In certain cases involving more than one participant, the interests of justice may make it advisable to grant immunity, either transactional or testimonial, to one or more of the participants in the offense. Issuance of a grant of immunity is in consideration for an individual testifying for the government or the defense in the investigation and/or the trial of the principal offender. Transactional immunity means immunity from prosecution for any offense or offenses that the compelled testimony relates. Testimonial immunity means immunity from the use of testimony or other information compelled under an order to testify (or any information directly or indirectly derived from such testimony or other information).
The authority to grant either transactional or testimonial immunity to a witness is reserved to officers exercising general court-martial jurisdiction (OEGCMJs). This authority may be exercised in any case, whether or not formal charges have been preferred, and whether or not the matter has been referred for trial. The approval of the Attorney General of the United States on certain orders to testify may be required, as outlined in the following paragraph.
A written recommendation that a certain witness be granted either transactional or testimonial immunity in consideration for testimony essential to the government or to the defense must be sent to the OEGCMJ. A sample proposed grant of immunity request from a TC is shown in figure 6-11. If the case has been referred for trial, the TC sends the recommendation. If the case has not been referred for trial, then the pretrial investigating officer, the counsel or recorder of any other fact-finding body, or the investigator when no charges have been preferred sends the recommendation. The recommendation must state in detail why the testimony of the witness is so essential or material that the interests of justice cannot be served without the grant of immunity. Before acting on the recommendation, the OEGCMJ refers it to his or her SJA for consideration and advice. If approved, a copy of the written grant of immunity must be served upon the accused or his or her DC within a reasonable time before the witness testifies. Additionally, if any witness is expected to testify in response to a promise of leniency, the terms of the promise of leniency must be reduced to writing and served upon the accused or his or her DC in the same manner as a grant of immunity. Figure 6-12 illustrates a sample transactional grant of immunity. Figure 6-13 shows a sample of a testimonial grant of immunity.
When the testimony of a civilian witness is considered necessary at a court-martial, and the civilian witness has refused or is likely to refuse to testify or provide other information on the basis of his or her privilege against self-incrimination, the approval of the Attorney General of the United States, or his or her designee, must be obtained before the OEGCMJ may issue an order to the civilian witness to testify.
In all cases that approval of the Attorney General of the United States is required before issuance of a grant of immunity, the cognizant OEGCMJ sends by message or letter the proposed order to testify and grant of immunity to the Judge Advocate General (JAG).
The order to testify should be in the form set forth in appendix A-1-i(3) of the JAG Manual and as shown in figure 6-14. Requests for assistance will be in writing, and you should allow at least 3 weeks for consideration. The request must contain the following:
l Name, citation, or other identifying information of the proceeding in which the order is to be used
l Name of the individual for whom the immunity is requested
l Name of the employer or company that the witness is associated with
l Date and place of birth, if known, of the witness
l FBI number or local police number, if any, and if known
l Whether any state or federal charges are pending against the prospective witness and the nature of the charges
l Whether the witness is currently incarcerated, under what conditions, and for what length of time
l A brief resume of the background of the investigation or proceeding
l A concise statement of the reasons for the request, including the following information:
What testimony the prospective witness is expected to give
Figure 6-11.-Sample request for a proposed grant of immunity.
Figure 6-12.-Sample transactional grant of immunity.
Figure 6-13.-Sample testimonial grant of immunity.
How this testimony will serve the public interest
Whether the witness has invoked the privilege against self-incrimination, or is likely to invoke the privilege
If the witness is likely to invoke the privilege against self-incrimination, why is it anticipated that he or she will do so
. An estimate as to whether the witness is likely to testify in the event immunity is granted
Figure 6-14.-Sample order to testify.
After a civilian witness immunized has testified, provide the following information to the United States Department of Justice, Criminal Division, Immunity Unit, Washington, DC 20530, via JAG:
. Name, citation, or other identifying information of the proceeding in which the order was requested . Date of the examination of the witness . Name and residence address of the witness
. Whether the witness invoked the privilege against self-incrimination . Whether the immunity order was used . Whether the witness testified pursuant to the order . If the witness refused to comply with the order, whether contempt proceedings were instituted, or are contemplated, and the result of the contempt proceeding, if concluded Provide a copy of this correspondence with a verbatim transcript of the witness' testimony, properly authenticated by the military judge, to JAG at the conclusion of the trial. No testimony given by a civilian witness following an order to testify can be used against him or her in any criminal case, except a prosecution for perjury, giving a false statement, or failing to comply with the order in some other manner.
In all cases involving national security or foreign relations of the United States, the cognizant OEGCMJ sends in the form prescribed in the JAG Manual, section 0139, any proposed grant of immunity to JAG for consultation with the Department of Justice.