Grants of Inmunity and Military Law, 1971-1976

• Author: Major Herbert Green
• Pages: 01

1. INTRODUCTION

   Five years ago, federal immunity law was in a state aftransition and uncertainty. A newly enacted general immunity statute' had repealed all existingfederal immunity statutes and adapted use im. munity as the degree of protection necessary to supplant the privilege against self-incrimination.2 Because the Supreme Courthad never ruled on the constitutionality of use immunity and had, in dictum, cast doubt upon its validity,j great constitutional questions attended the enactment of the statute.

   The statusofmilitaryimmunitylawwasquitedifferent.

   Withthe

   exception of the possibility that the new federal immunity statute

   *Thisartrele~smthenatureofa sequeitn Green. GionisafImmvnitrondrMiIrrary

   La=, 63MrL. L REV 1i1951) Theo~inionsandconclviionspresentedInthisartieleare thoae oftheauthor Bnddonotnecessanlyrepreaentthenewsofrhesudge

   Ad-

   11970).

   9 "So peram shall be compelled in any cnminal ease to be B xmess agalnat himself. . " US COWSTamend V

   i In Counselman v Hltchcock, 142 U.S 547 i18921 the Court said.

   142 C S at 585.86

   vacate General's School or en) other governmental agency.*JAGC. U S. Army, Military Judge. Second Jvdicial Circuit Fort Cordon. GeorgiaB A , 1963. QueensColleg~, J.D ,1966,UniversityafTexas.MemberairheStsteBarof Texas and the Bars of the U.S A m y Court of Milltary Rewew, U.S Court of Y~lifary Appeals and the U.S Supreme Court

   I The Orgamred Crime Control Act of 1970 Act of OCI 15 1970, Pub. L No 91.452. eodihed at 18 US C 55 6001-6006

   would be applied to the military4 it appeared that all major issues involving military immunity law had been resolved.5

   The last five years have witnessed great changes in immunity law. The federal courts have resolved many afthe important issues raised by the 1910 federal immunity statute, settling many of the important questions raised by the statute's enactment. Military immunity law has, however, taken a different course in the last five years. The years since 1971 have seen a veritable explosion of military immunity cases. In contrast to the mere handful of im. munity cases that were decided during the firsttwenty yearsunder the Uniform Code of Mditary Justice.6 more than fifty immunity cases have been decided during the last five years. Certainly quantity aloneis not a truemeasure ofthevalueofthesecases,however, their substance is significant and should be examined.

   The purpose of this articleis toexammethe changesinimmunity law that have occuned since 1971. The first part of the article ex-amines the constitutionality of uee immunity, the question of what is derivative uee, and the procedural and evidentiaryissuesrelatedto u ~ e immunity. The next portion discusses the perjury and false statement exception togrants ofimmunityand theforeignjurisdic. tion problem. Thefinal portion examines thedisqualification ofthe convening authority and the staff judge advocate from the review process because of theirparticipationin thegrantingaf immunity

   11. USE OF IMMUNITY A. CONSTITUTIONALITY

       There are two types of grants of immunity. Transactional immunity protects the witness from prosecution for any offense to which his testimanyrelates.Theotherforrnofirnmun1ty.called use

       immunity, is composed of two elements. First, the statement of a

       witness compelled to testify cannot be introduced as evidence against him in a criminal trial.'Second, any information gained or derived from the compelled statement may not be used against the witness in any way.8 A grant of immunity is legally effective when it provides the witness the same degree of protection in a criminal proceeding as that afforded by the privilege against self-incrimination.9 When such protection is provided, the grant of immunity is said to be co-extensive with the constitutional protection and the privilege against self.incrimination may not beinvoked.10

       The constitutional history of grants of immunity has four major landmarks." In Counselman u. Hitchcock,'z the Supreme Court was asked to determine whether an immunity statuteL3 which only incorporated the first element of u ~ e immunity was constitutional. The Court found that the statute as applied to the witness "could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him , . . in a criminal proceeding."" Accordingly, it held the statute to be unconstitutional. The Court went on to say, in dictum,

       offenae to which the question relater"

       Congress rapidly responded18 to the holding and the dictum in

       . - .. . . .

       elements soli others rise the wards tesiimomai ~mmumtg

       ;hen refhmng 6 both elements. Throughout this article the words use immunity refer to that immunity which comorisee both elements

       8 Counselm'an Y Hitchcock. 142 U S 647 (18921

       c Murphy v Waterfront Comm'n. 378 US 52 (19641.

       I Sea Aoolicarion of rho United Stares Senate Select Comm on Presidential Cam-paign A>iluitlea, 361 F Supp 1270 (0 D C 1973)

       142 E S 541 (1592)

       " Section 860 of the Renlsed Statures This eecfion was a reenactment of the Act of Feb 26,1868.ch 13.15Stat 37 Seetian660r~sd'Sopleadingofapartynoranydis-covers or evidence abramed from B party or witness by means ai B iudeial proceeding m thls or any fareun countr~ shall be ~iven

       ~n endenee. or m anymanner used agarnst him 01 his property or estate. m&courloftheUnned Stares, ~n any cnminal proceeding, or for the enforcement of any penalty or forfeiture * Counselman v Hitchcock. 142 U.S S47 564 (18921.,Id 81 685-86!e See Kabtigar Y United States, 406 U S 441 451 (19721

       Counselman and enacted thecompulsory Testimony Act of 1893." This statute provided transactional immunity for witnesses com. pelled to testify. In Brown u. Walker18 the Supreme Court upheld the constitutionality of this statute and thereby declared that properly drawn immunity statutes provide the same degree of protection as that afforded by the privilege against self-incrimination.1g

       The third landmark is Murphy u. Waterfront Comnrssionzc where the issue was "whether one jurisdiction within our federal structure may compel a witness, whom it has immunized from prosecution under its laws, to give testimony which might then be used to convict him of B crime against another such jurisdiction."21 The Supreme Court held that when one sovereign in the federal system compels testimony under a grant of immunity, another sovereign is forbidden to use thattestimony orits fruits against the witness in B criminal prosecution.

       By 1911 the law was at least this clear. transactional immunity was constitutionai; use immunity without a prohibition on derivative use was unconstitutional; and a witness given transactional immunity could not legally refuse to testify because of possible prosecution by another mvereign in the federal system.

       All federal immunity statutes enacted after 1893 provided for transactional immunity.22 Therefore, na federal court found it necessary to consider the constitutionality of use immunity until 1910 when all existing federal immunity statutes were repealed xIn their place was substituted one statute which applies to all federal courts, grand juries and agencies2* as well as the Con-g r e ~ s . ~ ~

       The statute provides that a witness ordered to testify may not invoke the privilege against self.incrimination.but no re~rimong or other infomation compelled under the order (07

       _____ ___

       -Act of F'eb 11 1883 ch 83 27 Stat 113

       States 406 C S 441, 462 r19i2) 9 1P US

       C 5 6002 119701

       'I 18 U 9 C 91 6001-6005 $18701

       ji

       See Appl~cabon

       ai United States Sensta Camm on Presidentid Campaxn hr unties 3bl F Svpp 1270, 12;3 (D D C 19731

       any inionnation directl) or indireeily denved irom such testimony orother

       mfarmanan1 ma) he used ammt thewitnessinan) cnmmslease 3~

       The constitutionality of this statute and therefore the con. stitutionality of use immunity was considered by the Supreme Court in Kastigar u. United States.2'

       Kastigar was given a grant of use immunity and ordered to testify beforea federalgrandjury. He asserted hisprivilegeagainst self.incrimination, refused to testify after being ordered to do so and was subsequently held in contempt. The circuit court af. firmed2B and the Supreme Court granted certiorarizg

       to resohe the immrtant (~uestion whether tesfimanv ma? becomoelled hi granting rmmumb from ihe use of compelled tesrr&n,and &mce denved therefrom or whether it IS necessa~) io grant immunity from prosecufm far offenses to which compelled restlmony relates

       The Court examined transactional immunity and likened it to an amnesty grant.3' It considered this protection to be significantly broader than that afforded by the fifth amendmentazand therefore not required by the Constitution. The sole cnncern of the fifth amendment privilege is to protect the witness from being compelled to give testimony which leads tn the infliction of criminal penalties against him:33

       tion of cnminal ~enalf~eran the *mess '6

       Accordingly, the Court held that use immunity "is co.extensive with the scopeoftheprivilege against self-incriminationandis sufficient to compel testimony over a claim of the privilege."35

       5. WHAT CONSTITUTES DERIVATIVE USE? Neither Murphrnor Kastrgardefinesderivativeuse. In Kaasfigar the appellant argued that the immunity statute did not adequately

       2i 18 U S C 5 6002 119701

       408 U S 441 119721 402 U.S 971 11971)

       .' Stewm Y United States. 440 F 2d 954 19th Clr 19711

       J

       Kastigar Y United Stater. 406 U S 441. 443 (19721

       ?I Id at 162

       dl

       Id at 463

   3. Id.

      '/ Id at 453 (emphasis added by the Court1

      36 Id at 453. ast Sarno Y Illmais Cnme Inveaflgahng Camm'n 406 U.S 482. 483 11972)

      MILITARY LAN REVIEW [Vol. 73

      insure that law enforcement officials would not u ~ e his testimony

      to seek out other evidence which might be used in a prosecution against him. The Court rejected this argument and Stated that it considered the statute'@ proscription against derivative use to be sweeping. It construed the proscription as

      barnng the U B ~

      of compelled testimony as an 'hvesfigatory lead' and also...