U.S. v. Morrissette, 70 M.J. 431

First Principles: Constitutional Matters: Generally

1. the Fifth Amendment’s privilege against self-incrimination provides that no person shall be compelled in any criminal case to be a witness against himself; however, the privilege against self-incrimination is neither absolute nor inviolate; a grant of testimonial immunity is the minimum grant of immunity adequate to overcome the privilege against self-incrimination provided by the Fifth Amendment to the Constitution and Article 31, UCMJ; neither the testimony of the witness nor any evidence obtained from that testimony may be used against the witness at any subsequent trial
2. the government may compel a witness to testify under a grant of use or derivative-use immunity contrary to the witness’s Fifth Amendment privilege against self-incrimination; immunity from the use of the compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege
3. because the purpose of the Fifth Amendment privilege against self-incrimination is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to criminal acts, testimonial immunity only applies to compelled testimony and not all statements made by an accused; further, for a communication to be considered testimonial, it must, explicitly or implicitly, relate a factual assertion or disclose information

Core Criminal Law Subjects: Evidence: Immunized Testimony

1. a grant of testimonial immunity provides immunity from 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; it is the minimum grant of immunity adequate to overcome the privilege against self-incrimination provided by the Fifth Amendment to the Constitution and Article 31, UCMJ; neither the testimony of the witness nor any evidence obtained from that testimony may be used against the witness at any subsequent trial
2. the government may compel a witness to testify under a grant of use or derivative-use immunity contrary to the witness’s Fifth Amendment privilege against self-incrimination; immunity from the use of the compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege
3. because the purpose of the Fifth Amendment privilege against self-incrimination is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to criminal acts, testimonial immunity only applies to compelled testimony and not all statements made by an accused; further, for a communication to be considered testimonial, it must, explicitly or implicitly, relate a factual assertion or disclose information
4. immunity from the use of compelled testimony and evidence derived therefrom includes evidentiary and nonevidentiary uses, including the indirect use of testimony to alter the investigative strategy or to inform the decision to prosecute
5. in contrast to transactional immunity, testimonial immunity does not impose a per se bar to prosecution of the witness for the offenses about which the testimony or information is given under grant of immunity; the government may prosecute an immunized witness where it can demonstrate that it has made neither direct nor indirect use of the testimony
6. because an accused who has been given testimonial immunity is compelled to relinquish his right against self-incrimination, the government bears the burden to prove that its evidence is not tainted by immunized testimony; the government must affirmatively prove by a preponderance of the evidence that its evidence is derived from a legitimate source wholly independent of the compelled testimony
7. a grant of immunity must leave the witness and the government in substantially the same position as if the witness had claimed his privilege in the absence of a grant of immunity
8. while there is no per se rule requiring a prosecutor who has been exposed to immunized statements to withdraw from the case, separating pre-immunity from post-immunity evidence is considered a best practice
9. while a wall separating pre-immunity and post-immunity investigative and prosecution teams is not required, it is considered a best practice, because a well constructed wall is demonstrative evidence that the prosecution did not make direct or indirect use of immunized testimony
10. if prosecutors are exposed to immunized testimony, the government has the burden to demonstrate that the immunized testimony was not used or derivatively used against an accused and was obtained from wholly independent and legitimate sources
11. whether the government has shown, by a preponderance of the evidence, that it has based an accused’s prosecution on sources independent of his immunized statements is a preliminary question of fact
12. in this case, two voluntary statements made by appellant to CID during an investigation into the victim’s death after he received testimonial immunity were not covered by the grant of immunity, where one statement was made during an unrelated investigation and the other statement was made spontaneously to investigators while appellant was waiting for his counsel to arrive; however, two other statements made by appellant to CID after his grant of immunity addressed the death of the victim and were covered by the grant of testimonial immunity
13. factors used to determine whether the government made direct or indirect use of an accused’s immunized statements include (1) whether the statements reveal anything which was not already known to the government by virtue of the accused’s own pretrial statements, (2) whether the investigation against the accused was completed prior to the immunized statement, (3) whether the decision to prosecute the accused had been made prior to the immunized statement, and (4) whether the trial counsel who had been exposed to the immunized testimony participated in the prosecution; however, these factors are not necessarily determinative as to whether the government has or has not met its burden; that is because the ultimate question is whether the government has made any direct or derivative use of immunized evidence, not whether it adhered to a particular timeline or process
14. in this case, the government carried its burden of demonstrating that it did not directly use appellant’s immunized statements at his second trial; although a significant portion of the investigation occurred after appellant was granted immunity and the decision to prosecute him was made after the statements were made, the statements did not reveal anything not already known to the government from other witnesses or produce any leads or influence any aspect of the government’s investigation, and the prosecution team was not exposed to the statements and was only exposed to a memo stating that appellant had refused to cooperate
15. in this case, email communication between the current prosecutor and the deputy judge advocate in charge of redacting immunized materials from the record of appellant’s first trial did not show that appellant’s second trial was indirectly tainted by his immunized testimony; although the communication created a potential for taint, the deputy judge advocate only advised the prosecutor on how to charge appellant and did not discuss the evidence or the facts of the case; additionally, appellant did not reveal any new information about the case in his immunized testimony
16. in this case, the current prosecution team was not indirectly motivated in its decision to prosecute appellant as a result of its access to particular post-immunity documents that indicated that he had not cooperated with the first investigation, where the prosecution team had an independent basis for knowing that appellant had not cooperated with the investigation from his pre-immunity statement denying that he knew how the victim died and denying his membership in a gang, even though statements of other witnesses placed him at the scene and in the gang; moreover, the terms of the testimonial immunity rule and appellant’s immunity agreement itself made clear that the government may later prosecute a witness for his failure to duly cooperate with the order to testify

Core Criminal Law Subjects: Evidence: Privileges › Generally

1. the Fifth Amendment’s privilege against self-incrimination provides that no person shall be compelled in any criminal case to be a witness against himself; however, the privilege against self-incrimination is neither absolute nor inviolate; a grant of testimonial immunity is the minimum grant of immunity adequate to overcome the privilege against self-incrimination provided by the Fifth Amendment to the Constitution and Article 31, UCMJ; neither the testimony of the witness nor any evidence obtained from that testimony may be used against the witness at any subsequent trial
2. the government may compel a witness to testify under a grant of use or derivative-use immunity contrary to the witness’s Fifth Amendment privilege against self-incrimination; immunity from the use of the compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege
3. because the purpose of the Fifth Amendment privilege against self-incrimination is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to criminal acts, testimonial immunity only applies to compelled testimony and not all statements made by an accused; further, for a communication to be considered testimonial, it must, explicitly or implicitly, relate a factual assertion or disclose information

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

1. because an accused who has been given testimonial immunity is compelled to relinquish his right against self-incrimination, the government bears the burden to prove that its evidence is not tainted by immunized testimony; the government must affirmatively prove by a preponderance of the evidence that its evidence is derived from a legitimate source wholly independent of the compelled testimony
2. if prosecutors are exposed to immunized testimony, the government has the burden to demonstrate that the immunized testimony was not used or derivatively used against an accused and was obtained from wholly independent and legitimate sources
3. whether the government has shown, by a preponderance of the evidence, that it has based an accused’s prosecution on sources independent of his immunized statements is a preliminary question of fact
4. factors used to determine whether the government made direct or indirect use of an accused’s immunized statements include (1) whether the statements reveal anything which was not already known to the government by virtue of the accused’s own pretrial statements, (2) whether the investigation against the accused was completed prior to the immunized statement, (3) whether the decision to prosecute the accused had been made prior to the immunized statement, and (4) whether the trial counsel who had been exposed to the immunized testimony participated in the prosecution; however, these factors are not necessarily determinative as to whether the government has or has not met its burden; that is because the ultimate question is whether the government has made any direct or derivative use of immunized evidence, not whether it adhered to a particular timeline or process

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

1. whether the government has shown, by a preponderance of the evidence, that it has based an accused’s prosecution on sources independent of his immunized statements is a preliminary question of fact; an appellate court will not overturn a military judge’s resolution of that question unless it is clearly erroneous or is unsupported by the evidence
2. factors used to determine whether the government made direct or indirect use of an accused’s immunized statements include (1) whether the statements reveal anything which was not already known to the government by virtue of the accused’s own pretrial statements, (2) whether the investigation against the accused was completed prior to the immunized statement, (3) whether the decision to prosecute the accused had been made prior to the immunized statement, and (4) whether the trial counsel who had been exposed to the immunized testimony participated in the prosecution; however, these factors are not necessarily determinative as to whether the government has or has not met its burden; that is because the ultimate question is whether the government has made any direct or derivative use of immunized evidence, not whether it adhered to a particular timeline or process