The Accomplice in American Military Law

[Colonel James A. Young III, USAF]{.smallcaps}[^1]

*Soldier, scoundrel, scumbag, creep,*

*Doper, pusher, pigeon, cheat,*

*Actor, artist, liar, queer,*

*Testified before us here.*[^2]

**I. INTRODUCTION**

For almost 50 years, military appellate courts[^3] have been trying to
convince us that the law of accomplices[^4] is "well established"[^5] or
"well settled."[^6] While the concept that accomplices may have an
interest in testifying that warrants special scrutiny by the factfinder
is well settled, almost every other aspect of the law, from the
definition of the term to the need for corroboration and instructions,
has undergone significant modification. The numerous changes to the
*Manual for Courts-Martial*, the many reported appellate cases, and the
not infrequent dissents, are indicative of the lack of clear and
unambiguous guidance on the subject.

This article will trace the development of the law of accomplices from
early common law to its present status in the military and examine the
rationale for the current rule. It will reveal how the appellate courts
usurped the President's authority to establish the law of accomplices,
suggest changes to the way military courts handle accomplice testimony,
and propose additions to the Rules for Courts-Martial to clarify the
rules.

**II. HISTORICAL BACKGROUND**

A.  **The Common Law**

Criminal trials today bear little resemblance to those of yesteryear. At
early common law, the accused was not permitted to be represented by
counsel in felony cases[^7] or to call witnesses in his own behalf.[^8]
The accused represented himself by addressing the jury, and speaking and
answering questions as witnesses presented themselves; however, he was
not placed under oath, and the courts expressly rejected the notion that
such statements could be considered as evidence.[^9] By the middle of
the 1600s, the accused was permitted to call witnesses, but these
witnesses were not permitted to take the oath until 1695 in treason
cases and 1701 in other felony cases. Once defense witnesses were
permitted to testify under oath, judges could still disqualify them from
testifying if they had an interest in the outcome of the case.[^10]

At early common law, both in England and the United States, convicted
felons and persons having an interest in the outcome of a case were
incompetent to testify in court.[^11] Much of the history of this
disqualification is obscure and inextricably intertwined with
developments of several other features of the criminal law. While there
is no evidence to pinpoint when disqualification of interested persons
as witnesses in criminal cases began, it appears to have been adopted
from civil law doctrine in the latter part of the 16th and early part of
the 17th centuries.[^12] Commentators suggest the rule was based on the
belief that persons having an interest in a case would be more likely to
lie than disinterested persons. Furthermore, at the time, courts were
more likely to evaluate a party's case on the number of witnesses the
party could muster rather than the quality of the testimony presented.
It was thought to be unfair to have an unbiased witness's testimony
cancelled out by one who had an interest in the outcome of the
case.[^13]

Such a rule of incompetency of interested persons would have had dire
consequences for Crown prosecutions, especially in cases alleging
treason or conspiracy, in which coconspirators are often the primary
source of incriminating evidence. By judicial practice, and later
pursuant to statutes, accomplices who were not indicted, or who were
indicted in a separate indictment, were not disqualified; neither was a
person who had been charged in the same indictment but ceased to be a
party by the time he testified (by virtue of a *nolle prosequi*, an
acquittal or discharge, or a conviction).[^14]

In a practice known as "approvement," a person accused of committing a
felony could exonerate himself by accusing others of participating in
the offense and seeing that they were convicted.[^15] The "approver" was
taken out and immediately hanged if he failed to convict those he
accused of participating in his felony, but that was no more than he
could expect if he were convicted. Furthermore, the "approver" had
little fear of being contradicted because the persons he accused could
not be represented by counsel, were disqualified from taking the stand
to deny or explain their actions, and could not call witnesses to
support their innocence. Under these circumstances, it "was natural,
lawful, and just" that judges began commenting to their juries "sharply,
and often indignantly, denouncing the worthlessness of the unconfirmed
testimony of a witness who acknowledged himself a knave, and that he was
testifying against his comrades in the hope of obtaining by this means a
pardon for his own crimes."[^16] In England and most jurisdictions in
the American colonies, this was accepted as no more than the judge's
obligation "to assist the jury, before their retirement, with an
expression of his opinion (in no way binding them to follow it) upon the
weight of the evidence."[^17] It was not a rule of evidence, and the
trial judge's omission of such a caution was not a ground for a new
trial.[^18]

Most likely as a result of the colonial experience, in which judges were
often puppets of the Crown, starting in 1796, state legislatures began
passing statutes enjoining judges from commenting upon the weight to be
given to the evidence.[^19] In order to bring the problems of accomplice
testimony to the attention of the jury, American courts had to turn the
English practice of commenting upon the weight of accomplice testimony
into a rule of evidentiary law.[^20] While the rule against summing up
the evidence apparently never applied in federal[^21] or military
courts,[^22] it appears that, to a great extent, judges in those courts
have adopted the state practice of not summing up.[^23]

The incompetency of the accused persisted much longer than the other
disqualifications (conviction of a felony and interest in the outcome of
the case), but began to disappear in the United States around the end of
the American Civil War.[^24] Although the accused now could defend
himself in court under oath, be represented by counsel, and call
witnesses in his defense, judges continued to instruct on the unreliable
nature of accomplice testimony.

B.  **The American Military Experience**

In the American military, a witness was not incompetent to testify
merely because he was the accused's accomplice. If the prosecution
called upon the accomplice to testify against his co-accused in a joint
trial, a *nolle prosequi* was entered or if not, and the witness
testified in good faith, the court-martial order promulgating the action
announced that further proceedings against the accomplice were
discontinued.[^25] While the accused was entitled to testify on his
behalf since at least 1878,[^26] the testimony of accomplices was still
viewed with caution, and as a general rule, "such testimony \[could
not\] safely be accepted as adequate for \[conviction\] unless
corroborated by reliable evidence."[^27]

By 1921, corroboration apparently was no longer required: "While in
Federal courts and courts-martial corroboration of the testimony of an
accomplice need not be required, yet from the character of the
associations formed the uncorroborated testimony of an accomplice should
be received with great caution."[^28]

The wording of the rule was modified slightly in 1928: "A conviction may
be based on the uncorroborated testimony of an accomplice, but such
testimony is of doubtful integrity and is to be considered with great
caution."[^29]

In 1949, the rule was rewritten again.

> \[A\] conviction *should not* be based on the contradictory, uncertain
> or improbable testimony of but one witness if the contradiction or
> other fault is not explained. A conviction may be based upon the
> uncorroborated testimony of an accomplice, but such testimony, even
> though apparently credible, is of doubtful integrity and is to be
> considered with great caution.[^30]

Just two years later, President Truman prescribed a new *Manual for
Courts-Martial* to reflect the changes brought about by the enactment of
the Uniform Code of Military Justice.[^31] Based on previous Army
appellate decisions, the new *Manual* "placed accomplices and victims of
sexual offenses in the same category as far as credibility was
concerned."[^32] Specifically, the manual read:

> \[A\] conviction *cannot* be sustained solely on the
> self-contradictory testimony of a particular witness, even though
> motive to commit the offense is shown, if the contradiction is not
> adequately explained by the witness in his testimony. Also, a
> conviction cannot be based upon the uncorroborated testimony of an
> alleged victim in a trial for a sexual offense, or upon the
> uncorroborated testimony of a purported accomplice in any case, if
> such testimony is self-contradictory, uncertain, or improbable. The
> uncorroborated testimony of an accomplice, even though apparently
> credible, is of doubtful integrity and is to be considered with great
> caution.[^33]

The last sentence in this version is reminiscent of the language in the
1921 *Manual* and made it clear that only uncorroborated accomplice
testimony was to be treated with caution.

In 1963, in *United States v. Winborn*,[^34] a divided Court of Military
Appeals rewrote the law of accomplices in military practice. Winborn was
convicted of two instances of theft of packages from the mail. The
prosecution's evidence consisted of the testimony of Humphries, a fellow
postal clerk, who admitted that he participated with Winborn in the
thefts, and the accused's confession, which substantiated the testimony
of the witnesses. The defense counsel requested an instruction that "the
testimony of an accomplice is to be regarded with suspicion and be
carefully scrutinized before accepting it." The law officer[^35]
refused, ruling that such an instruction was only necessary if the
accomplice's testimony was uncorroborated, and in this case, the
accused's confession corroborated the accomplice's testimony. The Court
of Military Appeals was concerned that the only corroboration for the
confession was the accomplice's testimony and the only corroboration of
the accomplice's testimony was the confession.[^36] The court held that
it was prejudicial error for the law officer to refuse to give the
requested instruction because "Humphries was an admitted accomplice, the
only witness against the accused, and *the requested instruction was
couched in the proper language*."[^37] The basis for the court's
decision is not clear. The court may have been saying no more than that
the accused's pretrial confession was not sufficient corroboration for
the judge to avoid giving the accomplice instruction. But, by approving
of the defense proposed instruction, the court changed one of the basic
tenets of military accomplice law, and after *Winborn*, even the
corroborated testimony of an accomplice became suspect.

The 1969 *Manual* adopted the changes brought about by *Winborn* and its
progeny:[^38]

> \[A\] conviction cannot be based solely upon self-contradictory
> testimony given by a witness other than the accused, even if a motive
> on the part of the accused to commit the offense charged is shown, if
> the contradiction is not adequately explained by the witness in his
> testimony. Also, a conviction cannot be based upon uncorroborated
> testimony given by an alleged victim in a trial for a sexual offense
> or upon uncorroborated testimony given by an accomplice in a trial for
> any offense, if in either case the testimony is self-contradictory,
> uncertain, or improbable. *Even if apparently corroborated and
> apparently credible*, testimony of an accomplice *which is adverse to
> the accused* is of questionable integrity and is to be considered with
> great caution. . . *. When appropriate, the above rules should, upon
> request by the defense, be included in the general instructions of the
> law officer or the president of a special court-martial*.[^39]

In 1980, the military law of evidence underwent substantial changes.
President Carter replaced Chapter XXVII of the *Manual*, a narrative
summation of the evidentiary rules, with the Military Rules of
Evidence.[^40] The new rules were based on the Federal Rules of
Evidence[^41] which do not mention accomplice testimony. Furthermore,
the rules set up a hierarchy of sources for military evidentiary law. If
the *Manual*, the Uniform Code of Military Justice, and the rules of
evidence fail to provide a governing standard, then, insofar as
practical and not inconsistent with those three sources, courts must
apply the rules of evidence generally recognized in the trial of
criminal cases in the United States district courts. Only after all four
sources are exhausted can a court resort to the common law.[^42]

The President made a conscious decision to retain specific rules
regarding accomplice testimony by moving them, almost verbatim, from the
evidence chapter to a chapter dealing with procedural matters.[^43]

> **Findings; General; Weighing Evidence**: Also, a conviction cannot be
> based upon uncorroborated testimony given by an accomplice in a trial
> for any offense if the testimony is self-contradictory, uncertain, or
> improbable. Even if apparently corroborated and apparently credible,
> testimony of an accomplice which is adverse to the accused is of
> questionable integrity and is to be considered with great caution.
> When appropriate, the above consideration should, upon request by the
> defense, be included in the general instructions of the military judge
> or the president of a special court-martial without a military
> judge.[^44]

In 1984, President Reagan promulgated a new *Manual*.[^45] The expressed
purpose of this revision was to thoroughly review military criminal
practice, bring it up to date and conform it to federal practice where
practical, and adopt a rule, as opposed to a narrative format. The Rules
for Courts-Martial (hereinafter R.C.M.), are based, where possible, on
the Federal Rules of Criminal Procedure.[^46] As with the federal rules,
the military rules themselves do not mention accomplices. The only
specific reference to accomplices appears in the discussion to one of
the rules: "Findings of Guilty may not be based solely on the testimony
of a witness other than the accused which is self-contradictory, unless
the contradiction is adequately explained by the witness. Even if
apparently credible and corroborated, the testimony of an accomplice
should be considered with great caution."[^47]

III. **WHO ARE ACCOMPLICES?**

Since at least 1921, the *Manuals* *for Courts-Martial* had suggested
that uncorroborated testimony of an accomplice should be received with
great caution. However, nowhere in the *Manuals* was the term
"accomplice" defined. During the first few years of its existence, the
Court of Military Appeals was reluctant to decide upon a definition.
When asked to choose between competing definitions, the court declined,
finding the particular witness was an accomplice under both
definitions.[^48] The court did offer a tentative definition in 1955:
"Generally speaking, an accomplice is one who aids or abets the
principal wrongdoer in the commission of an offense."[^49]

Finally, in *United States v. Scoles*,[^50] after recognizing that
"\[t\]here is no universally accepted definition of the term
'accomplice,'" the court chose a very broad definition. "\[A\] witness
is an accomplice if he was culpably involved in the crime with which the
accused was charged."[^51] In a later case, the court further explained:

> We measure the witness's involvement as an accomplice generally by the
> rule of whether he is subject to trial for the offense with which the
> accused is charged. While the various opinions speak in terms of
> indictment, conviction, being culpably involved, or similar phrases,
> the real issue presented is whether the evidence establishes that the
> witness was subject to criminal liability for the same crime as the
> accused. An affirmative answer establishes that he is an accomplice,
> while, with some exceptions, a negative answer determines that he is
> not.[^52]

This is the test most often cited in recent cases.[^53]

Having an established definition has not been a panacea. The courts have
continued to struggle in applying that definition to particular cases.
While looking to civilian case law, the military courts have, on
occasion, reached contrary results based on the broader military
definition and the fact that many offenses are prosecuted under one
statute--Article 134.[^54] For example, in civilian law, bribe-givers
and bribe-takers are not regarded as accomplices of each other, and
neither are persons who buy narcotics and those who sold the narcotics
to them.[^55] In military practice, they are accomplices.[^56]

On the other hand, a witness charged with the same offense as the
accused, named as a co-actor on the accused's charge sheet, and who was
present at the scene of the offense, is not necessarily an accomplice
because a witness must be presumed innocent until shown by the evidence
to be an accomplice.[^57] But, he cannot escape accomplice status merely
because he is not amenable to military jurisdiction.[^58] Likewise, the
wife of an accomplice, "who, although aware that her husband plans to
commit a crime but who does not enter into such planning or in the
actual perpetration of the crime is not an accomplice."[^59] An
individual who acts under the auspices of a law enforcement organization
is not criminally responsible for his participation in the crimes with
which the accused was charged; therefore, he is not an accomplice.[^60]
A thief and the receiver of stolen property are not accomplices unless
they enter into a prior agreement for the thief to steal the property
and for the other to receive it.[^61]

The courts have had the greatest difficulty resolving cases in which
subordinates are called to testify against their military superiors. For
the most part, they have held that subordinates are accomplices of their
superiors. In *United States v. Urich*,[^62] the accused was charged
with wrongfully and unlawfully accepting compensation for performing his
official duties, paying mustering out pay. He notified four airmen of
delays in the payment of the mustering out pay which he could remedy if
they paid him a sum of money. All four paid him, but one did so with
marked money provided by the Air Force Office of Special Investigations.
As it was not necessary for the resolution of the case, the Air Force
Board of Review assumed *arguendo* that all four airmen were
accomplices.[^63]

In *United States v. Bey*,[^64] the Court of Military Appeals was asked
to decide whether a trainee, Private Nelson, who paid for a pass to
leave the post, was an accomplice of the platoon sergeant who received
the payment. Nelson knew that two of his friends had paid for passes.
Nelson testified that after he received his pass, the accused asked for
a gift of money. The court noted that Nelson had received training on
the proper procedure for obtaining a pass and was aware that he was
committing an offense if he paid for one. Believing the law of bribery
to be analogous, the court decided that, as both the accused and Nelson
would be chargeable under Article 134, Nelson was an accomplice.[^65]
Judge Latimer dissented, concluding that the trainee was not an
accomplice, but a victim whose "cooperation can hardly be described as
voluntary. He was told by his superior noncommissioned officer what to
do and he complied. That is not the cooperation which I envisage makes a
person a criminal."[^66]

A year later, the Court of Military Appeals reviewed the conviction of a
second lieutenant charged with the premeditated murder of a Korean
national.[^67] The Korean national had been captured by Air Police
guarding an ammunition dump. The accused told Airman First Class Kinder
to take the victim up the hill and shoot him. Kinder did so, and
testified against the accused. The court, without discussion, held that
Kinder was an accomplice.[^68]

In *United States v. Wiley*,[^69] the Court of Military Appeals
recognized the coercive nature of the superior-subordinate relationship.
Platoon Sergeant Wiley instructed Private Carter, a trainee, to collect
money from each trainee in the platoon for the purchase of barracks
supplies. Carter collected and gave approximately \$100 to the accused.
On other occasions, Wiley suggested to members of his platoon that he
needed money.[^70] Collections were taken up and the money provided to
Wiley. Although citing *Bey*, the court reached the opposite conclusion.
It found that the trainees were not accomplices because they were merely
responding to pressure from Sergeant Wiley and did not benefit from the
collections.[^71]

More recently, the superior-subordinate accomplice issue has been raised
in two Army fraternization cases. In *United States v. Adams*,[^72] the
Army Court of Military Review examined the status of a female trainee
subordinate who testified that she had socialized and had sexual
intercourse with the accused, a noncommissioned officer responsible for
her training, in violation of a general regulation which prohibited
fraternization of permanent party personnel and trainees. After
recognizing that the proscription against such fraternization is based
on "the tender age, military naivete, and overall vulnerability of
trainees, as well as the requirement to maintain an atmosphere of
impartiality toward trainees,"[^73] the court nevertheless found the
witness to be an accomplice. "Regardless of the underlying rationale for
the proscription, the regulation does not reveal any distinction in
culpability among those who violate it."[^74]

In a similar case,[^75] Staff Sergeant McKinnie, an instructor, was
convicted of violating a general regulation prohibiting instructors and
students from fraternizing. At trial, three female students and another
instructor, who participated in the parties with the female students and
the accused, testified against McKinnie. The military judge instructed
the members that the other instructor was an accomplice, but refused to
do so as to the three trainees, claiming they were victims.[^76] The
Court of Military Appeals disagreed, ruling that, by the explicit terms
of the regulation, students were also responsible for acts of
fraternization. Therefore, the students were accomplices.[^77]

IV. **WHO DECIDES IF THE WITNESS IS AN ACCOMPLICE?**

In the majority of jurisdictions, if the evidence clearly establishes
that a witness is an accomplice, the judge determines that the witness
is an accomplice as a matter of law, and so instructs the court. When
the evidence is in dispute, the question of whether a witness is an
accomplice is for the factfinder to resolve.[^78] The military courts
adopted that position in numerous cases, but refused to find error when
the law officer or military judge left the question for the court
members to determine despite undisputed evidence that the witness was an
accomplice.[^79]

In 1992, without overruling or even citing previous cases to the
contrary, the Court of Military Appeals specifically "reject\[ed\] the
notion that the military judge should 'label' a witness an accomplice as
a matter of law."[^80] The court claimed that attaching a label to the
testimony implies that the judge believes the witness committed a crime
with the accused. Thus, "whenever the evidence raises a reasonable
inference that a witness may have been an accomplice or claims to have
been an accomplice of the accused," the issue should be presented to the
factfinder for resolution.[^81]

### CORROBORATION

Within the United States, the rules for weighing accomplice testimony
fall generally into three categories. Under common law, and federal law,
a conviction may be based solely upon the uncorroborated testimony of an
accomplice. On the other hand, many states have passed statutes which
require corroboration of accomplice testimony before it can be
considered at all.[^82] The military law fell somewhere between these
two theories: A conviction could be based on the uncorroborated
testimony of an accomplice as long as it was not self-contradictory,
uncertain, or improbable.[^83]

Despite this concern for corroboration, neither the *Manual* nor the
early decisions of the Court of Military Appeals provided a definition
of the term in relation to accomplice testimony. So, the military
appellate courts borrowed a definition from civilian case law. The
corroboration "must be independent of the accomplice's testimony and
connect the accused with the commission of the offense."[^84]

Although corroboration is only necessary if the accomplice's testimony
is "self-contradictory," "uncertain," or "improbable," the appellate
courts have spent little time evaluating those terms or the type of
evidence required to establish them. Instead, the courts have tended to
review the totality of the evidence, and, in conclusory statements, held
that the evidence did or did not meet the standard.[^85] Appellate
courts reviewed the offenses with which the accomplice could be charged,
his character, his previous statements, his testimony, and the type of
deal that was being offered by the prosecution in exchange for his
testimony. Then, the court would ask if a reasonable factfinder could
have found that the accomplice's testimony was not self-contradictory,
uncertain, or improbable.[^86]

The Army Court of Military Review was the first to take a different
approach. In *United States v. McPherson*,[^87] it was asked to set
aside the accused's conviction because the testimony of the two
accomplices differed as to some of the details, and at least one of them
had made contradictory, pretrial, sworn statements. The court declined
to provide the accused any relief, holding that "the self-contradictory
factor relates solely to the testimony of the witness during the
trial."[^88] By eliminating the need to consider the accomplice's prior
inconsistent statements and reputation for truth and veracity, this test
made it much less likely that an accomplice's testimony would have to be
corroborated. So far, the Court of Military Appeals has found it
unnecessary to rule on this issue.[^89]

There has been considerable debate over whether the existence of
corroboration is a question for the law officer/military judge or the
court members to decide. In 1955, the Court of Military Appeals
suggested the matter should not be submitted to the members.
Corroboration is a technical concept that is difficult to apply, is
beyond the expertise of most court members, and would only serve to
confuse the members. Under this view, the law officer would determine
whether corroboration existed. If it did not, he would instruct the
court that, as a matter of law, they must acquit. If he found
corroboration, the case would go to the court members. After discussing
the issue in some detail, however, the court decided that it did not
need to resolve the issue in that particular case.[^90] The Air Force
Court of Military Review, however, ruled that the existence of
corroboration is a matter for the military judge.[^91]

Another tenet of civilian law adopted by the military is that one
accomplice cannot corroborate the testimony of another accomplice.[^92]
Does that mean that an accused's pretrial statements are not sufficient
to corroborate an accomplice's testimony? In *United States v.
Allums*,[^93] the Court of Military Appeals suggested the accused's
pretrial statement corroborated the accomplice's testimony, although the
court seemed to rely more on the accused's trial testimony. Eight years
later, in *United States v. Winborn*,[^94] the court expressed its
reservations.

> Here we have a situation reminiscent of a circle. Winborn could not be
> convicted on his uncorroborated confession and the testimony of the
> accomplice supplied that corroboration. But this testimony is suspect
> and had the court not believed it, it could not then have considered
> the confession for the record would have been devoid of any evidence,
> direct or circumstantial, that the offense charged had probably been
> committed by someone.[^95]

By 1978, the Court of Military Appeals apparently overcame its
reservations, at least when the defense failed to request an accomplice
instruction.

> While one may argue whether the confession corroborates the
> accomplice's testimony or the accomplice's testimony establishes the
> prerequisite for the admission of the confession, such circuity
> \[sic\] does not preclude the admission into evidence of each. . . .
> \[T\]he confession is a proper factor in evaluating whether the "plain
> error" exception should be applied.[^96]

**VI. INSTRUCTIONS**

What instructions must be given are at the heart of the accomplice
issue. Understandably, the accused wants the military judge to caution
the court members about the credibility of the prosecution's witnesses,
but not to do so for defense witnesses. In this section, we will examine
the evolution of the case law requiring military judges to give
accomplice instructions, the developing revolt from the early decisions,
and the rules governing instructions for defense witnesses.

## **A. The Requirement for Instructions**

Initially, under the UCMJ, the service appellate courts refused to
require that accomplice instructions be given, even if raised by the
evidence and requested by the defense.[^97] These decisions were
supported by federal precedent[^98] and the 1951 *Manual*.[^99] The
service appellate courts recognized that it would be best to give the
instruction when appropriate,[^100] but were reluctant to impose
additional instructional rules which "must perforce apply also to
special courts-martial, where the president is, more often than not,
without legal training."[^101] As the service appellate courts could
"affirm only such findings . . . as it finds correct in law and fact,"
they could apply the rules governing accomplice testimony on
appeal.[^102]

The Court of Military Appeals was not as reluctant. In *United States v.
Bey*,[^103] the Court of Military Appeals found it was prejudicial error
"for a law officer to refuse, in a proper case, a request for an
instruction on accomplice testimony, which reasonably puts him 'on
notice' that the issue is essential to a proper finding."[^104] "To hold
otherwise would destroy the very purpose of the rule on accomplice
testimony."[^105] The court refused to accept a short instruction on
witness credibility as sufficient to place the court members on notice
that they should view the accomplice's testimony with great
caution,[^106] and specifically rejected the federal practice which
required that the defense requested instruction be a correct statement
of the law.[^107] This did not put the issue to rest.

Six months later, in *United States v. Allums*,[^108] the Court of
Military Appeals upheld the conviction of a confessed distributor of
marijuana despite the law officer's refusal to give the two defense
requested accomplice instructions.[^109] Citing *Bey*,[^110] the court
found error in the failure to give the instruction concerning the need
for close scrutiny of an accomplice's testimony, but a lack of prejudice
to the accused due to the compelling evidence of guilt.[^111] Although,
the accomplice's testimony was "uncertain" as to some matters, the court
held, as a matter of law, that it was corroborated.[^112] Judge Brosman,
writing for the court, suggested that the *Manual* provision concerning
corroboration was probably intended to be applied only by the law
officer and the appellate courts, not the court members.[^113] Under
this view, the law officer would determine whether the testimony was
corroborated. If it was, he would submit the case to the court members;
if it was not, he would direct the court to return a finding of not
guilty.[^114]

In 1963, after Judges Kilday and Ferguson replaced Judges Brosman and
Latimer, the Court of Military Appeals held that it was prejudicial
error for the law officer to refuse to give a defense requested
instruction on the credibility of accomplice testimony, despite the
presence of corroboration in the form of the accused's pretrial
confession.[^115] The majority reasoned that, although the admissibility
of the confession was for the law officer to decide, the credibility of
a government witness was for the court to assess.[^116] The court
adopted the federal rule for evaluating the refusal of the law officer
to give a defense requested instruction. "Refusal 'may be regarded as
reversible error if, but only if, (1) it is in itself a correct charge,
(2) it is not substantially covered in the main charge, and (3) it is on
such a vital point in the case that the failure to give it deprived
defendant of a defense or seriously impaired its effective
presentation.'"[^117]

In *United States v. Stephen*,[^118] the Court of Military Appeals went
even further. It reversed the accused's larceny conviction because the
law officer failed to give an accomplice instruction even though the
defense never requested such an instruction. While emphasizing the
general rule that the absence of a request for special instructions
precludes raising this issue on appeal, the court found an accomplice
instruction "of vital importance" where the accused was connected to the
offense by the testimony of only one witness-accomplice.[^119] The court
held that, under the circumstances of this case, it was plain error--a
miscarriage of justice--for the law officer to fail to give the
accomplice instruction.[^120] The court brushed aside the prosecution's
contention that, when an accused takes the stand to deny his guilt, the
defense may not want the law officer giving an accomplice instruction
because it suggests to the court members that the law officer believes
the accused was implicated.[^121]

Although courts still paid due homage to the general rule that failure
to request a special instruction waived the issue on appeal, the
exceptions began to overwhelm the rule. In most cases, the accomplice is
either the sole evidence against the accused or is corroborated only by
the accused's confession. In *United States v. Lell*,[^122] the Court of
Military Appeals reversed the accused's conviction for receiving stolen
property because the law officer failed *sua sponte* to instruct on the
credibility of accomplice testimony. Despite independent evidence that
the items were stolen and a pretrial statement in which the accused
admitted receiving the stolen property, the court held that the
testimony of the accomplice in this case was of such "vital importance,"
that an instruction was required.[^123]

Having won an almost *per se* requirement for a *sua sponte* instruction
on accomplice credibility, defense counsel turned their attention to an
instruction on corroboration. In *United States v. Newsom*,[^124] the
law officer gave an instruction which cautioned the court members on the
credibility of accomplice testimony.[^125] Despite the repeated urging
of the defense counsel, he refused to instruct the court on
corroboration.[^126] The Air Force Board of Review noted that the "Court
of Military Appeals has repeatedly expressed reservations as to whether
this rule is an appropriate matter upon which to instruct a
court-martial but has not resolved the question."[^127] The board
assumed, without deciding, that the instruction would be required in
appropriate cases, but found no such requirement in this case because
the testimony was not self-contradictory, uncertain, or improbable, and
the accomplice's testimony was corroborated.[^128] In another case, a
defense attack upon the law officer's failure to *sua sponte* instruct
on the corroboration prong failed as well since there was no conflict in
the testimony, there was some corroboration, and the testimony was not,
in its essential aspects, self-contradictory, uncertain, or
improbable.[^129]

The 1969 *Manual* clarified the requirement for instructing on
corroboration. "When appropriate, the above *rules* should, upon request
by the defense, be included in the general instruction of the military
judge . . . ."[^130] But, the Court of Military Appeals held that an
instruction on corroboration was not necessary if the accomplice's
testimony was not self-contradictory, uncertain, or improbable, and the
military judge had no duty to give the instruction *sua sponte* unless
the failure to do so would amount to plain error or a miscarriage of
justice.[^131]

Different panels of the Air Force Court of Military Review decided two
cases[^132] in 1977 which demonstrated the boundaries of the plain error
doctrine as applied to the accomplice instruction. Moore and Baker were
tried one day apart, before the same judge, for various illegal drug
transactions. Two of the witnesses who testified against Moore also
testified against Baker. In both cases, the judge instructed that the
two witnesses were accomplices whose testimony was "of doubtful
integrity" and should "be considered with great caution." He failed to
give the corroboration prong of the accomplice rule or advise the court
that the caution in weighing accomplice testimony applied even if it was
"apparently corroborated."[^133] The defense did not object to the
instructions or request additional instructions in either case.
Nevertheless, since the uncorroborated testimony of these two
accomplices was the sole evidence against the accused with regard to
some of the specifications, the court concluded that an unabbreviated
accomplice instruction was essential.[^134] In *Moore*, the court found
that the failure to *sua sponte* instruct amounted to prejudicial error,
and reversed.[^135] In *Baker*, the court affirmed the conviction based
on the accused's admissions on the stand while trying to establish the
defense of agency.[^136] The difference in the cases is a result of the
different manner in which we evaluate judicial admissions and pretrial
confessions. A judicial confession need not be corroborated and is not
viewed with as much suspicion as a confession made to law enforcement
agencies.

# **The Developing Revolt**

The first assault on the accomplice instruction occurred two years
before the adoption of the Military Rules of Evidence. In 1978, the
Court of Military Appeals held that, when the defense had not requested
an accomplice instruction, the appellant had made a pretrial confession,
and the military judge had pointed out to the court members some
impeaching factors relating to the accomplice's character, it was not
plain error for the military judge to fail, *sua sponte*, to give a
special accomplice instruction.[^137] Chief Judge Fletcher concurred in
the result, but asserted "that an instruction on the testimony of an
accomplice should not be given, requested or not. It is improper to call
attention to the testimony of any witness."[^138] The testimony of all
witnesses should be weighed using the general credibility instruction.

In *United States v. Young*,[^139] the Air Force Court of Military
Review confirmed its position regarding the giving of accomplice
instructions. Finding this case to be the "exceptional situation where
an accomplice is the crucial prosecution witness upon whose credibility
the ultimate question of the accused's guilt or innocence depends," the
court held it was plain error for the military judge not to give the
accomplice instruction *sua sponte*.[^140] Judge Mahoney dissented.
Citing Chief Judge Fletcher's concurring opinion in *Lee*, Judge Mahoney
questioned the necessity for, and appropriateness of, giving such a
special instruction when the court members are given a detailed
instruction on witness credibility and were selected to serve as "best
qualified for the duty by reason of age, education, training,
experience, length of service, and judicial temperament."[^141] He
asserted that the terms "plain error" and "miscarriage of justice" "are
employed by appellate courts without factfinding powers to mean 'we're
not sure we would have convicted the accused based solely on the
testimony of this weasel.'"[^142] Such an approach is not necessary in
the service appellate courts because they have factfinding powers. If
the evidence is not sufficient to convince the court of the accused's
guilt beyond a reasonable doubt, the court can set aside the
verdict.[^143]

Two years later, in *United States v. Rehberg*,[^144] another panel of
the Air Force Court of Military Review questioned the military approach
taken in dealing with accomplices. Judge Raichle reviewed the varying
rules for weighing accomplice testimony in different jurisdictions and
recommended that the military return to our roots and adopt the federal
rule as found in the 1921 *Manual*.[^145]

As we have noted, how appellate courts viewed the failure of a military
judge to *sua sponte* instruct on accomplice testimony was greatly
dependent on how they interpreted the concept of plain error. In 1986,
the Court of Military Appeals clarified the application of this concept.
In *United States v. Fisher*,[^146] without defense objection, the judge
failed to instruct the members to vote on the proposed sentences
beginning with lightest.[^147] Failure to so instruct "generally \[had\]
been regarded as plain error *per se*, warranting the Court to overlook
the absence of defense objection."[^148] But,

> "a *per se* approach to plain error review is flawed." This approach
> permits counsel for the accused to remain silent, make no objections,
> and then raise an instructional error for the first time on appeal.
> This undermines "our need to encourage all trial participants to seek
> a fair and accurate trial the first time around." Moreover, without
> reviewing the error in the context of the facts of the particular
> case, "\[it\] is simply not possible for an appellate court to assess
> the seriousness of the claimed error."
>
> In order to constitute plain error, the error must not only be both
> obvious and substantial, it must also have "had an unfair prejudicial
> impact on the jury's deliberations." The plain error doctrine is
> invoked to rectify those errors that "seriously affect the fairness,
> integrity or public reputation of judicial proceedings. As a
> consequence, it "is to be used sparingly, solely in those
> circumstances in which a miscarriage of justice would otherwise
> result."[^149]

Despite emphasizing that the military judge has a *sua sponte* duty to
instruct the members on the proper procedures for voting, after
evaluating the entire record, the court found the error did not justify
reversing the accused's conviction.[^150]

The Navy-Marine Corps Court of Military Review had the first opportunity
to apply the new plain error doctrine to accomplice testimony. In
*United States v. Oxford*,[^151] the accused was convicted of wrongfully
using and distributing cocaine based almost entirely on the testimony of
one witness, Schmidt, who had been convicted of drug offenses three
months earlier. The accused did not request, and the military judge did
not give, an accomplice instruction. After reviewing *Stephen*[^152] and
*Lell*,[^153] the court held that the military judge's failure to give
the accomplice instruction was prejudicial error.[^154] It incorrectly
cited *Fisher*[^155] as direct support for the proposition that, under
the circumstances, an accomplice instruction was relevant and
"all-important" to the accused's defense.[^156]

A year later, a different panel of the Navy-Marine Corps Court of
Military Review reached a different conclusion, doubting that failure of
the military judge to give a *sua sponte* instruction on uncorroborated
accomplice testimony would be plain error under the *Fisher* plain error
test. "The lesson of *Fisher* is that error which has been treated in
the past as plain error justifying reversal in spite of lack of timely
objection will no longer be treated as such, unless the plain error test
set forth in that case is satisfied."[^157]

In *United States v. McKinnie*,[^158] for the first time since adopting
the new plain error doctrine of *Fisher*, the Court of Military Appeals
examined the accomplice instruction issue. The military judge had given
an accomplice instruction as to an instructor who had joined the accused
in fraternizing with students, but refused to give the instruction with
regard to the students, finding they were actually victims. The court
held that, by the express terms of the regulation which the accused was
charged with violating, the students were also accomplices. But, after
examining the entire record, the court found the refusal to give the
instruction was not prejudicial error.[^159] The instructional error
"only affected the evalution of the credibility of certain witnesses,"
rather than an element of an offense or a defense; the military judge
gave a detailed instruction on evaluating the credibility of the
witness; the civilian defense attorney brought the reliability of the
trainee's testimony to the attention of the court members with skillful
cross-examination; the military judge had instructed the members that
the other instructor was an accomplice; and the three trainees gave
consistent testimony against appellant.[^160]

In a case of first impression, the Air Force Court of Military Review,
in *United States v. Sanders*,[^161] was asked to determine whether the
1984 *Manual* had eliminated the corroboration prong of the accomplice
instruction. Over a defense objection, the military judge gave an
abbreviated instruction to the effect that if the members found the
witnesses to be accomplices their testimony should be considered with
great caution. The Air Force court reviewed the history of the
instruction and determined that the instructional requirement arose from
case law. The court found that "the drafters of the MCM 1984 did not
intend to eliminate any portion of the prior instructional requirements
for accomplice testimony and that the need for instructions concerning
such testimony still arises from military case law."[^162] "If the
accomplice's testimony is corroborated, the military judge need not give
the court members instruction on corroboration or determination of
self-contradiction, uncertainty, or improbability."[^163] Since
corroboration was lacking in this case, and the court determined the
witnesses were uncertain, the failure to give the corroboration prong of
the instruction was prejudicial error.

In *United States v. Gillette*,[^164] three civilian witnesses testified
under grants of immunity that they had observed the accused using
cocaine. The military judge instructed that one of the witnesses was an
accomplice as a matter of law, but left the issue on the other two for
the court members to decide. He gave the corroboration prong of the
instruction. The Air Force Court of Military Review held it was error
not to instruct that all three witnesses were accomplices as a matter of
law, but, finding no prejudice, affirmed the accused's
convictions.[^165] The accused appealed. The Court of Military Appeals
held that it is improper for a military judge to "label" a witness as an
accomplice; the decision should be made by the court members upon proper
instruction.

> Thus we hold that, whenever the evidence raises a reasonable inference
> that a witness may have been an accomplice or claims to have been an
> accomplice of the accused, and upon request of either the Government
> or defense, the military judge shall give the members a cautionary
> instruction regarding accomplice testimony. First, the members shall
> be instructed how to determine whether a witness is an accomplice.
> Second, they shall be given the standard instruction regarding the
> suspect credibility of accomplice testimony.[^166]

In *United States v. Gittens*,[^167] the Court of Military Appeals held
that following *Gillette*, failure to request an accomplice instruction
waives the issue, although there might be some case in which the failure
of the military judge to give the instruction *sua sponte* would be
plain error.[^168]

##### **Instructions for Defense Witnesses**

The status of an accomplice-witness for the defense is different.
Although such a witness normally would not have the same expectation of
favorable treatment from the government as would a prosecution witness,
she still might have motive to falsify her testimony. For example, the
witness may want the accused to testify favorably at her trial or may be
a friend of the accused who is no longer amenable to prosecution.[^169]
Only a few military cases have addressed the issue, probably because
most judges do not give an accomplice instruction for defense witnesses.

In *United States v. McCue*,[^170] the Air Force Court of Military
Review, citing federal case law,[^171] held that it was within the
military judge's discretion to give an accomplice instruction for a
defense witness. "It is clear that an accomplice's credibility may be
suspect, regardless of whether he testifies for the prosecution or the
defense."[^172] The court set aside the accused's conviction, however,
because the military judge's instructions failed to advise the court
members to determine whether the witness was in fact an accomplice, and
there was no evidence showing he was culpably involved in all the
offenses to which he testified.[^173]

The Court of Military Appeals has addressed the issue on two occasions.
In *United States v. Allison*,[^174] the military judge proposed to
instruct the members that a defense witness was an accomplice. The
defense counsel agreed that such an instruction was appropriate. On
appeal, the court noted the conflicting authorities cited by the
parties,[^175] but declined to decide whether it was appropriate to give
an accomplice instruction for a defense witness. Instead, the court held
that even if the instruction was erroneous, the accused was not
prejudiced.[^176] "This instruction did not shift the burden of proof to
the appellant, which was the defect in the accomplice instruction
condemned by the United States Supreme Court."[^177]

In *United States v. Davis*,[^178] the accused and Barrett, who was
awaiting trial on the exact same allegations, were charged with unlawful
entry and rape. Barrett, testifying under a grant of immunity, claimed
that the intercourse they had with the complainant was consensual. The
military judge cautioned the court members about the weight to give to
Barrett's testimony. "Because the defense did not object at trial to
these instructions (which in any event do not involve elements of
offenses or defenses), appellant is not entitled to relief unless the
instruction is plain error."[^179] The Court of Military Appeals held
that even if the instruction should not have been given, the accused was
not prejudiced.

The last reported case concerning the giving of an accomplice
instruction for a defense witness was decided by the Air Force Court of
Criminal Appeals at the end of 1997.[^180] Major Gillespie was convicted
of battery, communicating a threat, and disorderly conduct, and
acquitted of carrying a concealed weapon. His wife testified on his
behalf, in part contradicting and in part offering an exculpatory
interpretation of the events testified to by prosecution witnesses. Over
the objection of the defense, the military judge instructed the court
members that if they found the accused's wife to be an accomplice, they
should consider her testimony with great caution. The Air Force court
found that *McCue* was still binding precedent, so it was within the
military judge's discretion to caution the members as to the credibility
of an accomplice who testifies for the defense. Although the facts were
similar to those of *United States v. Davis*,[^181] and the instruction
was the same, the Air Force Court of Criminal Appeals held that the
military judge erred by not tailoring the instruction to "the situation
of an accomplice providing testimony both adverse and favorable to \[the
accused\]."[^182] The court found the error to be harmless, but
suggested the military judge should have given the following
instruction:

> I further charge you that, to the extent, if any, that you find the
> testimony of an accomplice tends to support the contention of the
> \[accused\], that is, tends to show the \[accused\] to be not guilty,
> you may consider such testimony in that respect and weigh such
> testimony, along with the other evidence in the case, under the rules
> given you in this charge, and you may find the \[accused\] not guilty
> based on an accomplice's testimony.[^183]

VII. **ANALYSIS**

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A.  **Who has the Authority to Make the Rules?**

Before analyzing the law of accomplices today, we need to review the
legal framework in which the rules exist. In other words, who has the
power to make the rules concerning accomplice testimony?

The President has statutory authority to prescribe "\[p\]retrial, trial,
and post-trial procedures, including modes of proof" for courts-martial.
The law of accomplices has been a rule of evidence, and more recently a
rule of procedure.[^184] "\[S\]o far as he considers practicable," these
rules should "apply the principles of law and the rules of evidence
generally recognized in the trial of criminal cases in the United States
district courts, but which may not be contrary to or inconsistent with"
the Uniform Code of Military Justice.[^185] The Supreme Court has
specifically recognized the President's authority to promulgate these
rules.[^186]

The President's evidentiary rule in the 1951 *Manual* provided that the
uncorroborated testimony of an accomplice was to be considered with
caution.[^187] Without citation to any authority granting it the power
to change the rule, the Court of Military Appeals did so by judicial
fiat in *United States v. Winborn*.[^188] In 1969, the President changed
the *Manual* to reflect the court's decision,[^189] but it is unclear
whether the President meant to express his agreement with the decision
or merely wished to conform the *Manual* to the law as applied by the
appellate courts. The *Manual for Courts-Martial* is more than just a
compendium of the President's procedural and evidentiary rules; its
fundamental purpose is to serve as a "comprehensive body of law
governing the trial of courts-martial and as a guide for lawyers and
nonlawyers in the operation and application of such law."[^190] When an
appellate court decision contravenes his rule making authority, the
President faces a difficult dilemma. He can leave the *Manual* unchanged
to reflect the rule as he, acting within his statutory authority,
promulgated it, or he can change it to reflect the law as the appellate
courts have stated they will apply it. To maintain the usefulness of the
*Manual*, the President must acquiesce to the change.[^191]

B.  **The Law**

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1.  *Accomplice Witnesses Adverse to the Accused*

As previously mentioned at the end of Section II, the President's
procedural and evidentiary rules currently do not contain any reference
to accomplices, but the discussion accompanying R.C.M. 918(c) does:
"Findings of guilty may not be based solely on the testimony of a
witness other than the accused which is self-contradictory, unless the
contradiction is adequately explained by the witness. Even if apparently
credible and corroborated, the testimony of an accomplice should be
considered with great caution."[^192]

In analyzing the current law of accomplices, there are three basic
positions to consider: (1) no special attention should be paid to
accomplice testimony; (2) accomplice testimony should be considered with
caution; and, (3) the cautionary and corroboration prongs of the law of
accomplices did not change as a result of the adoption of the Rules for
Courts-Martial. It may be helpful, as a point of reference and to show
the incongruity of the law of accomplices, to keep in mind the following
examples, which will be discussed later. (1) The accused is charged with
using cocaine. The prosecution's sole evidence is the testimony of the
accused's best friend, Fred Noncom, who is also charged with using
cocaine at the same time and place. (2) The prosecution's sole witness
is the accused's estranged wife, who alleges that she saw the accused
use cocaine. The accused's wife is currently in a vicious custody
dispute with the accused over their child. (3) The prosecution's sole
witness is Bill Airman who is generally regarded as a liar.

An argument can be made that no special rules are to be applied to
accomplice testimony. The President has the statutory authority to
establish the rules of evidence and procedure. Since he failed to make
any reference to accomplices in the rules themselves, the President has
determined that their testimony does not warrant any special attention.
Considering the enormous changes that have been made to the legal system
since judges initially decided to warn jurors of the credibility of
accomplice testimony, the elimination of the special accomplice rules
make sense. The accused is no longer prohibited from being represented
by counsel, or from testifying and calling witnesses to testify in his
behalf. Counsel are quite imaginative in their ability to cross-examine
such a witness and vilify him during closing arguments. In addition,
military judges now give a much more robust credibility instruction than
was formerly the standard. That instruction fully advises court members
on factors they should consider in assessing the credibility of a
witness.[^193]

Others have argued, and at least the Air Force appellate court has
ruled, that "the drafters of \[*The Manual for Courts-Martial*\] 1984
did not intend to eliminate any portion of the prior instructional
requirements for accomplice testimony and that the need for instructions
concerning such testimony still arises from military case law."[^194]
Under this theory, both the cautionary and corroboration prongs of
accomplice testimony are alive and well. The court based its opinion on
a reading of R.C.M. 918(c) and the discussion following it; its
predecessor, paragraph 74*a* of the *Manual*; R.C.M. 920(e) and its
discussion,[^195] and the failure of the drafters' to state that they
intended to change the law.[^196] Of course the discussion and the
analysis in the *Manual* are part of the "nonbinding" supplementary
materials which do not necessarily reflect the views of the President,
do not create rights and responsibilities, and with which a failure to
comply "does not, of itself, constitute error."[^197]

The Air Force court's decision does not make sense. Unless the
evidentiary or procedural rules violate the Constitution or the Uniform
Code of Military Justice, appellate courts are not entitled to
substitute their judgement for that of the President.[^198] Furthermore,
in the military, corroboration historically related to accomplice
testimony in two respects: First, a conviction could not be based solely
on the uncorroborated testimony of an accomplice which is
self-contradictory, uncertain, or improbable; and second, the factfinder
was required to treat the uncorroborated testimony of an accomplice with
great caution. But, the second aspect was rendered moot by
*Winborn*.[^199] If the testimony of all accomplices, corroborated or
not, is to be considered with great caution, the existence of
corroboration is irrelevant for purposes of instructing the court.
Further, the first aspect is nothing more than another way of saying
that the accused's guilt must be established beyond a reasonable doubt
before he can be convicted of any offense. If the sole evidence against
an accused is uncorroborated accomplice testimony which was
self-contradictory, uncertain or improbable, a trial court would not be
able to find the accused guilty beyond a reasonable doubt. If it did,
the service court of criminal appeals could right the wrong by setting
the conviction aside for factual insufficiency.[^200]

In between these two extremes, there is another theory--that only the
cautionary prong of the law survives. There is much to support this
theory. First, the supplementary material in the *Manual* supports
treating an accomplice's testimony with caution. Second, so far as the
President considers practicable and when not contrary or inconsistent
with the UCMJ, the President's evidentiary and procedural rules should
apply the rules generally recognized in the United States district
courts. While there is considerable disagreement in the circuit courts
of appeal over the wording of the instructions, they generally agree
that juries need only be instructed to treat the testimony of
accomplices with caution.[^201] In addition, the Court of Military
Appeals in *Gillette* held that the military judge shall give "the
standard instruction regarding the suspect credibility of accomplice
testimony."[^202] One can speculate as to whether the court meant to
suggest that the corroboration prong was dead.

Now turning back to the examples, under the first theory, the witnesses
would be treated alike in each. The court members would evaluate the
testimony of the witnesses after hearing their testimony,
cross-examination, arguments of counsel, and the judge's general
credibility instruction. The second and third theories result in
incongruent treatment of the witnesses. The military judge would have to
instruct the court members to consider the testimony of the accused's
best friend with great caution. No such instruction would be required
for either the accused's wife or the liar, even though the reasons to
consider their testimony with caution appear to be as compelling. We
trust court members to appropriately weigh the potential interests of
all witnesses except accomplices.

2.  *Accomplice Witnesses Whose Testimony is Exculpatory*

At least in the Air Force, the military judge has discretion to give an
accomplice instruction for a witness whose testimony is favorable to the
defense.[^203] But, the Air Force court seems to require that the
military judge give the following, specially tailored, instruction:

> I further charge you that, to the extent, if any, that you find the
> testimony of an accomplice tends to support the contention of the
> accused, that is, tends to show the accused to be not guilty, you may
> consider such testimony in that respect and weigh such testimony,
> along with the other evidence in the case, under the rules given you
> in this charge, and you may find the accused not guilty based on an
> accomplice's testimony.[^204]

This instruction is awkward, subject to misunderstanding, and the need
for it is based on a misreading of federal case law. In *Gillespie*, the
military judge gave an accomplice instruction for a defense witness
which defined the term accomplice, explained that an accomplice's
testimony should be considered with caution because such a witness may
have a reason to falsify her testimony, and told the members they should
consider her testimony with caution if they found her to be an
accomplice. The Air Force Court of Criminal Appeals held that the
military judge committed error, although it did not prejudice the
accused. The court based its opinion on a federal case, *United States
v. Stulga*.[^205] In that case, the accused was charged with four others
of burglary, stealing savings bonds, and transferring those bonds. Two
of the participants testified for the prosecution and admitted their
part in the scheme. Their testimony with regard to Stulga was almost
completely exculpatory. During the original trial in that case, as part
of his accomplice instruction, the trial judge stated:

> On the contrary, the testimony of an accomplice alone, if believed by
> you, may be of sufficient weight to sustain a verdict of guilty, even
> though not corroborated or supported by other evidence. However, the
> jury should keep in mind that such testimony is to be received with
> caution and weighed with great care. You should not convict a
> defendant upon the unsupported testimony of an accomplice, unless you
> believe the unsupported testimony beyond all reasonable doubt.[^206]

The Sixth Circuit found the "lack of precision in the charge could very
well have confused the jurors, they might have erroneously concluded
that they had to believe the accomplice\'s exculpatory testimony beyond
a reasonable doubt before it could support a defense for
Appellant."[^207] The Sixth Circuit based its opinion on the Supreme
Court's decision in *Cool v. United States*.[^208]

In *Cool*, the judge instructed the jury that, if they were convinced
beyond a reasonable doubt that the accomplice's testimony was true
beyond a reasonable doubt, they could consider it like that of a witness
who was not implicated, and that the testimony of an accomplice alone,
if believed beyond a reasonable doubt to prove the elements of the
offense could support a conviction. The Supreme Court found such
instructions improperly shifted the burden of proof to the defense--the
jury would have to believe the exculpatory material beyond a reasonable
doubt before it could acquit.

At Stulga's retrial, the judge gave the instruction quoted by the Air
Force court in *Gillespie*, and the Sixth Circuit did no more than say
the instruction was not error.[^209] But, in *Gillespie*, there was no
need for such a special instruction. The military judge's instruction
did not in any way shift the burden of proof to the appellant. It simply
told the members that if they determined the witness was an accomplice,
they should consider her testimony with caution.

### WHAT IS A JUDGE TO DO?

When confronted with an accomplice issue, a military judge has three
basic options. First, treat the witness as any other and give no special
accomplice instruction. Second, give an abbreviated instruction as the
supplementary materials in the *Manual* would suggest is appropriate.
And third, give the full instruction with both the corroboration and
cautionary prongs.

There is no need for a special accomplice instruction. All of the
reasons for giving such an instruction have long since disappeared.
Furthermore, "\[s\]ince the testimony of children, lunatics, drunks,
friends and relatives of the accused, victims of sex crimes, and
witnesses testifying under a grant of immunity is evaluated under normal
rules of witness credibility, it defies logic to engraft additional
credibility requirements on the testimony of accomplices."[^210]

However, giving no accomplice instruction is risky. Although the
appellate courts are far less likely than in the past to set aside a
conviction merely because the military judge failed to give an
accomplice instruction, there is no good reason to tempt fate. Until the
President makes clear his intent to eliminate any special accomplice
instructions or the military appellate courts issue a more definitive
ruling, the following abbreviated instruction, which comports with the
practice in federal courts, can be used.

> Members of the court, you should view with great caution the testimony
> of any witness who claims to have been culpably involved in the
> commission of any offense with which the accused is charged. Such a
> witness may have a stake in the outcome of the case which would give
> him/her a motive to falsify his/her testimony. However, you should not
> reject such testimony without first evaluating its credibility. You
> should give it the weight you determine to be appropriate, keeping in
> mind my other instructions on witness credibility.

The term accomplice is not used in the instruction because it is not
necessary in explaining the concept to the court members. There is no
reference to corroboration, because the testimony of all accomplices,
whether corroborated or not, must be considered with caution, and, if
the uncorroborated accomplice testimony is self-contradictory,
uncertain, or improbable, the court members will not be able to find
beyond a reasonable doubt that the accused committed the offense.

Colonel J. Jeremiah Mahoney, a military trial and appellate judge of
considerable experience, and a long time critic of the accomplice
instruction,[^211] suggests a more conservative approach. He has deleted
the term corroboration from the instruction, but retained the concept
that the accused cannot be convicted on the uncorroborated testimony of
an accomplice if that testimony is self-contradictory, uncertain, or
improbable. He has also rewritten portions of the standard benchbook
instruction to eliminate the awkward sentence construction.

> You are advised that a witness is an accomplice if he or she was
> criminally involved in an offense with which the accused is charged.
> The purpose of this advice is to call to your attention a factor
> bearing upon the witness' believability. An accomplice may have a
> motive to falsify his or her testimony in whole or in part, because of
> his or her self-interest in the matter. \[For example, an accomplice
> may be motivated to falsify testimony in whole or in part because of
> (his/her) own self-interest in (deflecting or minimizing guilt)
> (receiving immunity from prosecution) (receiving leniency/clemency in
> his/her prosecution.) ( ).\] Whether or not (name witness(es)), who
> testified as (a) witness(es) in this case, (was/were) (an)
> accomplice(s) is a question for you to decide. If (he/she/they) shared
> the criminal intent or purpose of the accused--if any--or aided,
> encouraged, or in any other way criminally involved (himself/herself)
> in the offense with which the accused is charged, then (he/she/they)
> would be an accomplice.
>
> As I indicated previously, it is your function to determine the
> credibility of all the witnesses, and the weight--if any--you will
> accord the testimony of each witness. Although you should consider the
> testimony of an accomplice with caution, you may convict the accused
> based solely upon the testimony of an accomplice, as long as that
> testimony wasn\'t self-contradictory, uncertain, or improbable.
>
> \[NOTE: If the testimony of the accomplice can be construed as both
> exculpatory and inculpatory:\]
>
> \[On the other hand, you may find that the testimony of an
> accomplice--either alone or in conjunction with other evidence or the
> lack thereof--is sufficient to raise a reasonable doubt as to the
> accused\'s guilt.\]

The "standard" accomplice instruction used in the military is long,
complicated, and convoluted. It sounds more like an instruction to
disregard the testimony of an accomplice than to consider it with
caution, and court members have advised me that was its effect.

> You are advised that a witness is an accomplice if he/she was
> criminally involved in an offense with which the accused is charged.
> The purpose of this advice is to call to your attention a factor
> specifically affecting the witness' believability, that is a motive to
> falsify his/her testimony in whole or in part, because of an obvious
> self-interest under the circumstances. (For example, an accomplice may
> be motivated to falsify testimony in whole or in part because of
> his/her own self-interest in receiving (immunity from prosecution)
> (leniency in a forthcoming prosecution) ( )).
>
> The testimony of an accomplice, even though it may be ((apparently)
> (corroborated) and) apparently credible is of questionable integrity
> and should be considered by you with great caution.
>
> In deciding the believability of (state the name of the witness), you
> should consider all the relevant evidence (including but not limited
> to (here the military judge may specify significant evidentiary
> factors bearing on the issue and indicate the respective contentions
> of counsel for both sides).
>
> Whether or not (state the name of the witness), who testified as a
> witness in this case, was an accomplice is a question for you to
> decide. If (state the name of the witness) shared the criminal intent
> or purpose of the accused, if any, or aided, encouraged, or in any
> other way criminally associated or involved himself/herself with the
> offense with which the accused is charged, he/she would be an
> accomplice whose testimony must be considered with great caution.
>
> (Additionally, the accused cannot be convicted on the uncorroborated
> testimony of a purported accomplice if that testimony is
> self-contradictory, uncertain, or improbable).
>
> (In deciding whether the testimony of (state the name of the witness)
> is self-contradictory, uncertain, or improbable, you must consider it
> in the light of all the instructions concerning the factors bearing on
> a witness' credibility.)
>
> In deciding whether or not the testimony of (state the name of the
> witness) has been corroborated, you must examine all the evidence in
> this case and determine if there is independent evidence which tends
> to support the testimony of this witness. If there is such independent
> evidence, then the testimony of this witness is corroborated; if not,
> then there is no corroboration.
>
> (You are instructed as a matter of law that the testimony of (state
> the name of the witness) is uncorroborated.)

Giving an accomplice instruction for defense witnesses is problematic
and unnecessary. A judge must be careful not to shift the burden of
proof to the accused. Judge Mahoney's instruction clearly does not shift
the burden of proof to the defense. Neither does the other abbreviated
instruction, although it is open to question whether, after *Gillespie*,
the Air Force Court of Criminal Appeals would concur. Normally, there is
no good reason to give such an instruction. Surely, the prosecutor would
be able to question the motives of the witness during cross-examination
and in her final argument to the court members.

### CONCLUSION

Contrary to the comforting statements of the appellate courts, the law
of accomplices is not well settled in the military. It has been
continuously changing over the past 50 years. Even today, questions
remain as to the parameters of the doctrine and, at least in the minds
of the appellate court judges, who has the authority to determine the
law of accomplices.

This is an opportune time for the President to clarify his rule. On 31
March 1998, the Supreme Court reaffirmed the President's authority to
determine the rules of evidence and procedure.[^212] The President could
exercise that authority by eliminating the reference to accomplices in
the discussion to R.C.M. 918(c), inserting a new R.C.M. 920(e)(4), and
renumbering the remaining subparagraphs accordingly. Rule for
Courts-Martial 920(e) lists instructions that the military judge must
give on findings.

If the President decided to eliminate special consideration for
accomplice testimony, R.C.M. 920(e)(4) should be amended to read:

(4) A description of matters that should be considered in evaluating the
    credibility of witnesses. No special instruction on accomplice
    testimony need be given.

If the President adopted the federal rule, R.C.M. 920(e)(4) might read:

\(4\) A description of matters that should be considered in evaluating
the credibility of witnesses. In cases in which an accomplice testifies,
court members shall be advised to treat such testimony with great
caution. Corroboration of the testimony of an accomplice is not required
to sustain a conviction.

If the President wanted to adopt the rule from *United States v.
Winborn*[^213] and the 1969 *Manual*, then R.C.M. 920(e)(4) should read:

(4) A description of matters that should be considered in evaluating the
    credibility of witnesses. In cases in which an accomplice testifies,
    court members shall be advised to treat such testimony with great
    caution, and advised that a conviction cannot be sustained on the
    uncorroborated testimony of an accomplice if it is
    self-contradictory, uncertain, or improbable.

The law of accomplices is an evidentiary matter which is the prerogative
of the President, not the courts. It is time for the President to
reassert his authority and provide military justice practitioners with
clear guidance.

[^1]: ^^ *Colonel Young (B.A., Lehigh University; J.D., University of
    Pennsylvania Law School) is the Chief Circuit Military Judge, USAF
    Trial Judiciary, European Circuit, Ramstein Air Base, Germany. He is
    a member of the Bar of the Commonwealth of Pennsylvania.*

[^2]: From defense counsel's closing argument on findings in an Air
    Force special court-martial, circa 1978.

[^3]: As used in this article, military appellate courts refer to the
    service courts of criminal appeals (and their predecessors, the
    courts of military review and the boards of review) and the Court of
    Appeals for the Armed Forces (and its predecessor, the Court of
    Military Appeals).

[^4]: An accomplice is "\[a\] person who knowingly, voluntarily, and
    with common intent with the principal offender unites in the
    commission of a crime." [Black's Law Dictionary 17 (]{.smallcaps}6th
    ed. 1990). A more irreverent view: "One associated with another in a
    crime, having guilty knowledge and complicity, as an attorney who
    defends a criminal, knowing him guilty. This view of the attorney's
    position in the matter has not hitherto commanded the assent of
    attorneys, no one having offered them a fee for assenting." [Ambrose
    Bierce, The Devil's Dictionary (1906)]{.smallcaps} *quoted in* [The
    Harper book of American Quotations 165 (]{.smallcaps}Gorton Carruth
    et al. eds., 1988).

[^5]: United States v. Aguinaga, 25 M.J. 6, 7 (C.M.A. 1987); United
    States v. Thompson, 26 M.J. 512, 515 (A.C.M.R. 1988) (citing
    Aguinaga); United States v. Hubbard, 18 M.J. 678, 683 (A.C.M.R.
    1984); United States v. Rehberg, 15 M.J. 691, 693 (A.F.C.M.R. 1983);
    United States v. Mabra, 35 C.M.R. 823, 824 (A.F.B.R. 1964).

[^6]: United States v. Stephen, 15 U.S.C.M.A. 314, 35 C.M.R. 286, 290
    (1965); United States v. Moore, 8 M.J. 738, 740 (A.F.C.M.R. 1980);
    United States v. Moore, 2 M.J. 749, 753 (A.F.C.M.R. 1977) (refers to
    law as settled rather than well settled); United States v. Newsom,
    38 C.M.R. 833, 840 (A.F.B.R. 1967); United States v. Costello, 2
    C.M.R. (A.F.) 177, 180 (A.F.J.C. 1949).

[^7]: Until 1695 for treason and 1836 for other felonies. 2 [John H.
    Wigmore, A Treatise on the anglo-American system of Evidence in
    Trials at Common Law]{.smallcaps} § 575 (Chadbourn rev. 1979)
    \[hereinafter 2 [Wigmore, evidence\]]{.smallcaps}. At early common
    law, the term "felony" was limited to "offenses cognizable in the
    royal courts, conviction for which entailed forfeiture of life, limb
    and chattels and escheat of lands to the felon's lord after a year
    and a day in the king's hands." [Black's Law Dictionary]{.smallcaps}
    617 (6th ed. 1990). Ironically, an accused charged with a
    misdemeanor was permitted the assistance of counsel. Apparently, it
    was thought that in felony cases "the potential threat to justice
    was too great to allow the obfuscations of lawyers to delay or deny
    justice." [David J. Bodenhamer, Fair Trial 40 (1992)]{.smallcaps}.

    > One day before the statute, already enacted, was to take effect,
    > Sir William Parkins was brought to trial. He asked to be allowed
    > counsel, quoting the preamble to the statute, which said it was
    > just and reasonable that the defendant in a treason case have
    > counsel. The court rejected the argument, and expressing some
    > regret, informed Parkins that the old practice would remain in
    > force for another twenty-four hours. They then denied his prayer
    > for a postponement of the trial. Parkins was tried, found guilty,
    > and executed.

    [Charles Rembar, The Law of the Land]{.smallcaps} 383 n.\* (1980).

[^8]: [2 Wigmore, Evidence,]{.smallcaps} *supra* note 6, § 575
    (Chadbourn rev. 1979). [Charles Rembar, The Law of the Land 386-87
    (1980).]{.smallcaps}

[^9]: *Id.*

[^10]: *Id*.

[^11]: *Id.* §§ 575-80; [7 John H. Wigmore, a treatise on the
    anglo-american system of evidence in trials at common law §
    2057]{.smallcaps} (3d ed. 1940) \[hereinafter 7 [Wigmore,
    Evidence]{.smallcaps}\]; [William Winthrop, Military Law and
    Precedents 336 (]{.smallcaps}2d ed. 1920).

[^12]: 2 [Wigmore]{.smallcaps}, [Evidence,]{.smallcaps} *supra* note 6,
    § 575.

[^13]: *Id.* § 576.

[^14]: *Id.* § 580.

[^15]: [Black's Law Dictionary]{.smallcaps} 102 (6th ed. 1990); United
    States v. Scoles, 14 U.S.C.M.A. 14, 33 C.M.R. 226, 231 (1963)
    (citing Guthrie v. Commonwealth, 171 Va. 461, 198 S.E. 481 (1938)
    (citing 4 [William Blackstone, Commentaries]{.smallcaps} \*330-31)).

[^16]: [7 Wigmore, Evidence]{.smallcaps}, *supra* note 10[*,* §
    2057]{.smallcaps} (quoting State v. Carey, 56 Atl 632, 76 Conn. 342
    (1904)).

[^17]: [7 Wigmore, Evidence,]{.smallcaps} *supra* note [10, §
    2056]{.smallcaps}.

[^18]: *Id*. *But see* 11 [Halsbury's Laws of England]{.smallcaps} ¶¶
    453-57 (4^th^ ed. 1976) (The practice of English judges warning
    jurors that it is dangerous to convict on the uncorroborated
    testimony of an accomplice now has the force of law. If the trial
    judge fails to warn the jury, "the conviction will be quashed by the
    Court of Appeal, even if in fact there was ample corroboration of
    the accomplice's evidence, unless the court holds that a reasonable
    jury would inevitably have arrived at the same conclusion with the
    instruction.")

[^19]: Jack B. Weinstein, *The Power and Duty of Federal Judges to
    Marshall and Comment on the Evidence in Jury Trials and Some
    Suggestions on Charging Juries*, 118 F.R.D. 161 (1988); [7 Wigmore,
    Evidence,]{.smallcaps} *supra* note [10, § 2056;]{.smallcaps}
    [Lawrence M. Friedman, A History of American Law 137
    (]{.smallcaps}Touchstone 1973).

[^20]: [7 Wigmore, Evidence]{.smallcaps}, *supra* note 10, [§
    2056.]{.smallcaps}

[^21]: 9 [John H. Wigmore, a treatise on the anglo-american system of
    evidence in trials at common law § 2551]{.smallcaps} (Chadbourn rev.
    1981) \[hereinafter 9 [Wigmore, Evidence\];]{.smallcaps} Weinstein,
    *supra* note 18. *See* Quercia v. United States, 289 U.S. 466, 53 S.
    Ct. 698, 77 L. Ed. 1321 (1933); Horning v. District of Columbia, 254
    U.S. 135, 41 S. Ct. 53, 65 L. Ed. 185 (1920); Inland Freight Lines
    v. United States, 191 F.2d 313 (10th Cir. 1951); United States v.
    Aaron, 190 F.2d 144 (2d Cir. 1951).

[^22]: United States v. Berry, 6 U.S.C.M.A. 638, 20 C.M.R. 354, 359
    (1956); United States v. Andis, 2 U.S.C.M.A. 364, 8 C.M.R. 164
    (1954). *See* [Manual for Courts-Martial, United States, 1969
    Revised Edition ¶ 73*c*]{.smallcaps}; [Manual for Courts-Martial,
    United States, R.C.M. 920(]{.smallcaps}e) Discussion
    [(1995]{.smallcaps} edition).

[^23]: Several factors may have encouraged federal judges to adopt the
    state rule: (1) before their appointments, many federal judges
    practiced more extensively in state courts; (2) judges are concerned
    that jury instructions are already too long without summing up the
    evidence; (3) summing up or commenting on the evidence is another
    ground on which the accused can appeal her conviction; and (4)
    Congress specifically declined to adopt the Supreme Court's proposal
    to codify the judge's right to summarize and comment on the evidence
    in Fed. R. Evid. 105. Weinstein, *supra* note 18; 9 [Wigmore,
    Evidence,]{.smallcaps} *supra* note [20, § 2551.]{.smallcaps} Judge
    Sullivan of the United States Court of Appeals for the Armed Forces
    has extolled the virtues of the English practice and recommended
    that military judges use their authority "to give the jury a good,
    exhaustive, accurate, and fair view of the facts in the case so the
    jury can do its job on a more informed bases." United States v.
    Figura, 44 M.J. 308, 310-11 (1996) (Sullivan, J., concurring).

[^24]: It appears that the first statute in the United States which
    permitted an accused to testify in a criminal case was enacted in
    1864 by the state of Maine. The English did not follow suit until
    1898. [2 Wigmore]{.smallcaps}, [Evidence,]{.smallcaps} *supra* note
    [6*,*]{.smallcaps} § 579. As late as 1961, by statute, an accused in
    the state of Georgia was not permitted to testify in his own behalf.
    Ferguson v. Georgia, 365 U.S. 570, 81 S. Ct. 756, 5 L. Ed. 2d 783
    (1961).

[^25]: [Winthrop,]{.smallcaps} *supra* note 10, at [336]{.smallcaps}.

[^26]: "By the Act of Congress of March 16, 1878, c. 37, it is provided
    that upon criminal trials and proceedings before not only 'United
    States courts' and 'Territorial courts,' but also 'courts-martial
    and courts of inquiry,' the accused '*shall, at his own request, but
    not otherwise, be a competent witness.*'" [Winthrop,]{.smallcaps}
    *supra* note 10, at [335]{.smallcaps}. *See* 18 U.S.C. § 3481
    (1978).

[^27]: [Winthrop,]{.smallcaps} *supra* note 10, at [357]{.smallcaps}.

[^28]: [Manual for Courts-Martial, United States Army, 1921, ¶
    224.]{.smallcaps} *See also*, [Digest of Opinions of The Judge
    Advocate General of the Army]{.smallcaps}, 1912-1940, Article of War
    38, Witnesses § 397 (57).

[^29]: [Manual for Courts-Martial, United States Army, 1928, ¶
    124]{.smallcaps}*a*[.]{.smallcaps}

[^30]: [Manual for Courts-Martial, United States Army, 1949, ¶
    139]{.smallcaps}*a* (emphasis added)[.]{.smallcaps} President Truman
    promulgated the same rule for the Air Force. [Manual for
    Courts-Martial, United States Air Force, 1949, ¶
    139]{.smallcaps}*a*.

[^31]: 10 U.S.C. §§ 801-946 (1950) (also referred to as "UCMJ" or "the
    Code").

[^32]: United States v. Rehberg, 15 M.J. 691, 694 (A.F.C.M.R. 1983).

[^33]: [Manual for Courts-Martial, United States, 1951, ¶
    153]{.smallcaps}*a* (emphasis added)[.]{.smallcaps} Note the change
    from "should not" in the 1949 *Manual* to "cannot" in the 1951
    *Manual*.

[^34]: United States v. Winborn, 14 U.S.C.M.A. 277, 34 C.M.R. 57 (1963).

[^35]: The predecessor to the military judge. *See* UMCJ art. 67, 10
    U.S.C. § 867 (1950).

[^36]: United States v. Winborn, 34 C.M.R. at 61.

[^37]: *Id*. (emphasis added).

[^38]: *See* Department of the Army Pamphlet 27-2, *Analysis of Contents
    Manual for Courts-Martial, United States, 1969 Revised Edition*
    27-42 (1970).

[^39]: [Manual for Courts-Martial, United States, 1969 revised edition ¶
    153]{.smallcaps}*a* (emphasis added). Actually, two manuals were
    promulgated for 1969. On 11 September 1968, President Johnson
    prescribed the [Manual for Courts-Martial, United States,
    1969,]{.smallcaps} to be effective 1 January 1969. On 24 October
    1968, he signed into law the Military Justice Act of 1968, Pub. L.
    No. 90-632, 82 Stat. 1335 (1968), which required extensive changes
    to the *Manual*. Department of the Army Pamphlet 27-2, *Analysis of
    Contents Manual for Courts-Martial, United States, 1969 Revised
    Edition* iii (1970). The revised edition took effect 1 August 1969.

[^40]: Exec. Order No. 12198 (1980).

[^41]: By adopting the new rules, the President complied with his
    mandate to prescribe rules for the trial of cases, "including modes
    of proof, . . . which shall, so far as he considers practicable,
    apply the principles of law and the rules of evidence generally
    recognized in the trial of criminal cases in the United States
    district courts, but which may not be contrary to or inconsistent
    with this chapter." UCMJ art. 36(a), 10 U.S.C. § 836(a) (1950).

[^42]: [Manual for Courts-Martial, United States]{.smallcaps}, [Mil. R.
    Evid.]{.smallcaps} 101(b) (1995 ed.). *See* [Stephen a. Saltzburg,
    et al., military rules of evidence Manual]{.smallcaps} 5 (4^th^ ed.
    1997).

[^43]: From ¶ 153*a* to ¶ 74*a*(2).

[^44]: [Manual for Courts-Martial, United States, 1969 Revised Edition,
    ¶ 74]{.smallcaps}*a*(2). Exec. Order No. 12198 (1980).

[^45]: [Manual for Courts-Martial, United States, 1984.]{.smallcaps}
    Exec. Order No. 12473 as amended by Exec. Order No. 12484 (1984).

[^46]: *Id.* at A21-1.

[^47]: *Id[.]{.smallcaps}* R.C.M. 918(c) Discussion.

[^48]: United States v. Bey, 4 U.S.C.M.A. 665, 16 C.M.R. 239, 243
    (1954).

[^49]: United States v. Schreiber, 5 U.S.C.M.A. 602, 18 C.M.R. 226, 233
    (1955).

[^50]: United States v. Scoles, 14 U.S.C.M.A. 14, 33 C.M.R. 226 (1963).

[^51]: *Id.* at 231.

[^52]: United States v. Garcia, 22 U.S.C.M.A. 8, 46 C.M.R. 8, 10 (1972).

[^53]: *See* United States v. McKinnie, 32 M.J. 141, 143 (C.M.A. 1991);
    *accord* United States v. Hecker, 42 M.J. 640 (A.F.Ct.Crim.App.
    1995).

[^54]: UCMJ art. 134, 10 U.S.C. § 934 (1950). Article 134 criminalizes
    "all disorders and neglects to the prejudice of good order and
    discipline in the armed forces, all conduct of a nature to bring
    discredit upon the armed forces, and crimes and offenses not
    capital."

[^55]: [Charles E. Torcia, Wharton's Criminal Evidence §
    614]{.smallcaps} (14th ed. 1987).

[^56]: Bribery: United States v. Bey, 4 U.S.C.M.A. 665, 16 C.M.R. 239
    (1954) (Although not strictly a bribery case, both parties and the
    court concluded that the law as applied to bribery applied. Since
    both could be prosecuted under Article 134, they were accomplices.).
    Drugs: United States v. Aguinaga, 25 M.J. 6 (C.M.A. 1987); United
    States v. Lee, 6 M.J. 96 (C.M.A. 1978). The cases cite *United
    States v. Allums*, 5 U.S.C.M.A. 435, 438, 18 C.M.R. 59, 62 (1955)
    for this proposition. In *Allums*, the Court of Military Appeals
    said it did not need to rule on the question; however, the court
    opined that it could not see much difference between the buyer and
    seller of drugs and the giver and receiver of bribes in *United
    States v. Bey*. Of course, at the time, most drug offenses were
    prosecuted under Article 134.

[^57]: United States v. Garcia, 22 U.S.C.M.A. 8, 46 C.M.R. 8, 10 (1972).

[^58]: United States v. Scoles, 33 C.M.R. at 231.

[^59]: United States v. Petrie, 40 C.M.R. 991, 997 (A.F.B.R. 1969).

[^60]: United States v. Combest, 14 M.J. 927, 931 (A.C.M.R. 1982)
    (citing United States v. Kelker, 50 C.M.R. 410 (A.C.M.R. 1975));
    United States v. Hand, 8 M.J. 701 (A.F.C.M.R. 1980), *rev'd on other
    grounds*, 11 M.J. 321 (C.M.A. 1981); United States v. Baker, 2 M.J.
    360, 363 n.6 (A.F.C.M.R. 1977).

[^61]: United States v. Lell, 16 U.S.C.M.A. 161, 36 C.M.R. 317, 320
    (1966).

[^62]: United States v. Urich, 8 C.M.R. 799 (A.F.B.R. 1953).

[^63]: *Id.* at 801.

[^64]: United States v. Bey, 4 U.S.C.M.A. 665, 16 C.M.R. 239 (1954).

[^65]: *Id.* at 243.

[^66]: *Id*. at 248 (Latimer, J., dissenting).

[^67]: United States v. Schreiber, 5 U.S.C.M.A. 602, 18 C.M.R. 226
    (1955).

[^68]: *Id*. at 233.

[^69]: United States v. Wiley, 16 U.S.C.M.A. 449, 37 C.M.R. 69 (1966).

[^70]: *Id.* at 70-71.

[^71]: *Id*. at 71.

[^72]: United States v. Adams, 19 M.J. 996 (A.C.M.R. 1985).

[^73]: *Id.* at 998.

[^74]: *Id*.

[^75]: United States v. McKinnie, 32 M.J. 141 (C.M.A. 1991).

[^76]: *Id*. at 142 (C.M.A. 1991).

[^77]: *Id*. at 144.

[^78]: [Charles E. Torcia, Wharton's Criminal Evidence]{.smallcaps} §
    611 (14th ed. 1987).

[^79]: *See* United States v. Palmer, 16 M.J. 501, 503 (A.F.C.M.R. 1983)
    (error not to find witness was an accomplice as a matter of law, but
    accused was not prejudiced); United States v. Diaz, 22 U.S.C.M.A.
    52, 46 C.M.R. 52, 56 (1972); United States v. Tellier, 34 C.M.R.
    800, 804 (A.F.B.R. 1964); United States v. Graalum, 19 C.M.R. 667,
    693 (A.F.B.R.1955).

[^80]: United States v. Gillette, 35 M.J. 468, 470 (C.M.A. 1992).

[^81]: *Id*.

[^82]: [Charles E. torcia, wharton's criminal evidence § 611
    (]{.smallcaps}14^th^ ed. 1987).

[^83]: [Manual for Courts-Martial, United States]{.smallcaps}, R.C.M.
    918(c) Discussion (1995 ed.); United States v. Rehberg, 15 M.J. 691,
    693 (A.F.C.M.R. 1993).

[^84]: United States v. Wilson, 2 M.J. 683, 685 (A.F.C.M.R. 1976). *See
    also* United States v. Thompson, 44 C.M.R. 732, 737 (N.C.M.R. 1971);
    [Charles E. Torcia, Wharton's Criminal Evidence]{.smallcaps} § 611
    (14th ed. 1987); United States v. Aguinaga, 25 M.J. 6, 8 (C.M.A.
    1987).

[^85]: *See* United States v. Lee, 6 M.J. 96, 98 (C.M.A. 1978) (finding
    "testimony unequivocally established the appellant's participation
    in the criminal venture); United States v. Allums, 5 U.S.C.M.A. 435,
    18 C.M.R. 59, 62 (1955); United States v. Henderson, 4 U.S.C.M.A.
    268, 15 C.M.R. 268, 272-73 (1954) (using totality of circumstances
    test to determine if rape complainant's testimony was
    self-contradictory, uncertain, or improbable); United States v.
    Baker, 2 M.J. 360, 364 (A.F.C.M.R. 1977); United States v. Moore, 2
    M.J. 749, 754 (A.F.C.M.R. 1977).

[^86]: United States v. Diaz, 22 U.S.C.M.A. 52, 46 C.M.R. 52, 57 (1972)
    (Fact that testimony of accomplice differed from testimony of other
    prosecution witnesses and that "some reasonable minds may not find a
    part or all of his testimony believable" does not provide "a
    predicate for a legal conclusion that the testimony is
    improbable.").

[^87]: United States v. McPherson, 12 M.J. 789, (A.C.M.R. 1982).

[^88]: *Id.* at 791; *accord* United States v. Rehberg, 15 M.J. at 693.

[^89]: United States v. Aguinaga, 25 M.J. at 7 n.1.

[^90]: United States v. Allums, 5 U.S.C.M.A. 435, 18 C.M.R. 59, 62-63
    (1955).

[^91]: United States v. Sanders, 34 M.J. 1086, 1093 (A.F.C.M.R. 1992);
    *see* United States v. Wilson, 2 M.J. 683, 686 (A.F.C.M.R. 1976)
    (holding military judge technically erred by submitting the question
    of corroboration to the court members rather than informing them as
    a matter of law that the accomplice's testimony was uncorroborated).

[^92]: United States v. Devine, 36 M.J. 673, 675 (N.M.C.M.R. 1992);
    United States v. Sanders, 34 M.J. 1086, 1094 (A.F.C.M.R. 1992);
    United States v. Williamson, 2 M.J. 597, 599 (A.F.C.M.R. 1976);
    United States v. Thompson, 44 C.M.R. 732, 736 (N.C.M.R. 1971)
    (citing Arnold v. United States 94 F.2d 499, 507 (1938)). *But see*
    United States v. McKinnie, 32 M.J. 141, 145 (1991) (Court concludes
    that all four accomplices gave consistent testimony and there was no
    evidence that they collaborated or plotted amongst themselves. Query
    whether the court meant to suggest that one accomplice can
    corroborate the testimony of another accomplice.)

[^93]: United States v. Allums, 5 U.S.C.M.A. 435, 18 C.M.R. 59, 62
    (1955).

[^94]: United States v. Winborn, 14 U.S.C.M.A. 277, 34 C.M.R. 57, 61
    (1963).

[^95]: *Id*.

[^96]: United States v. Lee, 6 M.J. 96, 98 (C.M.A. 1978). The Air Force
    had reached the same conclusion in United States v. Wilson, 2 M.J.
    683, 686 (A.F.C.M.R. 1976) (citing United States v. Allums, 5
    U.S.C.M.A. 435, 18 C.M.R. 59, 62 (1955) and not mentioning United
    States v. Winborn, 14 U.S.C.M.A. 277, 34 C.M.R. 57, 61 (1963).

[^97]: United States v. Sarae, 9 C.M.R. 633, 637-38 (A.F.B.R. 1953);
    United States v. Urich, 8 C.M.R. 799 (A.F.B.R. 1953).

[^98]: Caminetti v. United States, 242 U.S. 470, 37 S. Ct. 192, 61 L.
    Ed. 442 (1917); Holmgren v. United States, 217 U.S. 509, 30 S. Ct.
    588, 54 L. Ed. 861 (1910); United States v. Block, 88 F.2d 618 (2d
    Cir.), *cert. denied*, 301 U.S. 690, 57 S. Ct. 793, 81 L. Ed. 1347
    (1937); United States v. Pine, 135 F. 2d 353 (5^th^ Cir.), *cert.
    denied*, 320 U.S. 740, 64 S. Ct. 40, 88 L. Ed. 439 (1943).

[^99]: "The law officer is not required to give the court any
    instructions other than those required by Article 51c \[¶ 73*a*,
    *b*\]. However, when he deems it necessary or desirable, he may give
    the court such additional instructions as will assist it in making
    its findings." [Manual for Courts-Martial, United States, 1951, ¶
    73]{.smallcaps}*c*[.]{.smallcaps} UCMJ art. 51(c) provides:

    > Before a vote is taken on findings, the law officer of a general
    > court-martial and the president of a special court-martial shall,
    > in the presence of the accused and counsel, instruct the court as
    > to the elements of the offense and charge \[the court\]--

    that the accused must be presumed to be innocent until his guilt is
    established by legal and competent evidence beyond reasonable doubt;

    that in the case being considered, if there is a reasonable doubt as
    to the guilt of the accused, the doubt shall be resolved in favor of
    the accused and he shall be acquitted;

    that if there is a reasonable doubt as to the degree of guilt, the
    finding must be in a lower degree as to which there is no reasonable
    doubt; and

    that the burden of proof to establish the guilt of the accused
    beyond reasonable doubt is upon the Government.

[^100]: United States v. Sarae, 9 C.M.R. 633, 637-38 (A.F.B.R. 1953);
    United States v. Phillips, 9 C.M.R. 186, 197 (A.B.R. 1952), *rev'd
    on other grounds*, 3 U.S.C.M.A. 137, 11 C.M.R. 137 (1953).

[^101]: United States v. Urich, 8 C.M.R. 799, 803 (A.F.B.R. 1953)
    (quoting United States v. Ginn, 1 U.S.C.M.A. 453, 4 C.M.R. 45, 48
    (1952)). Until 1968, the president of the court presided over both
    general and special courts-martial. In general courts-martial, the
    convening authority was required to appoint a judge advocate to act
    as law officer. UCMJ art. 26(a), 10 U.S.C. § 826(a) (1950). During
    trial, the law officer ruled on all interlocutory questions except
    challenges, and advised the court on questions of law and procedure.
    The law officer was also responsible for instructing the court
    before the court closed to deliberate on findings and sentence. UCMJ
    art. 51(c), 10 U.S.C. § 851(c) (1950). In special courts-martial, no
    law officer was appointed. The president of the court, the senior
    member and usually a person without any legal training, assumed the
    duties of the law officer, including instructing the court. UCMJ
    art. 51(b) and (c), 10 U.S.C. §§ 851(b) and (c) (1950). As part of
    the Military Justice Act of 1968, the military judge replaced the
    law officer in general courts and was required to preside over any
    special court-martial which could adjudge a bad-conduct discharge.
    UCMJ arts. 18 and 26, 10 U.S.C. §§ 819 and 826 (1968).

[^102]: UCMJ art. 66(c), 10 U.S.C. § 866(c) (1950). Of course, the
    service appellate courts only review those cases "in which the
    sentence, as approved, extends to death, dismissal of a commissioned
    officer, cadet, or midshipman, dishonorable or bad-conduct
    discharge, or confinement for one year or more." UCMJ art. 66(b), 10
    U.S.C. § 866(b) (1950).

[^103]: United States v. Bey, 4 U.S.C.M.A. 665, 16 C.M.R. 239 (1954).

[^104]: *Id.* at 245.

[^105]: *Id*.

[^106]: *Id*. at 246. The law officer gave the following credibility
    instruction: "Further, I would like to instruct the court that the
    credibility of a witness is his worthiness of belief. The court may
    ordinarily draw its own conclusions as to the credibility of a
    witness and attach such weight to his evidence as his credibility
    may warrant." *Id*. at 242.

[^107]: *Id*. At 245.

[^108]: United States v. Allums, 5 U.S.C.M.A. 435, 18 C.M.R. 59 (1955).

[^109]: The first instruction stated that "the accused cannot be
    convicted of this offense upon the uncontested testimony of an
    accomplice, if such testimony is self-contradictory, vague, or
    uncertain." The second instruction was that the "uncorroborated
    testimony of an accomplice, even though apparently credible, is of
    doubtful integrity and is to be considered with great caution."
    United States v. Allums, 18 C.M.R. at 60.

[^110]: United States v. Bey, 4 U.S.C.M.A. 665, 16 C.M.R. 239 (1954).

[^111]: United States v. Allums, 18 C.M.R. at 63.

[^112]: *Id.* at 62.

[^113]: *Id.* at 63.

[^114]: *Id*. This suggested approach was consistent with the way
    courts-martial handled admissibility of an accused's confession.
    [Manual for Courts-Martial, United States,]{.smallcaps} 1951, ¶
    140*a*.

[^115]: United States v. Winborn, 14 U.S.C.M.A. 277, 34 C.M.R. 57, 60
    (1963).

[^116]: *Id*.

[^117]: *Id*. at 62 (quoting Pine v. United States, 135 F.2d 353, 355
    (5^th^ Cir.), *cert. denied*, 320 U.S. 740, 64 S. Ct. 40, 88 L. Ed.
    439 (1943)). In *Winborn*, the proposed instruction was not a
    correct statement of the law, unless the court meant to find that a
    pretrial confession is not sufficient to corroborate the testimony
    of an accomplice. Until the decision in *Winborn*, only the
    uncorroborated testimony of an accomplice needed to be considered
    with caution.

[^118]: United States v. Stephen, 15 U.S.C.M.A. 314, 35 C.M.R. 286
    (1965).

[^119]: *Id.* at 290.

[^120]: *Id*.

[^121]: *Id*. at 291. This theory would later find favor with the court
    in *United States v. Wiley*, 16 U.S.C.M.A. 449, 37 C.M.R. 69, 72
    (1966).

[^122]: United States v. Lell, 16 U.S.C.M.A. 161, 36 C.M.R. 317 (1966).

[^123]: *Id.* at 322.

[^124]: United States v. Newsom, 38 C.M.R. 833 (A.F.B.R. 1967).

[^125]: The instruction read:

    > Evidence has been received tending to indicate that Airman Spain
    > who testified as a witness in this case was an accomplice in the
    > commission of the offenses charged. The court is advised that a
    > witness is an accomplice if he was culpably involved in the crime.
    > You are advised that, under the state of the evidence, Airman
    > Spain is an accomplice as a matter of law. The testimony of an
    > accomplice even though apparently credible, is of doubtful
    > integrity and is to be considered with great caution. A witness'
    > testimony need not be rejected, however, simply because he is an
    > accomplice and the weight to be give to such testimony is a matter
    > for your determination.

    *Id.* at 838.

[^126]: The proposed defense instruction read: "You should note,
    however, that a conviction cannot be based upon the uncorroborated
    testimony of an accomplice in any case, if such testimony is
    self-contradictory, uncertain, or improbable." *Id.*

[^127]: *Id*.

[^128]: *Id*. at 839.

[^129]: United States v. Lippincott, 39 C.M.R. 932, 933 (A.F.B.R. 1968).

[^130]: [Manual for Courts-Martial, United States, 1969 revised
    edition]{.smallcaps} ¶ 153*a* (emphasis added). In 1980, with the
    adoption of the Military Rules of Evidence, similar language
    regarding accomplice testimony was placed in ¶ 74*a*(2).

[^131]: United States v. Diaz, 22 U.S.C.M.A. 52, 46 C.M.R. 52, 56
    (1972).

[^132]: United States v. Moore, 2 M.J. 749 (A.F.C.M.R. 1977) (decided 14
    January) and United States v. Baker, 2 M.J. 360 (A.F.C.M.R. 1977)
    (decided 19 January 1977).

[^133]: United States v. Moore, 2 M.J. at 753; United States v. Baker, 2
    M.J. at 363.

[^134]: United States v. Moore, 2 M.J. at 754; United States v. Baker, 2
    M.J. at 364. Both accomplices testified under grants of immunity,
    testified to their extensive drug usage (including heroin), and
    admitted lying in pretrial statements about the extent of their drug
    involvement.

[^135]: United States v. Moore, 2 M.J. at 754.

[^136]: United States v. Baker, 2 M.J. at 365. At the time, the sale of
    drugs was prosecuted under Article 134 (UCMJ art. 134, 10 U.S.C. §
    934) as conduct prejudicial to good order and discipline. It was a
    defense to selling illegal drugs that the accused was acting merely
    as an agent or conduit for the seller or buyer. United States v.
    Fruscella, 21 U.S.C.M.A. 26, 44 C.M.R. 80, 81 (1971). Since the
    possession of the illegal drugs was not a lesser-included offense of
    sale, this could be a very effective defense. As of 1 October 1982,
    the military began prosecuting sales of drugs as transfers. *See*
    Exec. Order No. 12,383 (1982). The term was later changed to
    "distribute." UCMJ art. 112a, 10 U.S.C. § 912(a) (1983). This
    successfully eliminated the agency defense.

[^137]: United States v. Lee, 6 M.J. 96 (C.M.A. 1978).

[^138]: *Id*. at 98 (Fletcher, C.J., concurring).

[^139]: United States v. Young, 11 M.J. 634 (A.F.C.M.R. 1981).

[^140]: *Id.* at 636-37.

[^141]: *Id*. at 637 (quoting UCMJ art. 25(d)(2), 10 U.S.C. §
    825(d)(2)).

[^142]: *Id*.

[^143]: *Id*. (citing UCMJ art. 66(c), 10 U.S.C. § 866(c)).

[^144]: United States v. Rehberg, 15 M.J. 691 (A.F.C.M.R. 1983).

[^145]: *Id*. at 693.

[^146]: United States v. Fisher, 21 M.J. 327 (C.M.A. 1986).

[^147]: [Manual for Courts-Martial, United States]{.smallcaps}, R.C.M.
    1006(d)(3)(A) (1995 ed.), ormerly found in ¶ 76b(2) of the1951 and
    1969 *Manuals*.

[^148]: United States v. Fisher, 21 M.J. at 328.

[^149]: *Id.* at 328-29 (citations omitted).

[^150]: *Id.* at 329 n.2.

[^151]: United States v. Oxford, 21 M.J. 983 (N.M.C.M.R. 1986).

[^152]: United States v. Stephen, 15 U.S.C.M.A. 314, 36 C.M.R. 286
    (1965)

[^153]: United States v. Lell, 16 U.S.C.M.A. 161, 36 C.M.R. 317 (1966).

[^154]: United States v Oxford, 21 M.J. at 987.

[^155]: United States v. Fisher, 21 M.J. 327 (C.M.A. 1986).

[^156]: United States v. Oxford, 21 M.J. at 987.

[^157]: United States v. Jordan, 24 M.J. 573, 576 (N.M.C.M.R. 1987).

[^158]: United States v. McKinnie, 32 M.J. 141 (C.M.A. 1991).

[^159]: *Id.* at 144.

[^160]: *Id*. at 144-45.

[^161]: United States v. Sanders, 34 M.J. 1086 (A.F.C.M.R. 1992).

[^162]: *Id.* at 1091.

[^163]: *Id*. at 1093.

[^164]: United States v. Gillette, 35 M.J. 468 (C.M.A. 1992).

[^165]: *Id.* at 469.

[^166]: *Id*. at 470.

[^167]: United States v. Gittens, 39 M.J. 328 (C.M.A. 1994).

[^168]: *Id.* at 331.

[^169]: United States v. Gillespie, 47 M.J. 750 (A.F.Ct.Crim.App. 1997)
    (citing United States v. Harman, 627 F.2d 7 (6^th^ Cir. 1980);
    United States v. Stulga, 584 F.2d 142 (6^th^ Cir. 1978)).

[^170]: United States v. McCue, 3 M.J. 509 (A.F.C.M.R. 1977).

[^171]: United States v. Nolte, 440 F.2d 1124 (5^th^ Cir.), *cert.
    denied*, 404 U.S. 862, 92 S. Ct. 49, 30 L. Ed. 2d 106 (1971).

[^172]: United States v. McCue, 3 M.J. at 511 (quoting United States v.
    Nolte, 440 F.2d at 1126).

[^173]: United States v. McCue, 3 M.J. at 512.

[^174]: United States v. Allison, 8 M.J. 143 (C.M.A. 1979).

[^175]: The defense cited the *Manual* which limited its discussion to
    prosecution witnesses and state cases, while the government cited
    federal cases: United States v. Urdiales, 523 F.2d 1245 (5^th^ Cir.
    1975), *cert. denied*, 426 U.S. 920, 96 S. Ct. 2625, 49 L. Ed. 2d
    373 (1976); United States v. Nolte, 440 F.2d 1124 (5^th^ Cir.),
    *cert. denied*, 404 U.S. 862, 92 S. Ct. 49, 30 L. Ed. 2d 106 (1971).

[^176]: United States v. Allison, 8 M.J. at 144.

[^177]: *Id*. at 144-45 n.1 (citing Cool v. United States, 409 U.S. 100,
    103, 93 S. Ct. 354, 357, 34 L. Ed. 2d 335 (1972)). The instruction
    condemned in *Cool* advised the jury that "testimony of an
    accomplice may alone and uncorroborated support your verdict of
    guilty of the charges in the Indictment if believed by you to prove
    beyond a reasonable doubt the essential elements of the charges in
    the Indictment."

[^178]: United States v. Davis, 32 M.J. 166 (C.M.A. 1991).

[^179]: *Id.* at 167.

[^180]: United States v. Gillespie, 47 M.J. 750 (A.F.Ct.Crim.App. 1997).

[^181]: United States v. Davis, 32 M.J. 166 (C.M.A. 1991).

[^182]: United States v. Gillespie, 47 M.J. at 756-57.

[^183]: *Id*. at 756 (quoting United States v. Stulga, 584 F.2d 142, 144
    (6^th^ Cir. 1978)).

[^184]: The law of accomplices was found in the *Manual*'s evidentiary
    chapters until the Military Rules of Evidence were adopted in 1980.
    Since then, the rules were found in chapters covering procedural
    rules and then, in 1984, the discussion to the Rules for
    Courts-Martial.

[^185]: UCMJ art. 36(a), 10 U.S.C. § 836(a) (1950). In addition to
    statutes, the President has traditionally exercised power to make
    rules for courts-martial pursuant to his authority as
    commander-in-chief. [Manual for Courts-Martial, United
    States,]{.smallcaps} A21-1 (1995 ed.) (citing [U.S.
    Const]{.smallcaps}. art. II, § 2, cl. 1).

[^186]: United States v. Scheffer, 523 U.S. \_\_, 118 S. Ct. 1261, 140
    L. Ed. 2d 413 (1998).

[^187]: [Manual for Courts-Martial, United States, 1951, ¶
    153]{.smallcaps}*a*.

[^188]: United States v. Winborn, 14 U.S.C.M.A. 277, 34 C.M.R. 57
    (1963).

[^189]: Department of the Army Pamphlet 27-2, *Analysis of Contents
    Manual for Courts-Martial, United States, 1969 Revised Edition*
    27-42 (July 1970).

[^190]: [Manual for Courts-Martial, United States,]{.smallcaps} A21-1
    (1995 ed.).

[^191]: Since 1983, decisions of the Court of Military Appeals may be
    appealed to the Supreme Court. UCMJ art. 67a, 10 U.S.C. § 867a
    (1983).

[^192]: Manual for Courts-Martial, United States, R.C.M. 918(c)
    Discussion (1995 ed.).

[^193]: An example of the old standard: "Further, I would like to
    instruct the court that the credibility of a witness is his
    worthiness of belief. The court may ordinarily draw its own
    conclusions as to the credibility of a witness and attach such
    weight to his evidence as his credibility may warrant." United
    States v. Bey, 4 U.S.C.M.A. 665, 16 C.M.R. 239, 242 (1954). The
    current credibility instruction reads:

    > You have the duty to determine the believability of the witnesses.
    > In performing this duty you must consider each witness'
    > intelligence, ability to observe and accurately remember,
    > sincerity and conduct in court, and prejudices and character for
    > truthfulness. Consider also the extent to which each witness is
    > either supported or contradicted by other evidence; the
    > relationship each witness may have with either side; and how each
    > witness might be affected by the verdict. In weighing a
    > discrepancy (by a witness) (or) (between witnesses), you should
    > consider whether (it) (they) resulted from innocent mistake or
    > deliberate lie. Taking all these matters into account, you should
    > then consider the probability of each witness' testimony and the
    > inclination of the witness to tell the truth. The believability of
    > the witness' testimony should be your guide in evaluating
    > testimony and not the number of witnesses called. (These rules
    > apply equally to the testimony given by the accused.)

    Department of the Army Pamphlet 27-9, *Military Judges' Benchbook* ¶
    7-7-1 (Sept. 30, 1996).

[^194]: United States v. Sanders, 34 M.J. 1086, 1091 (A.F.C.M.R. 1992).

[^195]: R.C.M. 920(e) gives a list of required instructions. It contains
    no mention of an instruction on accomplice testimony or the weighing
    of the credibility of witnesses. R.C.M. 920(e)(7) provides that
    instructions on findings shall include "Such other explanations,
    descriptions, or directions as may be necessary and which are
    properly requested by a party or which the military judge
    determines, sua sponte, should be given." The discussion to R.C.M.
    920(e) states: "See R.C.M. 918(c) and discussion as to reasonable
    doubt and other matters relating to the basis for findings which may
    be the subject of an instruction." [Manual for Courts-Martial,
    United States,]{.smallcaps} R.C.M. 920 (1995 ed).

[^196]: United States v. Sanders, 34 M.J. at 1092.

[^197]: [Manual for Courts-Martial, United States,]{.smallcaps} Part I ¶
    4 Discussion (1995 ed.); *see* [Manual for Courts-Martial, United
    States,]{.smallcaps} A21-3 (1995 ed.).

[^198]: UCMJ art. 36(a), 10 U.S.C. § 836(a) (1950); United States v.
    Davis, 47 M.J. 484, 486 (C.A.A.F. 1998).

[^199]: United States v. Winborn, 14 U.S.C.M.A. 277, 34 C.M.R. 57
    (1963).

[^200]: The service courts of criminal appeals have fact-finding powers
    under the Code. The service courts of criminal appeals:

    > may affirm only such findings of guilty . . . as it finds correct
    > in law and fact and determines, on the basis of the entire record
    > should be approved. In considering the record, it may weigh the
    > evidence, judge the credibility of witnesses, and determine
    > controverted questions of fact, recognizing that the trial court
    > saw and heard the witnesses.

    UCMJ art. 66(c), 10 U.S.C. § 866(c). Of course, the service courts
    of criminal appeals may exercise this authority only in cases in
    which the approved sentence includes death, a punitive discharge, or
    confinement for one year or more. UCMJ art. 66(b), 10 U.S.C. §
    866(b).

[^201]: [Federal Judicial Center,]{.smallcaps} [Pattern Criminal Jury
    Instructions]{.smallcaps} 32 (1988); [Edward J. Devitt & Charles B.
    Blackmar, 1 Federal Jury Practice and Instructions § 17.06
    (]{.smallcaps}3d ed. 1978).

[^202]: United States v. Gillette, 35 M.J. 468, 470 (C.M.A. 1992).

[^203]: United States v. McCue, 3 M.J. 509 (A.F.C.M.R. 1977); *accord*
    United States v. Gillespie, 47 M.J. 750 (A.F.Ct.Crim.App. 1997).

[^204]: United States v. Gillespie, 47 M.J. at 756 (quoting the
    instruction given in United States v. Stulga, 584 F.2d 142, 144
    (6^th^ Cir. 1978).

[^205]: United States v. Stulga, 584 F.2d at 144 (6^th^ Cir. 1978).

[^206]: United States v. Stulga, 531 F.2d 1377, 1380 (6^th^ Cir. 1976).

[^207]: *Id*.

[^208]: Cool v. United States, 409 U.S. 100, 93 S. Ct. 354, 34 L. Ed. 2d
    335 (1972).

[^209]: United States v. Stulga, 584 F.2d at 144.

[^210]: United States v. Rehberg, 15 M.J. 691,694 (A.F.C.M.R. 1983);
    *see also* United States v. Matias, 24 M.J. 356, 359 (C.M.A. 1987)
    (\"There is no additional legal requirement that the testimony of a
    competent witness who is also generally regarded as a 'liar' be
    corroborated.").

[^211]: *See* United States v. Young, 11 M.J. 634, 637 (A.F.C.M.R. 1981)
    (Mahoney, J., dissenting).

[^212]: United States v. Scheffer, 523 U.S. \_\_, 118 S. Ct. 1261, 140
    L. Ed. 2d 413 (1998) (affirming President's authority to promulgate
    Mil. R. Evid. 707 prohibiting admission of polygraph evidence).

[^213]: United States v. Winborn, 14 U.S.C.M.A. 277, 34 C.M.R. 57
    (1963).