Defense Witness Immunity and the Due Process Standard: A Proposed Amendment to the Manual for Courts-Martial

• Author: major Steven W. Myhre
• Pages: 03

So in the Libyan fable it is told, That once an eagle, stricken with a dart, Said, when he saw the fashion of the sh&t, With our own feather, not by others' hands, Are we now smitten.

-Aeschylus

I. Introduction

Testimonial "use" immunity' is a powerful weapon for penetrating complex criminal conspiracies and producing evidence leading to successful prosecution. When confronted with a par. ticularly secretive, devious, or sophisticated criminal conspir. acy, the government often "immunizes"2 the less culpable ac. tors to go after the "bigger fish "3 While the practical effect of this practice is to forgo the prosecution of the lesser actor, this societal cost is outweighed by the benefits derived from prose- *Cnifed States Manna Corps Instructor, The Judge Adracare General's School. C 5 Army Prewour arrlgnmenr3 include Trial Cauniel Chief Trial Caunlid 2d Force Ser-(ice Suppart Group, Camp Lejeune. Nmfh Csrolms, 1887-1888 Defense Caunral Sa. nmr Defense Counrel 188S-LS87. Funded Legal Educafmn Program Offlcer 1882-LS85.Zd Vlanne hireraft Wing. LOSO-1882, Marine Taerleal Warfare Squadron 2, 1977-1980B S , Maiquerfe Unlveislry, 1877, J D . Oniverslry 01 Wy~~eonsln,

1885, LL hl The Judge

Adiocafe General's School, lBO0x The term ' "le' lmmunitr refers to the icopo of the ~ m f e e f i ~ n afforded the wltnei~

curing the most nefarious criminals in an organized conspiracy

Sadly, criminal organizations continue to launch all-out as. saults against the safety, security. and well-being of our society, thereby increasing the importance of use immunity In the continuing combat against these execrable organizations. Kev. ertheless, some courts have sought to place the Damoclesian sword of restimoniai immunity into the hands of a criminal defendant by vesting in that person the right to have a defense witness immunized upon an offer of proof5 that the witness will offer clearly exculpatory evidence.8

Like the eagle in the Libyan fable cited above, one 1s struck by the irony of placing a law enforcement device into the hands of the defense to be used against the government. The practical effect of this right is to cause the government to el. ther alter the order of its prosecution or to forgo prosecution of coconspirators altogether.'

While this right is found in the minority of federal courts split over this issue,8 the military has adopted the rule into its practice and continues to breathe life into it.O As a result, pre-sent military practice requires the judge to inquire into the exculpatory nature of the proffered testimony. If it is clearly exculpatory, then the judge must either order a grant of immu.For a general dscusman by the farmer United Sfatel Attorney far rhe Sorrhern DISIIICI of lllinois concerning the ~olicyfactors 10 consider u hen conferring granri of

nity for the defense witness or abate the proceedings,1° thereby ensuring the defendant's right to present this evidence

While changes to this practice have been proposed,'' none have been forthcoming Although the "clearly exculpatory" standzd has gained great favor in scholarly works advocating the right to obtain immunity for a clearly exculpatory defense witness,lz the federal courts have not uniformly embraced it. Furthermore, as if to obfuscate the issue even more, the military courts have been reluctant to depart from their present line of decisions favoring the clearly exculpatory ~tandard.'~

This article proposes an amendment to the Manual forCourts-Martial (MC.V or Manual) changing the existing rule. The proposal will eliminate the defense's right to witness immunity when the grant wili affect the government's interest in the future prosecution of the witness. Instead of focusing on ethereal notions of "the court's truth-finding function"" and "separation of p~u~ers,"'~this article will focus on the role of immunity in the law enforcement process and how the creation of a defense nght to immunity will affect the adversary process within our system of justice. It will argue that defense witness immunity should be allowed only when the government either has interfered with the defense access to an available witness or has no interest in preserving evidence for the future prosecution of the witness.

This article will conclude that the military courts should use a test that employs the due process standard, which represents the standard used in the mwority of federal courts Before ar. riving at that conciusion, however, an examination of the pre-

sent rule and the evolution of its authoritative basis is necessary.

11. The Right to Defense Witness Immunity Under the Present Rule

Presently, a defendant's entitiement to witness immunity is embodied in Rule for Courts-Martial (R.C Y.)

704(e),le which

Decision to Orant Immunity Unless limited by superior competent authority, the decision whether to grant immunity is a matter within the sole discretion of the appropriate general court.martial convening authority However, if a defense request to immunize a witness has been denied, the military Judge may, upon motion by the defense, grant appropriate relief directing that either an appropriate con. vemng authority grant testimonial immunity to a defense witness or, as to the affected charges and specifications, the proceedings against the accused be abated upon findings that:

(1) The witness' testimony would be of such central importance to the defense case that it is essential to a fair trial; and

(2) The witness intends to invoke the right against self-incrimination to the extent permitted by law If called to testify

The rule usually 1s invoked in the context of a trial involving either a conspiracy or accomplice theory of criminal liability. Either before or during trial. the defense may discover that the testimony of an alleged coconspirator or coactor will show that the witness-or someone the witness knows-and not the accused, was involved in the criminal act This testimony, accordingly, would rise to the level of cleariy exculpatory evl-dence Because of the nature of testimony, the witness will

states:

claim the privilege against self-incrimination,'8 thereby precluding the testimony without a grant of immunity. Consequently, the defensQ will argue that a grant of immunity under R.C.M. 704(e) is required to compel the witness's testimony to ensure that the defendant receives a fair trial.

As a first step, the defendant must apply to the general court-martial convening authority (GCMCA) for the immunity.lB When the defense witness is a potential defendant, however, the GCMCA ordinarily will deny the request to avoid any resulting taint that may endanger the investigation or future prosecution of the witness.z0 After GCMCA denial, and upon motion by the defense, the military judge may review the GCMCAs decision and either order the grant of immunity or abate the trial if the judge determines that the testimony is essential to a "fair

By implication, the rule suggests that the trial judge must balance the accused's interests in presenting exculpatory evidence against the government's interest in the denial of the grant of immunity. The standard under which the balancing is performed is this notion of a "fair trial." The rule, however, gives no guidance regarding the factors the trial judge must consider In making this determination

To the extent that R C.M. 704 vests the GCMCA with the sole authority to grant witness immunity, the rule embodies the tradition found in previous versions of the Manualz2 and forms

accused Dartlcipare m an) such irlme held not to clearly negate the flullt of the BC. euled becauae WItnPII WLP no1 prerenr the enrlle time) The ~mprec~aenature of thla

ripe af evidence lends greater unpredletablllfy to the entire prnceii

bUniiorrn Code of Mlllrary Jvsrlea art 31 10 U S C 8 831 (1988) [heremafter CCMJI

R C M 7Qlrcl

** Manus1 far Courts-Vlarrial D S Army 1017. para 216 ("The fact that an B C C O ~ . plice mrm stare 3 evidence doer nor make him immune from tn81. u n l e ~ immunity has

been Dromiied him b) rhe authority competent to order his trial ' 1, Manual for Courfs-Martial L S Army 1021, para 216 (same language), Manual far Court~-M~nl~I,

U S

Army. 1028 para 120d C The fact that an accomplice reiriIie5 for rhe prosecution does not make him afterwards immune from mal except to rho extent that immunity mag have been prnmned hlm by 80 authorxi COmpeIenr to order his trial by oenerol ~Owt-marfl8l.

1 (emDha3n added:, Manual for Courts-\larnal US Army 1040, para

the basis for the power to compel a witness 10 test~fy.~~ To the

extent that R.C.M. 704(e) provides for judicial review of the GCMCA's decision to deny Immunity, however, the rule has no predecessor in any previous Manual and has no statutory foundation. Rather, the President promulgated this rule in re. action to military case lawzr Therefore, to discover the origin of the rule and its rationale, one must examine its progenitor-United States v. Villine~.~~

The following section will demonstrate that the defense right to witness immunity, as first articulated in the dissent in Vil-lines, was not a function of executive or legislative mandate. Rather, the Court of Military Appeals created the right by judicial fiat As a result, the present rule runs afoul of legislative and executive authority for conferring grants of immunity

In reaching this conclusion, one first must explore the nature and development of the authority to grant immunity, and then must examine the relationship between that authority and the court-mandated right embodied in the present rule. As this ar. ticie will demonstrate, an understanding of the relationship between the legislative and executive power to grant immunity, and the defense "right" to witness immunity, is key to understanding why the present rule lacks an authoritative basis

A. The Source ofAutkorityfor the Present Rule

AS a general rule, grants of immunity may be conferred only pursuant to express statutory authorization.28...