Grants of Immunity

The Court of Appeals of the Armed Forces (CAAF) recently decided United States v. Morrissette, 70 MJ 431 (2012), which provides interesting insights into the dangers associated with  grants of immunity.  Simply stated, this case concerned an accused that was involved in the death of a Soldier; who was undergoing, at that time, a brutal initiation into the gang.  The Government provided the accused “testimonial immunity” IAW RCM 704(a)(2).  As a result, the accused had no choice but to make a statement to CID.  In fact, he made four more written statements. The Government then withdrew the immunity and proceeded with the court-martial of the accused.  CAAF held the follow-on prosecution was not unlawful because  the Government did not benefit from the information learned from the previous immunized statements.  Indeed, a second set of prosecutors, who were precluded from learning anything about the accused’s four statements, tried him.   CAAF held the conviction lawful.  Notably, CAAF did not care that a former member of the first prosecution team tangentially discussed the case, via email,  with the second prosecution team’s staff judge advocate.  The lesson to learn is to conduct vigorous discovery of “email” information when looking to pierce the “Chinese wall” to show your client is worse off as a direct result of the forced immunity arrangement.



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