United
States v. McKeel, 63 M.J. 81 (military law
recognizes two types of immunity
that may be granted to a military accused; transactional immunity
exempts an
accused from trial by court-martial for one or more offenses under the
code; testimonial
immunity protects an accused against the use of testimony, statements,
and any
information directly or indirectly derived from such testimony or
statements by
that person in a later court-martial; testimonial immunity -- in
contrast to
transactional immunity -- does not bar prosecution of the person who
has
received the grant of immunity).
United
States v. McKeel, 63 M.J. 81 (in the MCM, the
President has restricted the
authority to grant immunity; within the armed forces, only an officer
authorized to serve as a GCMCA may grant immunity; the President has
not
constrained the GCMCA from using a subordinate to convey an offer of
immunity
to the designated person when the GCMCA has approved a specific grant
of
immunity; the GCMCA, however, may not delegate the authority to grant
immunity).
United
States v. McKeel, 63 M.J. 81 (a purported
grant of immunity by an official not
empowered by the President to make such a grant is not valid; at trial,
the
military judge may provide relief tailored to the circumstances if: (1)
a
promise of immunity was made; (2) the accused reasonably believed that
a person
with apparent authority to do so made the promise; and (3) the accused
relied
upon the promise to his or her detriment).
United
States v. McKeel, 63 M.J. 81 (when the promise
of immunity has been made by
an officer having apparent but not actual authority, the remedy
addresses the
extent of detrimental reliance; normally, detrimental reliance upon
apparent
authority can be remedied by measures short of a bar to prosecution,
such as
exclusion of evidence obtained directly or indirectly from the
servicemember’s
reliance or precluding nonevidentiary uses of immunized statements in
the
decision whether to prosecute; if the military judge has provided an
adequate
remedy at trial, no further relief is warranted on appeal; in unique
circumstances, an appellate court may conclude that the only
appropriate remedy
is to dismiss the charges).
United
States v. McKeel, 63 M.J. 81 (when a
servicemember seeks dismissal of
charges based upon a promise of immunity, the servicemember must
demonstrate
that the promise was made by an officer authorized to grant immunity).
2001
United
States v. Ivey, 55 MJ 251 (all three prongs of RCM
704(e)
must be met before a military judge may overrule the decision of a
convening
authority to deny a request for immunity; those prongs are: (1) the
witness
intends to invoke the right against self-incrimination to the extent
permitted
by law if called to testify; (2) the government has engaged in
discriminatory
use of immunity to obtain a tactical advantage, or the government,
through its
own overreaching, has forced the witness to invoke the privilege
against
self-incrimination; and (3) the witness’ testimony is material, clearly
exculpatory, not cumulative, not obtainable from any other source and
does more
than merely affect the credibility of other witnesses).
(there is no right to grants of immunity under the Fifth or Sixth
Amendments).
(a convening authority need not forward an immunity request for
someone not
subject to the UCMJ to the Attorney General if the convening authority
intends
to deny that request; denying such a request for immunity does not
impact on
the purpose of RCM 704(e) which is to avoid interfering with the
prosecution of
civilian federal cases).
(a trial counsel or staff judge advocate would violate RCM 704(c)(3)
if he
or she de facto denied a request for immunity by withholding it
from the
convening authority; the rule contemplates that all requests for
immunity, from
either the prosecution or the defense, will be submitted to the
convening
authority for a decision).
(any error by the military judge in deciding that requests for
immunity had
been de facto denied before those requests were presented to
the
convening authority was harmless and had no substantial influence on
the
findings where the convening would have denied the requests in any
event).
(any error by the military judge in deciding that requests for
immunity had
been de facto denied before those requests were presented to
the
convening authority was not of constitutional dimension).
(military judge did not abuse his discretion by refusing to abate
proceedings where he found that two prongs of RCM 704(e) had not been
met with
respect to defense immunity requests; the judge’s finding that there
had been
no discriminatory use of immunity or government overreaching was not
clearly
erroneous, and proffered testimony was not clearly exculpatory).
1999
United
States v. Jones, 52 MJ 60 (a grant of immunity is a
unilateral
act of the convening authority which removes certain protections, may
be
offered to secure testimony, and may be enforced through various means;
only
testimonial immunity is necessary to overcome the privileges under the
Firth
Amendment and Article 31).
(formal immunity allows the government to compel the witness to
testify or
suffer the alternative consequences, eliminates post-trial issues over
the
scope and extent of the immunity, and assists to build public
confidence by
eliminating miscommunication).
(de facto immunity arises when there is an after-the-fact
determination based on a promise by a person with apparent authority to
make it
that the individual will not be prosecuted; evidence derived from such de
facto immunity will not be admissible unless there is an
independent source
for the evidence or charges).