MILITARY JUSTICE PERSONNEL: Convening Authority: Immunity, Grants of


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). 


 United States v. Mapes, 59 MJ 60 (a general court-martial convening authority may grant a servicemember immunity from the use of testimony, statements, or any other information derived directly or indirectly from such immunized testimony or statements in a subsequent court-martial; after receiving such immunity, an immunized servicemember may be ordered to give a statement or to testify because the grant of immunity removes the right to refuse to cooperate on self-incrimination grounds; neither the testimony of an immunized soldier, nor any evidence derived from such testimony, may be used against the immunized soldier at a subsequent trial, other than for perjury, false swearing, making a false official statement, or failure to comply with an order to testify).


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).


United States v. Richter, 51 MJ 213 (where witness for whom defense requested immunity was a prosecution target and awaiting trial, the second prong of RCM 704(e) is not met and there is no claim that “[t]he 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.”).

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).

(informal immunity, a practice which has not been addressed specifically as far as the military justice system goes, exists when there is a voluntary agreement between a government official and a witness not to prosecute that witness based on his or her testimony, and may give rise to a judicial determination that the actions taken and the promises made constitute de facto immunity; under informal immunity, the individual may not be prosecuted for the refusal to testify).

Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site