- De facto immunity.
a.A person other than GCMCA may create a situation of
de facto immunity when he or she: (1) manifests apparent authority to grant immunity; (2) makes a representation that causes the accused to honestly and reasonably believe that he will not be prosecuted if he fulfills a certain condition; (3) has at least the tacit approval of the GCMCA; and, (4) the accused relies to his or her detriment on the representations. An accused may complete the creation of a de facto grant of immunity when he relies on the representation to his detriment by actually fulfilling the condition suggested by the government.
b. Analysis. (1) Where an accused honestly and reasonably believes that an official has promised him transactional immunity and that official has the lawful authority to do so, then the promise is the functional equivalent of a grant of immunity.37 (2) However, statements by an official will not provide a foundation for a claim of de facto immunity absent some measure of detrimental reliance by the accused.38 (3) Despite a showing of detrimental reliance, remedial measures by the military judge at trial may still permit prosecution. 39 37 Samples v. Vest , 38 M.J. 482, 487 (C.M.A. 1994); see also Cooke v. Orser , 12 M.J. 335 (C.M.A. 1982) (SJA oral promise of immunity to officer suspected of espionage enforced on grounds of due process); United States v. Wagner , 35 M.J. 721 (A.F.C.M.R. 1992) (unit commander’s agreement not to prosecute accused if he refrained from further child sex abuse and got treatment created de facto immunity that was not breached even though accused discontinued counseling after 15 months); United States v. Jones , 52 M.J. 60 (C.A.A.F. 1999) ( de facto transactional immunity resulted when the Chief of Military Justice and DSJA entered into an unwritten agreement with three co- accused that the government would not court-martial them if they accepted Article 15 punishment, paid restitution, and testified against the accused.) An early discussion of de facto immunity was set forth in United States v. Churnovic , 22 M.J. 401 (C.M.A. 1986). Representations by a ship’s senior NCO that ship’s XO had promised no adverse action would be taken against person who gave information about or turned in drugs was an unlawful inducement that rendered the accused’s statements and all derivative evidence inadmissible under Article 31(d). In dicta, Chief Judge Everett’s lead opinion stated that “No reason exists why a promise of immunity cannot be enforced if it was made with express or tacit authorization from the ship’s captain, who would convene special court-martial to try members of his crew.” The defense in Churnovic failed to meet burden of showing immunity was in fact promised. Note: RCM 704(c) discussion indicates “equitable immunity” is possible. 38 United States v. Conklan , 41 M.J. 800 (A. Ct. Crim. App. 1995). Representations by a battalion commander, indicating that the Army would not prosecute accused for carnal knowledge offense, did not constitute offer of de facto
transactional immunity, in light of commander’s failure to call upon accused to fulfill any condition in exchange for whatever benefit was conferred. Representation was merely gratuitous statement of present intent subject to change in sole discretion of the convening authority. The accused’s reenlistment after commander’s statement was not sufficient detrimental reliance to give rise to de facto immunity; reenlistment was not bargained for or otherwise contemplated as a condition of government’s initial decision not to prosecute. 39 United States v. McKeel , 63 M.J. 81 (C.A.A.F. 2006). Accused admitted to a military investigator that he engaged in sexual intercourse with a female shipmate when she was too intoxicated to consent. When the investigative report was forwarded to the chief petty officer who served as the ship’s senior enlisted person responsible for military justice matters he promised the accused that if he accepted nonjudicial punishment and waived his right to an administrative discharge board there would no court-martial and the accused would be
- Unlawful inducement – Article 31(d).
a. A situation akin to equitable testimonial immunity arises following violations of Article 31(d).
b. To be an unlawful inducement under Article 31(d), the improper action must be undertaken by someone acting in a law enforcement capacity or in a position superior to the person making the confession.40
- Regulatory Immunity. DoD and DA Family advocacy regulations generally do not create a bar to prosecution against self-referred child abusers. Further, consideration and adherence to regulatory policies and criteria set out in these regulations are not conditions precedent to disposition by courts-martial. Although DoD and DA policy may be internally inconsistent in that they both encourage and deter self-referral, they do not infringe on any rights recognized by the Constitution, the UCMJ, or the CAAF decision.41