Military Justice 101 - Part VII
The Court-Martial Process
(Page 3)
IMMUNITY AND PRETRIAL AGREEMENTS
Immunity. Immunity for an individual is generally sought when that individual has information necessary to the public interest, including the needs of good order and discipline, but has refused or is likely to refuse to testify or provide the information on the basis of the privilege against self-incrimination. [5th Amendment to the U.S. Constitution or Article 31 of the Uniform Code of Military Justice (Section 831 of Title 10, United States Code).]
There are two types of immunity that may be granted under the military’s justice system. The first type of immunity is "testimonial immunity." Testimonial immunity, also called "use" immunity, while still permitting a criminal prosecution, bars the use of a person’s testimony and statements from being used directly or indirectly against that person in a subsequent court-martial. The prosecution must be based on evidence independent of the immunized testimony or statements. The second type of immunity is "transactional immunity." This type of immunity bars any subsequent court-martial action against the immunized person, regardless of the source of the evidence against that person. Testimonial or "use" immunity is generally preferred because it does not prevent the government from prosecuting the person based on independently-acquired evidence.
Only a General Court-Martial Convening Authority (GCMCA) may grant testimonial or transactional immunity. That authority, however, only extends to grants of immunity over individuals subject to the Uniform Code of Military Justice (UCMJ). The GCMCA can disapprove an immunity request for a witness not subject to the UCMJ, but may only approve the request after receiving authorization from the Department of Justice. If a witness may be considered for Federal prosecution or the case involves national security issues, then the Department of Justice must also authorize the immunity, regardless of whether the witness is subject or not subject to the Code.
A grant of immunity must be in writing, signed by the GCMCA, must include a statement of the authority under which it is made, and must identify the matters to which it extends.
The rules on immunity are contained at Rule for Courts-Martial (R.C.M.) 704, as supplemented by case law and service regulations.
Pretrial Agreements (PTAs). A Pretrial Agreement is a formal written agreement between the accused and the Court-Martial Convening Authority. It is commonly referred to as a "PTA." It usually involves a guilty plea by the accused in exchange for a sentence limitation. In other words, the accused agrees to plead guilty to some or all of the charges and specifications and the Convening Authority agrees not to approve an adjudged sentence in excess of a specified maximum.
Although not an exhaustive list, a convening authority may, as appropriate, promise: to refer the charges and specifications to a certain type of court-marital; to refer a capital offense as noncapital; to withdraw one or more charges or specifications from the court-martial; and to have trial counsel present no evidence as to one or more specifications. Likewise, the accused can also make other promises that may cause the convening authority to favorably consider a PTA. These might include promising: to enter into a stipulation of fact concerning offenses to which a plea of guilty is entered; to testify as a witness in the trial of another person; to provide restitution to victims; or to waive certain procedural requirements.
Generally, pretrial agreements are not approved unless there is some convincing reason to forego trial on the facts and issues. For example, the case may have sensitive, sensational, or classified evidence or there is a desire to avoid the traumatic examination of a child witness. These agreements are also limited to cases where the available evidence of guilt is convincing and conviction is probable, assuming the case was to be tried.
The agreements can be initiated by the accused with the assistance of counsel or by the government. If the government initiates a PTA offer, the defense counsel assists the accused in negotiating and deciding upon an agreement. A military judge also has an affirmative duty to ensure a pretrial agreement does not improperly limit the accused’s due process rights. The entire pretrial agreement must be in writing and signed by the accused, defense counsel, and the convening authority. The agreement must not involve any informal oral promises or representations. The agreement is normally prepared in two parts. The first part ordinarily contains an offer to plead guilty, a description of the offenses to which the offer extends, and a complete statement of any other agreed terms or conditions. The second part normally contains the convening authority’s agreement on limiting the sentence. Either party may void an agreement by withdrawing from it. Withdrawals by either party must also be reduced to writing.
At trial, the military judge will conduct a full inquiry into the specific terms of the agreement to ensure the accused: fully understands both the meaning and effect of each provision of the agreement; voluntarily entered into the agreement; and received no oral promises in connection with the agreement. This inquiry is in addition to the judge’s providence inquiry into the validity of the guilty plea itself without the accused’s permission.
In a trial by military judge alone, the military judge will not examine the sentencing limitation of the agreement until after he or she has independently adjudged a sentence. In a trial by court members, the members are not informed of the existence of a pretrial agreement, nor is any statement made by an accused in connection with the agreement disclosed to the judge or the court-martial members.
If the adjudged sentence by the military judge or court-martial members exceeds the limit of the agreement, the convening authority may only approve the lesser, agreed-upon sentence. If the adjudged sentence is less than the agreed sentence limitation, then only the lesser, adjudged sentence may be approved. In other words, the military accused always receives the lesser of the adjudged sentence or the PTA sentence agreed upon.
The rules on pretrial agreements are contained at Rule for Courts-Martial (R.C.M.) 705, as supplemented by case law and service regulations.
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of United States Marine Corps
