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Use of immunized testimony “against” the witness
- Impeachment. Immunized testimony from prior court-martial cannot be used to impeach an accused in later court-martial.
United States v. Daley , 3 M.J. 541 (A.C.M.R. 1977).
- Post-Trial Matters. Immunized testimony can be used by an SJA to refute claims in a clemency petition that the terms of the immunity agreement were breached. The CMA termed these “matters . . . collateral to a criminal trial.”
United States v. Vith , 34 M.J. 277 (C.M.A. 1992) (Judge Gierke, concurring in the result, disagreed, finding this limited use violated the Fifth Amendment).
- Subsequent Prosecutions. Neither type of immunity bars prosecution for perjury, false swearing, false official statement, or failure to comply with an order to testify. RCM 704(b); Mil. R. Evid. 301(c)(1).