U.S. v. Mapes, 59 M.J. 60

First Principles: Constitutional Matters: Generally

1. it is a fundamental principle that the Constitution each servicemember swears to defend affords to every servicemember Constitutional protections

First Principles: Constitutional Matters: Confessions

1. a servicemember’s protection against compulsory self-incrimination is unparalleled in the civilian sector; this fundamental right is protected by both the Fifth Amendment and Article 31, UCMJ, which provides additional protection
2. a servicemember’s right against self-incrimination, however, is neither absolute nor inviolate; the power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence
3. the tension between the governmental power to compel testimony and a citizen’s right to protection against self-incrimination is reconciled in immunity statutes; immunity statutes are also part of our constitutional fabric; an immunity statute permits the Government to compel a citizen to provide information but prevents governmental use of the information to prosecute the citizen

Military Justice Personnel: Convening Authority: Immunity, Grants of

1. a general court-martial convening authority may grant a servicemember immunity from the use of testimony, statements, or any other information derived directly or indirectly from such immunized testimony or statements in a subsequent court-martial; after receiving such immunity, an immunized servicemember may be ordered to give a statement or to testify because the grant of immunity removes the right to refuse to cooperate on self-incrimination grounds; neither the testimony of an immunized soldier, nor any evidence derived from such testimony, may be used against the immunized soldier at a subsequent trial, other than for perjury, false swearing, making a false official statement, or failure to comply with an order to testify

Core Criminal Law Subjects: Evidence: Immunized Testimony

1. in Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court held that prosecutorial authorities may not use testimony compelled by a grant of immunity; we have construed "use" to include non-evidentiary use such as the decision to prosecute; other federal appellate courts have construed Kastigar to hold that the Government may not alter its investigative strategy based on immunized testimony; finally, the Government may not use the testimony of a witness which was influenced by the immunized testimony
2. under Kastigar, the Government has a heavy burden to show non-use of immunized testimony; the Government must do more than negate the taint; it must affirmatively prove that its evidence is derived from a legitimate source wholly independent of the compelled testimony; an appellant is not dependent for the preservation of his rights upon the integrity and good faith of the prosecuting authorities; prosecution may proceed only if the Government shows, by a preponderance of the evidence, that the decision to prosecute was untainted by immunized testimony
3. the question of whether the Government has shown, by a preponderance of the evidence, that it has based the accused’s prosecution on sources independent of the immunized testimony is a preliminary question of fact; this Court will not overturn a military judge’s resolution of that question unless it is clearly erroneous or is unsupported by the evidence
4. factors to be considered in deciding whether the Government’s evidence against an accused was obtained from a source wholly independent of his immunized testimony include: (1) did the accused's immunized statement reveal anything which was not already known to the Government by virtue of the accused's own pretrial statement; (2) was the investigation against the accused completed prior to the immunized statement; (3) had the decision to prosecute accused been made prior to the immunized statement; and, (4) did the trial counsel who had been exposed to the immunized testimony participate in the prosecution
5. the Government failed to show that its prosecution of appellant was untainted by his immunized testimony where appellant’s immunized statement revealed important new information which was not already known to the Government, where the investigation against appellant was not completed prior to his immunized statement and had reached an impasse, where charges against appellant were neither preferred nor referred until months after both appellant and his accomplice were granted immunity and provided statements implicating themselves in all of the charged offenses, and where the record demonstrated that the prosecution needed the immunized testimony of appellant to obtain evidence to prove several of the charged offenses
6. the "Chinese wall" constructed by the Government to separate the two teams investigating and prosecuting appellant and his accomplice was ineffective in protecting appellant's immunized testimony from being exploited by the command in resolving his case where the convening authority, the SJA, and the principal CID investigator were tainted by knowledge of the dual investigations; both the convening authority and the SJA were privy to appellant’s immunized statement when the decision was later made to prosecute him; and the investigator supervised both investigations
7. precautions such as ‘cataloguing’ or ‘freezing’ the evidence known to the Government before taking the immunized testimony will help the Government carry its burden in a subsequent trial of the immunized witness; and before immunized testimony is given, all reasonable efforts should be made by prosecution officials to memorialize what evidence is in their possession and what prosecutorial decisions have already been made
8. the prosecution improperly used appellant’s immunized testimony where the prosecution induced an immunized appellant to testify against his accomplice, exploited this evidence to induce his accomplice to provide immunized information implicating appellant, and finally used his accomplice's statement to prosecute appellant; we condemn this exploitation of immunized testimony and we reject the tactic of inducing each witness to testify against the other
9. in the present case, the prosecution failed to carry the heavy burden to establish that appellant’s immunized testimony did not trigger his accomplice’s immunized disclosures; the military judge's finding of fact that the accomplice provided an immunized statement against appellant to get the best sentencing deal for himself is clearly erroneous as it is not supported by a preponderance of the evidence; although the accomplice claimed he made his statement out of a desire to come clean and to obtain a favorable pretrial agreement, there was little evidence that he came to his conclusion to cooperate before notice to him that appellant would be an immunized witness at his Article 32 hearing, and he implicated appellant only after appellant testified against him at the Article 32 hearing
10. because the Government failed to carry its heavy burden to show that it did not exploit appellant’s immunized testimony to induce his accomplice's cooperation and incriminating disclosures and failed to affirmatively prove that its evidence was derived from a legitimate source wholly independent of the immunized testimony, the decision to prosecute appellant was tainted and the remedy was to dismiss those charges affected by this evidence

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Immunity

1. under Kastigar, the Government has a heavy burden to show non-use of immunized testimony; the Government must do more than negate the taint; it must affirmatively prove that its evidence is derived from a legitimate source wholly independent of the compelled testimony; an appellant is not dependent for the preservation of his rights upon the integrity and good faith of the prosecuting authorities; prosecution may proceed only if the Government shows, by a preponderance of the evidence, that the decision to prosecute was untainted by immunized testimony
2. the question of whether the Government has shown, by a preponderance of the evidence, that it has based the accused’s prosecution on sources independent of the immunized testimony is a preliminary question of fact

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the question of whether the Government has shown, by a preponderance of the evidence, that it has based the accused’s prosecution on sources independent of the immunized testimony is a preliminary question of fact; this Court will not overturn a military judge’s resolution of that question unless it is clearly erroneous or is unsupported by the evidence