Section 400.610 Self-Incrimination

Section 400.610  Self-Incrimination

a)         Privilege

Concerning Compulsory Self-Incrimination

1)         General.

The privileges against self-incrimination provided by the Fifth Amendment to

the U.S. Constitution and Code Section 31 are applicable only to evidence of a

testimonial or communicative nature.  The privilege most beneficial to the

individuals asserting the privilege shall be applied.

2)         Standing

A)        In General.

The privilege of a witness to refuse to respond to a question the answer to

which may tend to incriminate the witness is a personal one that the witness

may exercise or waive at the discretion of the witness.

B)        Judicial

Advice.  If a witness who is apparently uninformed of the privileges under this

Section appears likely to incriminate himself or herself, the military judge

should advise the witness of the right to decline to make any answer that might

tend to incriminate the witness and that any self-incriminating answer the

witness might make can later be used as evidence against the witness.  Counsel

for any party or for the witness may request the military judge to so advise a

witness provided that such a request is made out of the hearing of the witness

and, except in a special court-martial without a military judge, the members.  Failure

to so advise a witness does not make the testimony of the witness inadmissible.

3)         Exercise

of the Privilege.  If a witness states that the answer to a question may tend

to incriminate him or her, the witness may not be required to answer unless

facts and circumstances are such that no answer the witness might make to the

question could have the effect of tending to incriminate the witness or that

the witness has, with respect to the question, waived the privilege against

self-incrimination.  A witness may not assert the privilege if the witness is

not subject to criminal penalty as a result of an answer by reason of immunity,

running of the statute of limitations, or similar reason

e witness might make to the

question could have the effect of tending to incriminate the witness or that

the witness has, with respect to the question, waived the privilege against

self-incrimination.  A witness may not assert the privilege if the witness is

not subject to criminal penalty as a result of an answer by reason of immunity,

running of the statute of limitations, or similar reason.

A)        Immunity

Generally.  The minimum grant of immunity adequate to overcome the privilege is

that which, under the proper authority, provides that neither the testimony of

the witness nor any evidence obtained from that testimony may be used against

the witness at any subsequent trial other than in a prosecution for perjury,

false swearing, the making of a false official statement, or failure to comply

with an order to testify after the military judge has ruled that the privilege

may not be asserted by reason of immunity.

B)        Notification

of Immunity or Leniency.  When a prosecution witness before a court-martial has

been granted immunity or leniency in exchange for testimony, the grant shall be

reduced to writing and shall be served on the accused prior to arraignment or

within a reasonable time before the witness testifies.  If notification is not

made as required by this subsection (a)(3)(B), the military judge may grant a

continuance until notification is made, prohibit or strike the testimony of the

witness, or enter such other order as may be required.

4)         Waiver

by a Witness.  A witness who answers a question without having asserted the

privilege against self-incrimination and thereby admits a self-incriminating

fact may be required to disclose all information relevant to that fact except

when there is a real danger of further self-incrimination.  This limited waiver

of the privilege applies only at the trial in which the answer is given, does

not extend to a rehearing or new or other trial, and is subject to Section

400.705(h)(2).

5)         Waiver

by the Accused

thereby admits a self-incriminating

fact may be required to disclose all information relevant to that fact except

when there is a real danger of further self-incrimination.  This limited waiver

of the privilege applies only at the trial in which the answer is given, does

not extend to a rehearing or new or other trial, and is subject to Section

400.705(h)(2).

5)         Waiver

by the Accused.  When an accused testifies voluntarily as a witness, the

accused waives the privilege against self-incrimination with respect to the

matters concerning which he or she so testifies.  If the accused is on trial

for 2 or more offenses and on direct examination testifies concerning the issue

of guilt or innocence as to only one or some of the offenses, the accused may

not be cross-examined as to guilt or innocence with respect to the other

offenses unless the cross-examination is relevant to an offense concerning

which the accused has testified.  This waiver is subject to Section

400.705(h)(2).

6)         Effect

of Claiming the Privilege

A)        Generally.

The fact that a witness has asserted the privilege against self-incrimination

in refusing to answer a question cannot be considered as raising any inference

unfavorable to either the accused or the government.

B)        On Cross-Examination.

If a witness asserts the privilege against self-incrimination on

cross-examination, the military judge, upon motion, may strike the direct

testimony of the witness in whole or in part, unless the matters to which the

witness refuses to testify are purely collateral.

C)        Pretrial.

The fact that the accused, during official questioning and in exercise of

rights under the Fifth Amendment to the U.S. Constitution or Code Section 31,

remained silent, refused to answer a certain question, requested counsel, or

requested that the questioning be terminated is inadmissible against the

accused.

7)         Instructions

fuses to testify are purely collateral.

C)        Pretrial.

The fact that the accused, during official questioning and in exercise of

rights under the Fifth Amendment to the U.S. Constitution or Code Section 31,

remained silent, refused to answer a certain question, requested counsel, or

requested that the questioning be terminated is inadmissible against the

accused.

7)         Instructions.

When the accused does not testify at trial, defense counsel may request that

the members of the court be instructed to disregard that fact and not to draw

any adverse inference from it.  Defense counsel may request that the members

not be so instructed.  Defense counsel's election shall be binding upon the

military judge except that the military judge may give the instruction when the

instruction is necessary in the interests of justice. (Il. Mil. R. Evid. 301)

b)         Waiver

of the Privilege Against Self-Incrimination

1)         General

Rule. After receiving applicable warnings under Section 400.625, a person may

waive the rights described in that Section and in subsection (a) of this

Section and make a statement.  The waiver must be made freely, knowingly and

intelligently.  A written waiver is not required.  The accused or suspect must

acknowledge affirmatively that he or she understands the rights involved,

affirmatively decline the right to counsel, and affirmatively consent to making

a statement.

2)         Counsel

A)        If the

right to counsel is applicable and the accused or suspect does not decline

affirmatively the right to counsel, the prosecution must demonstrate by a

preponderance of the evidence that the individual waived the right to counsel

or she understands the rights involved,

affirmatively decline the right to counsel, and affirmatively consent to making

a statement.

2)         Counsel

A)        If the

right to counsel is applicable and the accused or suspect does not decline

affirmatively the right to counsel, the prosecution must demonstrate by a

preponderance of the evidence that the individual waived the right to counsel.

B)        If an

accused or suspect interrogated requests counsel, any subsequent waiver of the

right to counsel obtained during custodial interrogation concerning the same or

different offenses is invalid unless the prosecution can demonstrate by a

preponderance of the evidence that:

i)          the

accused or suspect initiated the communication leading to the waiver; or

ii)         the

accused or suspect has not continuously had his or her freedom restricted by

confinement, or other means, during the period between the request for counsel

and the subsequent waiver. (Il. Mil. R. Evid. 305A)