NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.

NOTE 2. Self-incrimination raised. A good faith but legally incorrect belief in the right to remain silent does not constitute a defense to this offense. When the specification alleges that the accused, after qualifying as a witness, refused to answer certain questions and it appears to the military judge that the refusal was based on an assertion of the witness’ right against self-incrimination, and there is no question of fact concerning grant of immunity, running of the statute of limitations, former trial, or other reason why the accused could successfully object to being tried for an offense as to which the privilege was asserted, the military judge must determine whether the answers to such questions would be self-incriminating as a matter of law. If the military judge determines that the answers to such questions would have been self-incriminating, the judge should grant a motion for a finding of not guilty. See RCM 917. If the military judge determines that there was no possibility the witness would ever be subject to a criminal prosecution for any offenses which could have been disclosed by his/her testimony, the judge should advise the members substantially as follows:

NOTE 3. Grant of immunity or other bar to assertion of privilege raised. If an accused refused to testify based on a claim of self-incrimination which would ordinarily be valid, but an issue of fact exists as to whether trial of the accused for the offense as to which the privilege was asserted was barred because of a grant of immunity, former trial, the running of the statute of limitations, or some other reason, the military judge should submit such issue to the members, with carefully tailored instructions. If there is no contested issue of fact, the military judge should determine the matter as an interlocutory question. If there was no valid legal reason for the refusal, the members should be advised that the accused was required to answer the questions because there was no possibility that the accused would ever be subject to any criminal prosecution for any offense which might have been disclosed by the testimony. Conversely, if the accused was not legally immunized from criminal prosecution for an offense which might be disclosed by that testimony, the military judge should grant a motion for a finding of not guilty. See RCM 917.

NOTE 4. Determining whether any privilege applies. Whether a grant of immunity, or a former trial, embraces the particular offense as to which the privilege against self-incrimination is asserted is ordinarily a question of law for the military judge to determine.

NOTE 5. Refusal to answer based on degrading/non-material questions. When the specification alleges that the accused, after qualifying as a witness, refused to answer certain questions and the refusal was based on an assertion of right, under Article 31(c), Uniform Code of Military Justice, not to make any statement before any military tribunal which is not material and which may tend to degrade him/her, the military judge must instruct the members that to find the accused guilty, the members must determine that the statement was material. When the evidence raises this issue, the members should be instructed substantially as follows: