- Decision to grant immunity.
a. Unless limited by superior competent authority, the decision to grant immunity is a matter within the sole discretion of the GCMCA.
b. If a defense request to grant immunity has been improperly denied, the military judge may, upon motion by the defense, grant appropriate relief by directing that the proceedings against the accused be abated.
c. RCM 704(e): The military judge may grant such a motion upon findings that: (1) The witness intends to invoke the right against self-incrimination . . . if called to testify; and (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 . . .; 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.
d. United States v. Richter , 51 M.J. 213 (C.A.A.F. 1999). The accused was one of many actors in a larceny scheme. Prior to trial, the defense asked the convening authority to grant immunity to a defense witness. The convening authority denied the defense request, but granted immunity to five prosecution witnesses. The CAAF held that the military judge did not abuse his discretion when he denied the defense motion to abate the court-martial. The court relied on the three-prong test under RCM 704(e) in reaching its decision. Specifically, the court stated that the three prongs must be read in the conjunctive. Since the defense witness was a prosecution target, the second prong of the rule was not met.
- Order to testify/grant of immunity.
a. RCM 704(d).
b. AR 27-10, Military Justice, Chapter 2 (Investigation and Prosecution of Crimes With Concurrent Jurisdiction).