Grants Of Immunity and Military Law

AuthorBY Captain Herbert Green
Pages01

The author examines the types and use8 of testimonial immunity in civilian aad military practice. HE traces the development of military immunity noting its weak grounding in statutory law. A concluding section studies the.impact of the 1970 Organized Crime Control Act on military immunity practice.

No person. . . shall be compelled in any criminal case to be a witneas ogaimt himself.1

  1. INTRODUCTIOS

    "The privilege against aelf-incrimination is one of the great landmarks in man's struggle to make himself eivilized."Q The origin of the privilege is found in the 12th century controversies between the King of England and his bishops. Its establishment was not easy as the experiences of those who were defendants before the Star Chamber attest.3 By the mid 17th century this privilege was established 88 a ruie of evidence of the common law.' The struggle to establish the privilege was well known to the authors of our Constitution. So deeply did it impress them that the privilege was "clothed with the impregnability of a constitutional enactment."'

    *This art& was adapted from a. thesis presented to The Judge Advocate General's School, U. S. Army, Charlottesuille, Virginis, while the author was

    B member of the Nineteenth Advanced Course. The o ~ m o n s and C ~ ~ C ~ U Q L D

    presented herein are those of the author and do not neeersarily represent the yiex.s af The Judge Advocate General'? School or any governmental agency.

    ** JAGC, U. S. Army: Dl~lh.ry Judge, 12th Jvdicial Circuit, Msnnhem, Germany. B.A., 1963, Qveena College: J.D.,

    1966. University of Texas: mem-ber of the State Bar of Texas and bars of U. S. Supreme Court, U. S. Court af Military Appeals and U. S. Army Court of Pilitars Review.

    1 U.S. CONST. mend. V.

    The privilege applies to a great variety of governmental activities. In addition to all federal and state6 criminal trials witnesses mas invoke it before grand juries? proceedings of administrative agenciess and legislative hearings.' It is equally applicable to the Armed Forces.lo

    The privilege may be invoked when a witness has "reasonable cause to apprehend danger from a direct answer."I~ Once the privilege is invoked, the trial judge determines if the claim is well taken. The claim must be accepted unless it Is "perfectly dear from a careful consideration of all the circumstances that the witness is mistaken in the apprehension of self-incrimination and the answers demanded cannot possibly have such tendency."lz

    Although the pri\,ilege is accorded a liberal Interpretation in favor of the right it ITEL intended to secure13 it may only be invoked to protect an individual from criminal prosecution. Thus, it may not be invoked if the testimony "cannot possibly be used as

    B basis for, or in aid of a criminal prosecution against the wit-ness."14 Sor may it be invoked where the statute of limitations has run1$ or where the witness seeks to protect himself from infamy

    6 Malloyr. Hogan, 378 U.S. 1 (1964). i

    Stevens r. Marks, 383 U.S 234 (1966): United States v. \Ionla. 317 V S 524 (19431: Vnited Stater \, Luxenberg, 314 F.2d 241 f6th Clr. 19671. See Carter Y. United Stater, 417 F.2d 384 19th Cir 19691

    * Yaleras Y ITS. 367 F.2d 921 (7th Cir 1967) ' see Xalla) v Hogan, 378 U.S l(1964).

    B Katkinr Y Cnited Stater, 314 U.8 I78 (1957) , Paretto V. Lniled States, 196 F.2d 392 (5th Cir 19521.

    FORM CODE OF IILITAR'I JUSTICE, art. 31: IIASUAL FOR COURTS-MAR-,TED STATES, 1969 IRLYISED IDIIION). para. 150, United States v

    48 (1953)

    Appleton, 42 Mm

    FORM CODE OF IILITAR'I JUSTICE, art. 31: IIASUAL FOR COURTS-MAR-,TED STATES, 1969 IRLYISED IDIIION). para. 150, United States v

    48 (1953)

    Appleton, 42 Mm

    349 U S 156 f1965).

    12 Commonwealth Y. Carrera, 424 Pa. 673, 227 A 2d 627 (1967). Aocord,

    Hoffman I. United States, 341 U.S. 479 (1951): Enriehi j . United States, 212

    18 Hoffman V. Unrted States, 341 U.S. 478, 486 (19511.16 Brown V. Walker, 181 U.S. 691, 591 (18961,IS id. at 588 and cm09 cited therein; ma United Stater Y. D~Caila, lOZ FSupp. 597 (N.D.

    349 U S 156 f1965).

    12 Commonwealth Y. Carrera, 424 Pa. 673, 227 A 2d 627 (1967). Aocord,

    Hoffman I. United States, 341 U.S. 479 (1951): Enriehi j . United States, 212

    18 Hoffman V. Unrted States, 341 U.S. 478, 486 (19511.16 Brown V. Walker, 181 U.S. 691, 591 (18961,IS id. at 588 and cm09 cited therein; ma United Stater Y. D~Caila, lOZ FSupp. 597 (N.D.

    Ohio, 1952).

    Ohio, 1952).

    2d 292. 217 II.Y.3 2d 96i (SUP Ct. 1969) No ipeeifie

    2d 292. 217 II.Y.3 2d 96i (SUP Ct. 1969) No ipeeifie

    IMMUNITY

    or disgrace that may result from his answers.1e If his testimony cannot be used against him in a criminal prosecution, the witness cannot refuse to answer governmental inquiries because "the public has a claim to every man's evidence and no man can plead exemption from this duty,"17 To secure this evidence immunity statutes were paased.le

    An ImmunltS act IS an set which grants an agent of the government the poaer to compel B ultnew to testify about any matter, despite the self-incriminating nature of the testimony. But in exchange for the testimony, the government 1s dmsbled from obtamng penal ianctiana against the witness for matters revealed by his teJtimong.ls

    Where the protection afforded by an immunity statute is equal to that aii'orded by the constitutional privilege, the protection i s said to be co-extensive with the constitutional protection and the privi-lege may not be invoked.20

    The first part of this article discusses immunity in the federal system. It examines the nature of grants of immunity, substitutes for statutorily authorized grants of immunity: the question of which branch of government has the authority to grant immunity and the immunity problems inherent in the federal-state relationship. The next portion discusses military procedures, policies, and problems involving grants of immunity. The final portion examines the immunity provisions of the Organized Crime Control Act of 197021 and its effect on present military immunity procedures.

    11. IMhlUSITY IS THE FEDERAL SYSTEM

    A. THE A'ATCRE OF FEDERAL IMMCSITY

    The first federal immunity Btatute22 KPS enacted in 1857. It

    16 Ullman I. United Stater, 350 U.S. 122 (1856) : Smith Y. United Staten,

    337 li Duke of Argyle I" Pariiamentsry debate Quoted in 8 J. W~CMDRE, EYI-

    U.S. 137, 147 (18481.

    DEKCE P 2102 (&Naughton ad. 18611.

    38 Comment, Fadeidism 6. the Ftfth: Canfiguretione of Grants of Immun-ity, 12 UCLI L. REV 161, 552 (1865).

    19 Comment, The Fedwoi WItvass Immunity Acts. 72 YALE L. I

    1568. 1670

    20 Immunity rtatutes offer no protection against periurs committed by B

    witness testifainq under a grant of immunity. Ghekatem V. United Staten, 222 U.S. 130 (1811) ; Srniley Y. United Staten 181 F.2d 505 (9th Cir. 1950).

    11 18 U.S C. 01 600145 (Supp 1010); Pub. L. No. 91-452, iOet. 15, 1970).

    2% Act of Jan. 24, 1867, ch. 18. 11 Stat 155.

    S

    (1063).

    provided that no witness before a House of Congress or committee thereof could refuse ta answer any questions pertinent to the inquiry. In return far the testimony it further provided that the witness could not be prosecuted for any "act touching nhich he shall be required to testify."Pa This immunity, by which a witness is protected from criminal prosecution for any act about which he may testify, is called transactional immunity. The other widely known form of immunity is called use immunity and is composed of two elements. First, the statement of a witness granted use immunity cannot be introduced into evidence against him in a criminal trial. Second, any information gained or derived from his testimony may not be used against him in any form.2' Thus while transactional immunity acts as a bar to future prosecution, use immunity only insures that the testimony and any informatian derived therefrom, may not be used in aid of a future prosecution against the witness.

    In 1862 Congress adopted the first element of use immunity. It amended the 1857 Act to provide "that the testimony of a witness examined and testifying before either House of Conpress, or any committee of either House of Congress, shall not be used as evi-dence in any criminal proceeding against such witness in any court of justice."z6 This type of immunity, adopting only the first element of use immunity, waa incorporated in other statutes26 and its validity went unchallenged for three decades. The Supreme Court decided that this limited immunity was insufficient to pro-vide protection equal to the privilege against self-incrimination. In Counselman v. Hitehcoek2' in response to a subpoena, Counselman appeared before a federal grand jury but refused to answer certain questions. He was subsequently held in contempt by a diztrict court and confined for disobeying the court's order to anawer the questions. His application for a writ of habeas corpus was denied by a circuit court and he appealed. Before the Supreme Court he claimed that although his testimony could not be used against him in a subsequent criminal trial, informatmn derived from the testi- 13 Id. at 166.24 See People Y. LsBello, 24 N.T. Zd 583, 249 N.E. 2d 411. 301 X.Y.S. 2d 544 (1868). (overruled on other grounds); CI. Wong Sun Y. Emled States. 371 U.S. 471 (1863): Silverthorne Lumber Ca. Y. United States, 261 T.S. 386 (1820).

    16 Act of Jan. 24, 1862, ch. 11, 12 Stat. 333 (emphasm added)*(Act of Feh. 4, 1887. ch. 104, 24 Stat. 378, 333, Act of Feb. 26, 1868, eh. 13,

    15 21142 U.S. 547 (1882).

    Stat. 37.

    IMMUNITY

    many was not subject to the same prohibition. Therefore, the protection atforded him was not coextensive with the privilege against self-incrimination. The goverrment argued that the pratection of the self-incrimination clause was fully afforded to the petitioner by the statute.*8 The Court held that the testimony could not he used in a subsequent criminal prosecution but agreed with the petitioner's contention with respect to the derivitive aspects. It found that the statute "could not, and would not, prevent the use of his testimony to...

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