U.S. v. McKeel, 63 M.J. 81

Military Justice Personnel: Convening Authority: Immunity, Grants of

1. military law recognizes two types of immunity that may be granted to a military accused; transactional immunity exempts an accused from trial by court-martial for one or more offenses under the code; testimonial immunity protects an accused against the use of testimony, statements, and any information directly or indirectly derived from such testimony or statements by that person in a later court-martial; testimonial immunity -- in contrast to transactional immunity -- does not bar prosecution of the person who has received the grant of immunity

Military Justice Personnel: Convening Authority: Immunity, Grants of

1. in the MCM, the President has restricted the authority to grant immunity; within the armed forces, only an officer authorized to serve as a GCMCA may grant immunity; the President has not constrained the GCMCA from using a subordinate to convey an offer of immunity to the designated person when the GCMCA has approved a specific grant of immunity; the GCMCA, however, may not delegate the authority to grant immunity

Military Justice Personnel: Convening Authority: Immunity, Grants of

1. a purported grant of immunity by an official not empowered by the President to make such a grant is not valid; at trial, the military judge may provide relief tailored to the circumstances if: (1) a promise of immunity was made; (2) the accused reasonably believed that a person with apparent authority to do so made the promise; and (3) the accused relied upon the promise to his or her detriment

Military Justice Personnel: Convening Authority: Immunity, Grants of

1. when the promise of immunity has been made by an officer having apparent but not actual authority, the remedy addresses the extent of detrimental reliance; normally, detrimental reliance upon apparent authority can be remedied by measures short of a bar to prosecution, such as exclusion of evidence obtained directly or indirectly from the servicemember’s reliance or precluding nonevidentiary uses of immunized statements in the decision whether to prosecute; if the military judge has provided an adequate remedy at trial, no further relief is warranted on appeal; in unique circumstances, an appellate court may conclude that the only appropriate remedy is to dismiss the charges

Military Justice Personnel: Convening Authority: Immunity, Grants of

1. when a servicemember seeks dismissal of charges based upon a promise of immunity, the servicemember must demonstrate that the promise was made by an officer authorized to grant immunity

Core Criminal Law Subjects: Evidence: Immunized Testimony

1. testimonial immunity protects an accused against the use of testimony, statements, and any information directly or indirectly derived from such testimony or statements by that person in a later court-martial; testimonial immunity -- in contrast to transactional immunity -- does not bar prosecution of the person who has received the grant of immunity

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

1. when a servicemember seeks dismissal of charges based upon a promise of immunity, the servicemember must demonstrate that the promise was made by an officer authorized to grant immunity

Miscellaneous Matters: Nonjudicial Punishment (Article 15): Charges Based on Prior Nonjudicial Punishment

1. the UCMJ preserves the authority of a senior commander to ensure accountability for misconduct by limiting the effect of nonjudicial punishment imposed by subordinates under Article 15, UCMJ; if a subordinate commander imposes nonjudicial punishment for an offense that is not minor, the senior commander is not precluded from referring the matter for trial by court-martial; when an accused receives a court-martial sentence for the same conduct that was punished at an Article 15 proceeding, the accused has the opportunity to request a sentence credit under United States v. Pierce, 27 MJ 367 (CMA 1989)