U.S. v. Jones, 52 M.J. 60

First Principles: Constitutional Matters: Right to Present a Defense

1. the Fifth Amendment, Article 31(a) and (d), UCMJ, the warning requirements, and the Sixth Amendment right to confrontation have the combined effect of requiring that a criminal defendant be afforded a meaningful opportunity to present a complete defense

Military Justice Personnel: Convening Authority: Immunity, Grants of

1. a grant of immunity is a unilateral act of the convening authority which removes certain protections, may be offered to secure testimony, and may be enforced through various means; only testimonial immunity is necessary to overcome the privileges under the Firth Amendment and Article 31
2. formal immunity allows the government to compel the witness to testify or suffer the alternative consequences, eliminates post-trial issues over the scope and extent of the immunity, and assists to build public confidence by eliminating miscommunication
3. de facto immunity arises when there is an after-the-fact determination based on a promise by a person with apparent authority to make it that the individual will not be prosecuted; evidence derived from such de facto immunity will not be admissible unless there is an independent source for the evidence or charges
4. informal immunity, a practice which has not been addressed specifically as far as the military justice system goes, exists when there is a voluntary agreement between a government official and a witness not to prosecute that witness based on his or her testimony, and may give rise to a judicial determination that the actions taken and the promises made constitute de facto immunity; under informal immunity, the individual may not be prosecuted for the refusal to testify

Core Criminal Law Subjects: Motions, Generally: Merits

1. standing determines whether a party to a lawsuit may move to suppress evidence or dismiss charges; standing is conferred to allow a moving party with a personal stake in the outcome to enforce his or her rights or to prevent a serious risk of unreliable evidence being received at the movant’s trial
2. standing will not be granted to one person to challenge violations of another’s rights under Miranda v. Arizona, 384 U.S. 436 (1966), Article 31(b), UCMJ, and the Fifth Amendment right to remain silent as the privileges thereunder are personal ones that may be exercised or waived at the discretion of the individual holder of the privilege
3. an accused has standing to object to when the actions of the government impact on the reliability of the evidence presented against him at trial, e.g., coerced confessions, unlawful command influence, interference with the rights of confrontation or cross-examination, and interference with the right to present evidence, even where those government actions may have violated rights held personally by other than the accused

Core Criminal Law Subjects: Motions, Generally: Standing

1. standing determines whether a party to a lawsuit may move to suppress evidence or dismiss charges; standing is conferred to allow a moving party with a personal stake in the outcome to enforce his or her rights or to prevent a serious risk of unreliable evidence being received at the movant’s trial
2. standing will not be granted to one person to challenge violations of another’s rights under Miranda v. Arizona, 384 U.S. 436 (1966), Article 31(b), UCMJ, and the Fifth Amendment right to remain silent as the privileges thereunder are personal ones that may be exercised or waived at the discretion of the individual holder of the privilege
3. an accused has standing to object to when the actions of the government impact on the reliability of the evidence presented against him at trial, e.g., coerced confessions, unlawful command influence, interference with the rights of confrontation or cross-examination, and interference with the right to present evidence, even where those government actions may have violated rights held personally by other than the accused

Trial Stages: Pretrial: Discovery

1. requirement of MRE 301(c)(2) to disclose grants of immunity or leniency in exchange for testimony is designed to reinforce the government’s obligation to disclose exculpatory evidence to the defense; but even without the rule, exculpatory material which could be used for impeachment of government witnesses must be disclosed

Trial Stages: Merits: Pretrial Agreements

1. the requirements of RCM 705 that all terms, conditions, and promises of a pretrial agreement be in writing are primarily designed to preclude misunderstandings about the terms of an agreement and to prohibit sub rosa agreements; open plea bargaining is important to ensure proper confrontation and cross-examination

Trial Stages: Merits: Motions

1. standing determines whether a party to a lawsuit may move to suppress evidence or dismiss charges; standing is conferred to allow a moving party with a personal stake in the outcome to enforce his or her rights or to prevent a serious risk of unreliable evidence being received at the movant’s trial
2. standing will not be granted to one person to challenge violations of another’s rights under Miranda v. Arizona, 384 U.S. 436 (1966), Article 31(b), UCMJ, and the Fifth Amendment right to remain silent as the privileges thereunder are personal ones that may be exercised or waived at the discretion of the individual holder of the privilege
3. an accused has standing to object to when the actions of the government impact on the reliability of the evidence presented against him at trial, e.g., coerced confessions, unlawful command influence, interference with the rights of confrontation or cross-examination, and interference with the right to present evidence, even where those government actions may have violated rights held personally by other than the accused

Miscellaneous Matters: Command Influence: Generally

1. a threat to prosecute for failure to comply with a pretrial agreement obligating a witness to testify was not an act constituting improper coercion of a witness; rather, it is a statement of the government’s intent supported by the bargained-for rights of the government in the agreement