Capt. Michael Hinkley,
Pacific Fleet Judge Advocate Court of Inquiry Press Briefing,
Pearl Harbor (Feb. 22, 2001)
Ladies and gentlemen thank you for coming. I'd like to give you a summary of what I think the process is. We've looked at it very carefully and we think that this presentation this afternoon will be able to help you understand how the Court of Inquiry is going to be conducted.
What I intend to give you is, essentially, my personal summary of the process, the parties involved and some of the rules. Keep in mind that it's my summary of that, so if there is any conflict or any doubt between what I say and perhaps what you have seen in the official manuals, the manuals are going to control.
The Court of Inquiry is designed to get to the facts and so that appropriate recommendations can be made. It's also going to be designed to ensure that the rights of all the parties involved are protected by the process. The integrity of the process is one of the key features of the Court of Inquiry. Many of you have already heard some about a Court of Inquiry. It's an administrative fact-finding process, a formal board of investigation, and its charter is to examine the facts and circumstances surrounding the collision and to come up with findings of fact, opinions and recommendations, and provide those to Adm. Fargo, so that he make take appropriate action, as necessary. In the court, testimony is going to be given under oath. All of the proceedings, except for the arguments of the counsel for the parties, will be verbatim and a record of the proceedings will be maintained so that a report can be provided to Adm. Fargo when it's over.
We have Courts of Inquiry, we have had them since 1786 based upon Articles of War. Currently, the legal basis is under Article 135 of the Uniform Code of Military Justice. Any officer who can convene a General Court Martial, has the authority to convene this Court of Inquiry, the administrative fact-finding investigation. Generally, it is used for major incidents, and that is a term that is defined under our manual. It is generally an extraordinary incident occurring during the course of official duties resulting in multiple deaths, substantial property loss or substantial harm to the environment, where the circumstances suggest a significant departure from the expected level of professionalism, leadership, judgment, communication, state of material readiness or other standard.
As I said, the court will make findings of fact, based upon the evidence presented and the testimony received. They will form opinions and they will make recommendations to Adm. Fargo. It will be a public forum unless there is some reason to close any or all of the proceedings, and the president may clear the court at any time during proceedings for this purpose. Essentially, the president of the court, Vice Adm. Nathman, will control the proceedings. It is an independent, fact-finding body. Military witnesses, they may be ordered to appear. Civilian witnesses may be subpoenaed to appear.
Now let me talk a little bit about the personnel involved in the Court of Inquiry. It must have at least three commissioned officers. Right now, it has the three commissioned officers that you know about. All of the members are normally senior to those people who are designated as parties at the Court of Inquiry, and the senior member is referred to as the president of the court. As I said, that is Vice Adm. Nathman. He controls the proceedings. He controls the order in which evidence is received. He controls the order in which witnesses are called to testify.
There will be technical advisors to the court. There will be legal advisors to the court. An advisor is not a voting member of the court, but someone who is there to help the court get through the fact-finding process. Our Judge Advocate Generals manual allows for the participation for what's called "non-parties," who have an interest in the subject under inquiry. This permits the participation of a foreign military officer for example, and that is the case with Rear Adm. Ozawa, from the Japanese Maritime Self Defense Force, who has been appointed as an advisor to the Court of Inquiry, and a non-voting member. He will be a full participant in the proceedings, but he will not vote on the final findings, opinions or recommendations that the Court of Inquiry comes up with. He will be a full participant in everything except for the final vote.
As I said, there will be legal advisors for the court. Let me point out one particular difference that you may not be aware of. Legal advisors for the court, because this is an administrative, fact-finding body, are not advocates for one side or the other. They are not, in particular, prosecutors. Their job is to present the evidence impartially so that the Court of Inquiry members can consider it in doing their duties. Again, the legal advisors, called "counsel to the court," are not prosecutors. They are not here to prosecute anything. They are here to make sure all of the evidence gets in front of the Court of Inquiry so that they can do their job.
There will be a court reporter, someone who is in charge of recording the proceedings. The members, counsel, court reporter and any interpreters who are involved will take an oath to perform their duties faithfully and carry them out to the best of their abilities. As I said earlier, I believe, all witnesses will testify under oath.
Let me spend a couple of minutes on the rights of a party. The term "party" is a special term under our manual of the Judge Advocate General, and it's defined in that manual. Basically, a party is someone at a Court of Inquiry whose conduct is either the subject of the inquiry or has a direct interest in the inquiry. In this case three parties have been designated, as you already know; the commanding officer, the executive officer and the OOD (officer of the deck).
The court, as the fact-finding process progresses, has the authority to designate additional parties, if it sees fit. That is a decision that the court would make as the facts are presented and as the evidence is received. When parties have been designated, in this case as I said three of them, they have a number of legal rights. A party is entitled to be represented by counsel, either military counsel or civilian attorneys. The military counsel is provided free of charge. The civilian counsel is provided at the expense of the parties involved if they so choose to hire civilian counsel. As you know, in this case the commanding officer has retained civilian counsel to assist him as a party in the proceeding. The party has the right to due notice, to know that he or she is a party, to present information to the court, to request the production of witnesses or evidence and to cross-examine witnesses as they appear before the Court of Inquiry.
Generally speaking, since this is not a judicial proceeding, and this is not a court martial, the military rules of evidence generally do not apply. However, counsel for the parties may object to certain evidence if it is offered, and the president generally will note the objections for the record. However, in certain limited cases the president may also rule on the objections, and may deem certain evidence to be inadmissible. Of note, evidence resulting from privileged communications, for example, between a party and his or her counsel. Evidence that would be taken in violation of one's right against self-incrimination would be objectionable, as would any evidence that the court deems irrelevant to the proceedings. That would be objectionable and the president may choose to exclude that evidence.
We talked about the rights to counsel. A party at a Court of Inquiry may, but is not required, to testify. A party may also submit a voluntary unsworn statement for the court to consider. As I said, there are three members to the Court of Inquiry as well as the Japanese admiral, (Rear) Adm. Ozawa. A party to the proceedings may challenge any member that is to question the individual as to his sitting on the Court of Inquiry. A challenge must be based on a reasonable cause. An example of that would be if there was any evidence of bias, prejudice or having made a prejudgment on any issue before the court. The counsel for the parties will be allowed to question the members to establish their impartiality. And if a challenge is made, the members will vote on the challenge. It is possible that if a member were challenged successfully, that member would be removed. In this case that would mean that you would not have three members. That would be below quorum and the convening authority, Adm. Fargo, would then appoint another member to the panel.
Let me talk a little bit about the basic procedures. It may at times resemble what you have seen in courts, in judicial proceedings, but it is very different. The personnel, as I said, will be sworn to do their duties. Witnesses and evidence will be presented. Normally, the counsel for the court will call the witness to the stand, swear the witness in and depending upon how the president of the court chooses to proceed, either the counsel for the court, or the president, or other members, will ask questions of the witness. Counsels for the parties will be allowed to cross-examine these witnesses to test the basis for their direct examination, and the questioning could go back and forth between counsel for the court and the members and counsel for the parties until the facts are fully explored, and then they move on to the next witness.
In addition, because this is designed to be a full and open hearing, and because it is designed to make sure all the facts are out so that recommendations can be made, if a witness feels that the counsel or the members have not asked him or her enough questions, the witness is allowed to add information that the witness believes is important for consideration.
I would anticipate that, given the fact that this is a three-member Court of Inquiry, that there are three designated parties, that there are three different counsel for the parties, that this may be a drawn-out period of questions and answers.
In addition to the taking of testimony and witnesses, the president of the court may allow a request to visit the scene, if the court believes that that is necessary to get to a full and fair accounting. Concerning the witnesses, they will normally be excluded from the hearing until they are called to testify. Once they are called to testify, they may stay in and listen to the rest of the proceedings. The reason for that is to maintain the independence of the testimony of any witness, and make sure that the witnesses' testimony is not influenced by what he or she might have heard from other witnesses who testified at this Court of Inquiry. During the process of the court, the president of the court may grant recesses or continuances. He may adjourn the court for short periods of time. If there is any recess or more particularly an adjournment or a continuance for more than three days, the president will inform the convening authority of that fact.
When all of the evidence has been gathered, the parties and counsel will be allowed to make closing arguments. And again, let me point out a difference between a judicial court and this administrative Court of Inquiry. As I said and as I hope to emphasize, counsel for the court are not advocates. They're not prosecutors. So when I say the counsel will make argument, the counsel for the court must present their summation in an impartial manner. It is not an argument for prosecution or an argument for any particular result. Their argument will and must be, as part of our process, impartial.
At the conclusion of the Court of Inquiry all the evidence will be received, all the statements will be in, the witnesses will be heard and the arguments will have been received by the court. The court will close. At that point, the members will deliberate privately on what they've received. They will follow the instructions they have received in the appointing order, which established the Court of Inquiry, and eventually they will produce a report. The vote will be in closed session. That means the voting will be done by the three U.S. naval members only. As I said before, (Rear) Adm. Ozawa will be a non-voting member and advisor to this court.
Once they have voted on their findings of fact, their opinions and their recommendations, the report will be authenticated by the president, as well as the counsel for the parties to ensure that it is an accurate record, and that will be forwarded up to Adm. Fargo. The counsel for the court, again, not prosecutors and not advocates, are not allowed to participate in any of the deliberations of the court members. Those are private deliberations. The report of findings of fact, opinions and recommendations become part of the record of this Court of Inquiry.
If any of the members are not unanimous or are not in agreement with the other members, that individual member will submit what's called a "minority report," stating why he disagrees with the other two voting members. And the reason for that is because they are not making final decisions or rendering any judgments. They are making opinions and recommendations based upon findings of fact, and the minority report is helpful to the convening authority, in this case Adm. Fargo, so he understands the full extent of the discussion concerning the evidence and the report that has been submitted to him. No person officially connected to the inquiry shall disclose the findings, opinions or recommendations of the court or of any of the individual members without the prior approval of the convening authority. And no copies of the report of the proceedings may be provided to any person, including the parties, without the approval of the Secretary of the Navy and the Judge Advocate General of the Navy.
When this report is compiled and submitted, it will be sent as I said to Adm. Fargo in this case, to decide what, if any, further action is appropriate. As a general rule, that decision is expected to be made in under 30 days. And that is a guideline under the manual.
Ladies and gentlemen what I have given you basically is an outline, which I hope will help to inform you of the process that the Court of Inquiry is going to go through. And I hope you can understand a little bit better about the process that we used in this case. Again this is not a trial; this is in impartial fact-finding process; a fact-finding investigation, essential to discovering the circumstances of an event, so that any appropriate action can be taken and essential to ensure that the legal rights of any party are protected. That concludes the summary of my presentation.
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