Notice to the accused
- Mil. R. Evid. 301(c)(2). Written grant shall be served on accused prior to arraignment or within a reasonable time before witness testifies.
- Remedy: continuance, prohibit or strike testimony, or other order as required.
- United States v. Tuscan , 67 M.J. 592 (C.G. Ct. Crim. App. 2009). Trial counsel notified defense of government witness immunized testimony the morning of trial. Witness did not testify until after lunch on the second day of trial. Defense did not ask for a continuance. The CGCCA held that this was a reasonable time before the witness testified and therefore the testimony was properly allowed. However, the CGCCA expresses concern that the government was potentially “hiding the ball.” Id. at 595.
- Scope of the immunity.
- Prosecution after testimonial immunity.
a. Independent evidence. (1) Government must show that evidence used to prosecute accused is completely independent of immunized testimony. Tips to avoid problems: (1) screen all immunized data from the trial team; (2) catalogue or seal all data to provide a paper trail; and, (3) personnel who had access to the immunized testimony should have no contact with the prosecution team. See United States v. England , 30 M.J. 1030 (A.F.C.M.R. 1990), aff’d , 33 M.J. 37 (C.M.A. 1991). (2) Government can use neither the immunized testimony nor its fruits, to include any investigatory leads. It is a question of fact whether the government has a legitimate, independent source for its evidence. In United States v. Boyd , 27 M.J. 82 (C.M.A. 1988), the findings and sentence were set aside and charges dismissed because testimony of a witness (Wills) against the accused was derived from the prior immunized testimony of the accused against Wills. government did not meet its burden of showing that the accused’s testimony did not contribute to Wills’ decision to make a statement against the accused. See also United States v. Mapes , 59 M.J. 60 (C.A.A.F. 2003); but see United States v. McGeeney , 44 M.J. 418 (C.A.A.F. 1996).
b. Non-evidentiary use of immunized statements. (1) United States v. Kastigar , 406 U.S. 441 (1972). The Supreme Court held that prosecutorial authorities are prohibited from using testimony that is compelled by grants of immunity. In United States v. Kimble , 33 M.J. 284 (C.M.A. 1991), the CMA held that immunity protection described in Kastigar also extend to “non-evidentiary uses” of immunized statements, such as the decision to prosecute. See also United States v. Mapes , 59 M.J. 60 (C.A.A.F. 2003). (2) Accordingly, the impact of testimonial immunity goes beyond the admissibility of certain statements. The government must show by preponderance of the evidence that the decision to prosecute was untainted by evidence received as a result of immunity grant. See United States v. McGeeney , 41 M.J. 544 (N-M. Ct. Crim. App. 1994); see also Cunningham v. Gilevich , 36 M.J. 94 (C.M.A. 1992). (3) If the government cannot show that the decision to prosecute the accused was made before immunized statements were provided by accused, the government may not prosecute unless it can show, by a preponderance of the evidence, that the prosecutorial decision was untainted by the immunized testimony. See United States v. Olivero , 39 M.J. 264 (C.M.A. 1994). (4) United States v. Olivero , 39 M.J. 246 (C.M.A. 1994). The convening authority gave appellant testimonial immunity regarding his knowledge of other airman’s (TSgt S) drug use. Government did not certify, seal, or memorialize any evidence of appellant’s own drug use prior to this grant. Contrary to his oral, unsworn statement initially provided after immunity grant, the appellant testified at TSgt S’s Article 32 hearing that he had never used drugs with TSgt S. Four days later, Olivero was charged with drug use and perjury. At trial, Olivero moved to dismiss claiming the decision to prosecute was wrongly based on his immunized statements. The CMA agreed. Conviction set aside. Two practice points should be taken from Olivero : (a) If possible, prior to providing a grant of immunity, any evidence that will be used in a subsequent prosecution of the grantee should be segregated and sealed to foreclose later issues regarding improper non-evidentiary use of immunized statements; and, (b) Trial and defense counsel and military judges should make distinctions in their arguments, motions, and rulings between evidentiary and non-evidentiary uses of disputed immunized statements. (5) Olivero is consistent with Cunningham v. Gilevich , 36 M.J. 94 (C.M.A. 1992), where the CMA ruled that prosecutions may not “result from” statements taken in violation of Article 31(d). (6) United States v. Youngman , 48 M.J. 123 (C.A.A.F. 1998). In response to a defense motion, the military judge dismissed only those charges derived directly from the accused’s immunized statement. The CAAF held that the military judge abused his discretion by not determining if the accused’s immunized statement and evidence derived therefrom played “any role” in the decision to prosecute all of the offenses.
- Immunity does not supplant the attorney-client privilege. A witness, testifying under a grant of immunity can still assert an attorney-client privilege. Further, disclosure of attorney-client confidences while testifying under a grant of immunity does not constitute a voluntary waiver of the attorney-client privilege. See United States v. Romano , 46 M.J. 269 (C.A.A.F. 1997).
- Prosecution after testimonial immunity.