U.S. v. Allen, 59 M.J. 478

First Principles: Constitutional Matters: Confessions

1. the Government may not compel a person to make an incriminating statement
2. through a grant of immunity coextensive with the privilege against self-incrimination, the Government may require a person to make a statement that would otherwise be incriminating

Core Criminal Law Subjects: Evidence: Immunized Testimony

1. if a person provides information under a grant of immunity, the Government in a subsequent criminal prosecution must affirmatively demonstrate that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony; a grant of immunity by one jurisdiction within the federal structure, such as a State, provides equivalent protections against use of the information by other jurisdictions, such as another State or the Federal Government
2. the underlying principle furthered by a grant of testimonial immunity is that the witness and the Government should be left in substantially the same position as if the witness had claimed the privilege against self-incrimination; we have recently described this principle as extracting a quid pro quo from the Government for the information it compels from the citizen; in addition to requiring that the Government abstain from using the compelled information in any way to prosecute the citizen, this quid pro quo also requires that the Government, if challenged in court, demonstrate that it has followed a process to ensure it has not exploited the compelled information
3. the Government may not rely upon or use immunized testimony in making the decision to prosecute; the burden is upon the Government in such a case to demonstrate by a preponderance of the evidence, that the prosecutorial decision was untainted by the immunized testimony
4. in this case, the accused made incriminating statements to a family therapist pursuant to a grant of immunity under state law; under Kastigar, the Government had to demonstrate that the accused’s later incriminating statement to NCIS was derived from a legitimate source wholly independent of his earlier inculpatory statement to the therapist; the record demonstrates that the accused’s statement was the product of his own desire to confess, and was not derived by the Government from his earlier statement to the therapist; the idea of confessing to NCIS originated with the accused and he steadfastly resisted the advice of others who urged him to defer making a statement to NCIS; even after receiving a cleansing warning from the NCIS agent, the accused indicated that he understood his Article 31(b) and Miranda rights and that he desired to waive them
5. in summary, where the evidence showed that the accused wanted to make a statement to NCIS, that he was determined to confess, that he did not waver from that course, and that his confession to NCIS was knowingly and voluntarily made, and where his decision to confess did not result from Government exploitation of his immunized testimony, the Government met its burden of affirmatively demonstrating that his statement was derived from a legitimate source wholly independent of the compelled testimony
6. under RCM 907(b)(2)(D)(ii), an allegation of improper use of immunized testimony in the prosecutorial decision constitutes a waivable basis for a motion to dismiss
7. although the accused in this case moved to suppress the testimonial use of his confession to NCIS, he did not move to dismiss the charges or otherwise allege at trial that the Government improperly used immunized testimony in the course of making the decision to prosecute; as a result, we conduct a plain error review; that is, we assess (1) whether there was an error; (2) if so, whether the error was plain or obvious; and (3) if the error was plain or obvious error, whether it was prejudicial
8. although the investigation into the injuries to the accused’s child initially focused on the accused’s wife, the accused later became a suspect when the child was injured when he was in the accused’s sole custody; the focus of the investigation had shifted sharply to the accused a day before he made his statements to the family therapist and others; moreover, his statement to NCIS, which is otherwise admissible, provided an independent basis for making the decision to prosecute; under these circumstances, the preponderance of the evidence demonstrates that the prosecutorial decision was untainted by the accused’s statement to the therapist; there was no error, much less plain error, in not dismissing the charges