Immunity In The Military Court Martial System

Immunity. Immunity for an individual is generally sought when that individual has
information necessary to the public interest, including the needs of good order and
discipline, but has refused or is likely to refuse to testify or provide the information on
the basis of the privilege against self-incrimination. [5th Amendment to the U.S.
Constitution or Article 31 of the Uniform Code of Military Justice (Section 831 of Title
10, United States Code).]

There are two types of immunity that may be granted under the military’s justice
system. The first type of immunity is “testimonial immunity.” Testimonial immunity,
also called “use” immunity, while still permitting a criminal prosecution, bars the use of a
person’s testimony and statements from being used directly or indirectly against that
person in a subsequent court-martial. The prosecution must be based on evidence
independent of the immunized testimony or statements. The second type of immunity is
“transactional immunity.” This type of immunity bars any subsequent court-martial
action against the immunized person, regardless of the source of the evidence against that
person. Testimonial or “use” immunity is generally preferred because it does not prevent
the government from prosecuting the person based on independently-acquired evidence.

Only a General Court-Martial Convening Authority (GCMCA) may grant

testimonial or transactional immunity. That authority, however, only extends to grants of
immunity over individuals subject to the Uniform Code of Military Justice (UCMJ). The
GCMCA can disapprove an immunity request for a witness not subject to the UCMJ, but
may only approve the request after receiving authorization from the Department of
Justice. If a witness may be considered for Federal prosecution or the case involves
national security issues, then the Department of Justice must also authorize the immunity,
regardless of whether the witness is subject or not subject to the Code.

A grant of immunity must be in writing, signed by the GCMCA, must include a

statement of the authority under which it is made, and must identify the matters to which
it extends.

The rules on immunity are contained at Rule for Courts-Martial (R.C.M.)

704, as supplemented by case law and service regulations.

If you have any questions about court martials, then you should contact an experienced
court martial attorney and military criminal defense lawyer.