enemy. From the wording of the article and interpretation by the Court of Military Appeals, there are three physical acts that constitute the crime of aiding the enemy. Any on of these acts committed with general criminal intent is a violation of the article:
* Aiding the enemy with ammunition, arms, supplies, or other things.
* Harboring or protecting the enemy without proper authority.
* Giving intelligence to, communication with, corresponding with, or holding any intercourse with the enemy without proper authority.
Proof Requirements Under Article 104.
* It is necessary to prove only that one or more of the prohibited acts actually occurred.
* The enemy need not be a declared enemy but may be a "substantial" enemy. For example, communist forces in the Korean or Vietnam Conflicts.
* The requirements of proving allegiance and the overt act by two witnesses which are essential under the federal treason statute do not apply.
Korean Conflict Cases Under Article 104. Article 104 was used in the majority of the court-martial cases arising from the Korean prisoner of war incidents. Most of the specifications in these cases concerned that part of the act making correspondence without authority, a crime. The Court of Military Appeals established in these cases there are only three types of communication with the enemy that may be made with "proper authority" under military law:
* A communication disclosing name, rank, social security number, and date of birth.
* A communication concerning the necessities of life.
* A communication concerning regulations and orders of the place of confinement.
Conduct of Treason Investigations. Treason cases will almost always be personal-subject rather than incident cases. Unlike most other CIIs, the investigation of a treason case will be primarily concerned with obtaining evidence of past rather than current activities. The CI Agent must give particular attention to the legal requirements governing the collection and preservation of evidence, especially the taking of statements from witnesses and suspects. He must be careful to sift fact from rumor or hearsay when taking testimony from witnesses and reporting the investigation results. In many cases, it will be necessary for the investigator to consult regularly with legal authorities during the course of the investigation to ensure the elements of proof are being fulfilled and all applicable legal conditions and restrictions are met.
Sedition.
CIIs regarding alleged or suspected sedition may be used on either the federal sedition statute (Sections 2384 and 2385, Title 18 USC) or the UCMJ (Article 94, Mutiny and Sedition). Leads or allegations that prompt the opening of sedition investigations by control offices may come from many sources. They are most often based on information submitted by confidential sources contained in reports from other agencies or developed during the course of routine background investigations (BI). CIIs involving sedition may occur with equal frequency in either peacetime or periods of hostilities.
Seditious Conspiracy. Section 2384 of Title 18, USC, make it a specific crime to conspire to overthrow the US Government. Unlike the general conspiracy statute, which makes it a crime to conspire to commit any federal crime, the seditious conspiracy statute does not require the commission of an overt act toward fulfillment of the conspiracy's objective. The crime of seditious conspiracy is complete when two or more persons have entered into agreement to overthrow the government, or to prevent, hinder, or delay the execution of any federal law. It should be noted seditious conspiracy is a conspiracy to actually overthrow, as distinct from a conspiracy to advocate overthrow. Advocacy of the Overthrow of the US Government. Section 2385 of Title 18, USC, also known as the Smith Act (see figure 1-1), enumerates four specific types of activity which, if done to cause the overthrow of the government by force or violence, constitutes sedition. The prohibited acts are:
* Advocating or teaching the duty or necessity of such overthrow.
* Printing, publishing, selling, or distributing written matter advocating or teaching the duty or necessity of such overthrow.
* Organizing a society or group whose purpose is to advocate or teach the duty or necessity of such overthrow.
* Being or becoming a member of a affiliated with such society or group knowing the purpose thereof.
Court decisions relative to advocacy of overthrow have established the advocacy must be calculated to incite persons to take imminent, lawless action toward the violent overthrow of the government. The mere advocacy or teaching of forcible overthrow of the government as an abstract principle, divorced from any effort to instigate action to that end, does not constitute the crime of sedition under the Smith Act. The requirement for the advocacy to "incite persons to take action" is of particular significance to the CI Agent. Considerable effort in any case alleging violation of the Smith Act will be directed toward proving the oral or written material involved intended to incite listeners or readers to take action.
THE SMITH ACT Seditious Advocacy * Advocacy of action. * Systematically teach techniques to accomplish unlawful goals. * Words must be used so as to incite imminent lawless action. * A specific intent to overthrow the Government of the United States. Seditious Membership * Knowledge of any organization and its objective of over-throwing the Government of the United States by force or violence. * Active membership furthering the objective of the organization. * Specific intent to support the objective of the overthrow of the US Government by force or violence. |
Figure 1-1. Components of the Smith Act
Mutiny and Sedition. CI personnel may be directed to investigate sedition or mutiny cases.
Such complaint-type cases may be either personal-subject or incident-type.
"Mutiny" is defined as collective effort to overthrow lawful military authority. It also includes, under Article 94, UCMJ, the creation of a riot or disturbance with the intent to overthrow lawful military authority. The offenses may be committed in two ways:
* By several persons acting in concert to refuse to obey orders from proper authority and with intent to override military authority.
* By a person, with a similar intent, acting either alone or in concert with others, creating violence or a disturbance. The investigation of incidents of mutiny normally will not be assigned to CI personnel unless the mutiny is believed to be related to hostile intelligence or subversive activities.
Article 94, UCMJ, makes it a crime for any person, with intent, to cause the overthrow or destruction of lawful civilian authority, or to crate in concert with any other person a revolt, or other disturbance against such authority.
Conduct of Sedition Complaint Investigation. Sedition cases may be either incident-type, as in the case of the discovery of literature advocating the violent overthrown of the US Government; or they may be personal-subject type, as in the distribution of such literature by known persons. Covert investigative techniques are likely to be applicable to the conduct of sedition investigations.
Subversive Activity and Disaffection.
The majority of CIIs conducted by CI personnel in most areas-of-operation will be in either the "subversive activity" or "disaffection" categories. Most of these will be personal-subject cases based on adverse loyalty information developed during routine Background investigation (BI); reports submitted by military units under AR 381-12; reports from other intelligence and security agencies; and leads obtained directly from sources used in CI special operations.
Neither subversive activity nor disaffection, as such, is defined as a specific crime in either the federal criminal code or the UCMJ. Subversion is a catch-all category of various illegal acts that seek to undermine lawful, legitimate government. The objective of such a CII, therefore, usually will be to determine if there is a need for some administrative action (for example, removal from the sensitive assignment to protect the security of the military command).
Subversive activity. "Subversive activity" is all other willful activities which do not fit the categories of sabotage, espionage, treason, or sedition, but which are intended to lend aid, comfort, or moral support to individuals, groups or organizations advocating the overthrow of the US Government by force or violence, or are otherwise intended to be detrimental to the national security of the US. This area is very vague since there are no statutory standards which must be met. The investigation must, however, fulfill the following:
* Determine what act occurred.
* Show the activity was detrimental to the national security, based on evidence of probative value.
* Show the activity did not rise to the level of treason, sedition, espionage, or sabotage.
Disaffection is a state of mind. Although the disaffected person may have criminal intent, there is no conduct involved. Hence, disaffection is noncriminal in nature. However, a person within the military establishment possessing disaffection creates a vulnerability in the national security.
Such a person is most susceptible to approach by persons whose objectives are inimical to the US. The CI Agent must show disaffection through such tangible indications such as oral statements, written statements in personal correspondence, and published material.
PHYSICAL EVIDENCE.
Physical evidence is tangible in nature and recognizable in form. It tends to prove or disprove a fact in dispute. It includes all articles and material collected in connection with an investigation to establish the identity of the perpetrator and the circumstances under which an incident occurred.
These articles and material are used to aid in the prosecution of the offender. However, the importance of physical evidence, which may be encountered in any type of CI operation, is not limited to those investigations likely to result in a court trial. Physical evidence is often the proper determination of administrative actions, such as the granting of a security clearance, the issuance of a visa for entry into the US, or the admission of an alien into the armed forces.
You are not expected to be an expert in physical evidence. The analysis of various items normally will require the services of one or more specialists, such as ballistics experts, chemist, and fingerprint technicians, to fully identify the item as contributing to or not contributing to the crime. However, as a CI Agent you should have a general knowledge of the value, limitations, and characteristics of physical evidence. You should also be able to recognize, collect, handle, and preserve evidence encountered during the course of investigation.
Documentary Evidence.
Documents are the most common items of physical evidence encountered by CI personnel.
Manuscripts, magnetic tapes, records, files, reports, sworn statements, photographs, video tape movies, pamphlets, maps, sketches, passports, identity papers, and documents are likely to be collected in CI operations.
Questioned Documents. Questioned documents are those whose validity is disputed. FM 19-20 describes various categories of questioned documents and types of assistance available from criminal investigation experts and laboratories. This assistance may be obtained through liaison with the appropriate Provost Marshal's Office.
Documents Containing Codes and Ciphers. Codes and ciphers (cryptography) are often used in communication between operational elements of espionage agencies. Unless the key to the system has been obtained, the investigator should not spend any time attempting to decrypt the message. The document, along with the history of the circumstances under which it was obtained and a brief summary of the related investigation, should be given to the nearest US Army intelligence and Security Command USAINSCOM or MI unit.
Documents Suspected of Containing Secret Writing. Secret writing or the concealment from visible detection of written material by means of invisible inks, specially treated papers, microphotography, and similar systems, are also important facets of espionage communication systems. Documents taken from espionage suspects, or otherwise obtained under conditions indicating the possible presence of secret writing, should be tested for indications of secret writing. FM 34-5(S/NOFORN) and DIAM 58-11(S) contain guidance on the handling of documents suspected of containing concealed writing. No attempt should be made to recover any secret text. The material should be forwarded through intelligence channels to a facility or agency where the expertise is available.
Other Types of Evidence.
Traces and clues often may be found in the form of latent fingerprints, firearms, and ammunition; indentations made by tools, tires, or shoes; and from deposits of foreign substances such as fibers, soil, and stains.
Fingerprints. Fingerprints offer one positive means of identifying individuals, since they never change throughout a person's lifetime. Surface fingerprints can be transferred, photographed, and developed by various techniques, thus providing invaluable evidence for purpose of identification. Detailed consideration of fingerprint patterns and methods of collection and preservation are included in FM 19-20. Assistance from fingerprint experts can usually be obtained through liaison with the local Provost Marshal's Office.
Indentations and Fractures: Physical impressions and indentations left in various media are often of value as evidence. Examples are footprints, tool marks, and marking left on ammunition by the weapon from which it was fired.
Fibers. Hairs and fibers have distinctive characteristics which may be useful in identification.
They may be classified as animal, vegetable, mineral, and synthetic.
Soil and Stains. Samples of soil can provide information when examined microscopically and chemically. Studies may indicate a difference between soil and dust, the latter being composed chiefly of vegetable fibers.
Soil analysis may reveal the geological source of general origin, and at times specific areas of origin. Stains resulting from any cause are susceptible to analysis in a laboratory. They may be identified as food, vegetable matter, grease, oil, paint, rust, or body fluids.
Laundry Marks. Dry cleaning, laundry, and other clothing or linen marks, whether they are made with indelible or invisible ink, may provide valuable clues in identification. Police usually maintain records which can help with this type of identification.
Detective Dyes. Police at times use dyes and fluorescent powders that can be dusted or sprayed on items likely to be handled by suspects. Some of these are virtually indelible; others are invisible, but susceptible to detection under ultraviolet light for a prolonged period after contact.
Handling of Physical Evidence.
All CI Agents should be familiar with handling evidence or evidentiary property.
The CI Agent acquiring physical evidence is personally responsible for safekeeping until he turns it over to the designated custodian of unit evidence. The custodian is, thereafter, responsible for control and accounting of such items. Normally, an officer of the CI unit will be designated as custodian of evidence as an additional duty. For obvious reason, evidence must be securely stored and protected from the time it is acquired to the time of its use in legal or other proceedings. When applicable, sufficient quantities of evidentiary materials must be acquired to permit laboratory analysis and use in court. For physical evidence to be admissible in a court, it is often necessary to establish that the evidence was part of, and found at a particular place. For this reason, photographs should be taken of the scene showing the position of the evidence in relation to that scene.
Maintaining the chain of custody for evidence is important because it permits proof the piece collected at he scene is the same as that presented in court, was collected at the time specified, and was not tampered with or handled by unauthorized persons. The chain of custody for evidence is maintained by a Chain of Custody Document DA Form 3881. In addition to DA Form 19-31, classified items will also be covered by a security receipt. The use of DA Form 19-23, Military Police Property Identification Tag, provides a relatively easy method for identifying and inventorying property in custody.
For transmittal of classified evidence, three wrappers should be used as follows:
1. See FM 19-20 for more details on this subject.
Inner wrapper. The sealed container is wrapped and properly sealed. The following information should be placed on the wrapper: full address and return address of the transmitting agency; when appropriate, the notation "evidence--to be opened by laboratory personnel only," and the classification of contents. Except for the addresses, these notations are placed on all six sides of the package. An envelope containing two additional copies of the evidence receipts, two copies of security receipts, plus two copies of the letter of transmittal should be affixed to the inner wrapper.
Middle wrapper. The package is then wrapped and sealed a second time. The markings are the same as for the inner wrapper except no notation is made that the package contains evidence.
Outer wrapper. The package is then wrapped a third time and again sealed. The outer wrapper bears only the two addresses. However, a special handling notation must be made if the evidence is perishable, flammable, fragile, explosive, corrodible, or corrosive.
The letter of transmittal for shipment of evidence to a laboratory is prepared in accordance with instructions contained in FM 19-20 and the appropriate Program Management Guideline technical bulletin. Where appropriate, the following statements will be included in the letter of transmittal:
* Warning that the package contains evidence.
* Brief summary of the case.
* Brief history of the evidence.
* Specific list of items and their classification.
* Clear statement of request explaining reasons for transmittal of the evidence.
* Statement as to whether the evidence submitted has already been subject to examination.
* Special consideration or instructions.
Release of Evidence. Unclassified items of evidence will be released or disposed of in accordance with AR 190-22. In the case of classified items, AR 380-5, and other applicable regulations governing the handling or release of classified material will be used.
Definitions of proof, evidence and fact.
Proof: Anything which serves to convince one of the truth or falsity of a proposition.
Evidence: Anything that is legally presented before a court that clarifies the point in question.
Facts: A circumstance, event, or occurrence as it actually took place (the goal of proof and evidence).
Functions of the Judge, Jury, and Attorneys.
Judge: To decide questions of law and administer the rules of evidence.
Jury: Helps weight evidence and decide who is curable and to what degree.
Attorneys: To present the evidence to the judge and jury in the most persuasive manner of which they are capable.
Material, Relevant, and Competent. All evidence must be material, relevant, and competent to be admissible.
Material: The materiality of evidence is determined by its logical relation to an essential element of the case.
Relevant:
* Evidence will be relevant when it tends to prove or disprove a fact in issue. In this sense, its meaning is indistinguishable from materiality.
* Evidence may still be excluded, if it is too collateral or remote from the essential issue in the case.
Competent:
* A witness will be competent to testify if he is able to meet the following criteria: 1. To observe the incident. 2. Remember the incident. 3. Relate the incident. If he was intoxicated, currently insane, or considered an infant, he may be disqualified.
* Evidence must be competent in the sense it must be authentic, reliable, and trustworthy (for example, general hearsay is incompetent).
Real Evidence.
Any physical object can be considered as real evidence. Real evidence must meet the same requirements of materiality and relevancy that testimonial evidence must meet. In addition, the real evidence must be "authenticated" to be admissible.
Real evidence is authenticated when it is shown to be what it purports to be, and it is shown to be substantially unchanged from the state it was in when initially connected to the relevant facts.
Real evidence may be authenticated by proof of a complete chain of custody or by the testimony of a corroborating witness. Failure to establish a complete chain of custody is on of the biggest problems that affect MI investigations.
Witnesses.
In testimony, it is extremely difficult to distinguish between fact and opinion, for all of a witness' assertions could be said to be opinions. The law recognizes two separate classes of opinion testimony; lay and expert opinion.
Lay witness.
* A layman will be able to state his opinions on subjects of a generalized common knowledge such as colors, smell, tastes, height, size, and weight.
* A layman will be able to state his opinions and conclusions when he has personal knowledge of the facts and the average person could draw a conclusion from the facts.
* The witness will be required to state the factual basis for his opinion.
Expert witness.
* A court will accept the opinion of an expert witness when the subject matter is such the average person would not be able to draw conclusions.
* There must be a body of experience or special knowledge a court will recognize as being sufficiently distinct so an individual could specialize in it.
* The expert witness may base his testimony on personal observation of the facts of a case presented to him in the form of a hypothetical question.
The jury may reject the opinions of either the lay or expert witness.
The judge will determine the admissibility of opinion testimony.
HEARSAY INFORMATION.
Hearsay is evidence about an out of court statement, that is being offered in court, as the truth. Normally, if this circumstance occurs, the evidence will not be allowed before the jury. To determine if the definition is met, the following analysis must occur:
* Out of court statement --The witness must be attempting to tell the judge and jury about a statement that the witness heard a third party make at another place and time.
* The truth of the statement--The testimony must be offered with the intent of having the judge and jury believe that the repeated statement was indeed made and was true. If the testimony is only offered to show that something was said, period, that testimony would not be hearsay.
* Exceptions--There are several exceptions to this rule, but the most important one, from CI point of view, is that if the out of court statement was a confession or admission, it would not be considered hearsay.
Procedures for taking testimony to be used as evidence.
Direct examination. The side which calls an individual as a witness may elicit information only by direct examination of that individual. The direct examination has the sole purpose of bringing out the facts within the personal knowledge of the witness, so far as that information is admissible under the rules of evidence. In general, the questions on direct examination cannot be leading; that is, they cannot suggest the form of the answer, assume a fact not testified to, or contain a conclusion of counsel.
Cross-Examination. After his direct examination, a witness may be cross-examined by the attorney for the opposing side. Cross-examination of a witness is a legal right and its denial is highly prejudicial to a criminal defendant. The purpose of the cross-examination is to place direct testimony in its true context to avoid misleading the fact-finding body. It is used to establish contradictions and improbabilities in the direct testimony in an effort to diminish or destroy the credibility of the witness. If a witness has indicated in a previously sworn statement that one fact exists and on the witness stand tells a different story, the cross-examination attorney may point out the inconsistency during cross-examination. He attempts in that way to impeach the credibility of the witness.
The following are rules of privilege and prejudice:
Privilege. The law seeks to protect socially valuable relationships by protecting confidential communication that arises from them with an evidentiary privilege. Examples recognized in court include:
* Attorney--client privilege.
* Priest--pertinent privilege.
* Physician-patient privilege. (This relationship is not recognized in military practice, since no member of the Armed Forces may avoid medical treatment.) (For more information see DA Pam 27-22, Chapter 28.)
Governmental privilege.
* The privilege applies to information the government has that would be detrimental to the national interest if made available to the public.
* The privilege must be asserted by the head of the department that has the information, after he has personally considered the matter.
* If the judge determines the information is necessary to the accused's defense, if must be produced or the government must drop the prosecution.
Informer's privilege.
* The identity of government informants may be privileged if it is not necessary and relevant to the accused's defense.
* The contents of the informer's confidential communication may be privileged.
* If the person who made the communication is a government witness, then that report must be made available to the defense when it relates to the witness' testimony.
Prejudice.
* Some evidence that is material, relevant, competent, and not privileged may be excluded if allowing it would tend to prejudice the jury against the criminal defendant.
* The judge must balance the prejudicial effect of the evidence against its probative weight.
Circumstantial Evidence.
General. All evidence is divided into categories of "direct" and "circumstantial." Circumstantial evidence is any fact that gives rise to an inference as to the existence or nonexistence of a material fact in issue. It is not secondary or inferior to direct evidence; in many cases, it is the best evidence that can be obtained. Circumstantial evidence presents most of the problems concerning the relevance, remoteness, and prejudicial effect of evidence. Direct evidence tends to prove or disprove a fact in issue.
The Inferential Process. Inferences are based upon unstated premises that are derived from the common experience of mankind. The more inferential steps that are required to establish the relevancy of some circumstantial evidence, the more progressively weaker the reasoning gets. It follows that we will have less confidence in the ultimate conclusion.
Character Evidence. Generally, character evidence will support a valid inference that the accused did or did not commit a specific criminal act. Evidence of a good or bad character by testimony is introduced by a competent witness as to the community reputation of the accused concerning his general character or a specific relevant character trait.
The prosecution is prohibited from introducing alleged specific acts of misconduct to prove the bad character of the accused. Unless the criminal defendant has placed his good character in issue, the prosecution may not introduce evidence of his bad character, because of the prejudicial effect this would have.
Past Criminal Record. Evidence of an accused person's past criminal record may be introduced to attack his credibility as a witness or to rebut evidence of good reputation when he puts his reputation in issue.
In addition, the criminal record may be proven to support a legitimate inference concerning the following material factors in a cases:
* Motive.
* Intent.
* Absence of mistake.
* Identity.
* Common scheme involving the commission of two or more closely related criminal acts.
The two inferences forbidden to be drawn from evidence of the accused's criminal record are:
* He as a bad character.
* He is predisposed to commit a crime.
