Trial Matters

[Title 32 CFR C]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter Vi - DEPARTMENT OF THE NAVY]
[Subchapter C - PERSONNEL]
[Part 719 - REGULATIONS SUPPLEMENTING THE MANUAL FOR COURTS-MARTIAL]
[Subpart C - Trial Matters]
[From the U.S. Government Printing Office]

32NATIONAL DEFENSE52002-07-012002-07-01falseTrial MattersCSubpart CNATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE NAVYPERSONNELREGULATIONS SUPPLEMENTING THE MANUAL FOR COURTS-MARTIAL
Subpart C--Trial Matters

Sec. 719.112 Authority to grant immunity from prosecution.

(a) General. In certain cases involving more than one participant,
the interests of justice may make it advisable to grant immunity, either
transactional or testimonial, to one or more of the participants in the
offense in consideration for their testifying for the Government or the
defense in the investigation and/or the trial of the principal offender.
Transactional immunity, as that term is used in this section, shall mean
immunity from prosecution for any offense or offenses to which the
compelled testimony relates. Testimonial immunity, as that term is used
in this section, shall mean immunity from the use, in aid of future
prosecution, of testimony or other information compelled under an order
to testify (or any information directly or indirectly derived from such
testimony or other information). The authority to grant either
transactional or testimonial immunity to a witness is reserved to
officers exercising general court-martial jurisdiction. This authority
may be exercised in any case whether or not formal charges have been
preferred and whether or not the matter has been referred for trial. The
approval of the Attorney General of the United States on certain orders
to testify may be required, as outlined below.
(b) Procedure. The written recommendation that a certain witness be
granted either transactional or testimonial immunity in consideration
for testimony deemed essential to the Government or to the defense shall
be forwarded to an officer competent to convene a general court-martial
for the witness for whom immunity is requested, i.e., any officer
exercising general court-martial jurisdiction. Such recommendation will
be forwarded by the trial counsel or defense counsel in cases referred
for trial, the pretrial investigating officer conducting an
investigation upon preferred charges, the counsel or recorder of any
other fact-finding body, or the investigator when no charges have yet
been preferred. The recommendation shall state in detail why the
testimony of the witness is deemed so essential or material that the
interests of justice cannot be served without the grant of immunity. The
officer exercising general court-martial jurisdiction shall act upon
such request after referring it to his staff judge advocate for
consideration and advice. If approved, a copy of the written grant of
immunity must be served upon the accused or his defense counsel within a
reasonable time before the witness testifies. Additionally, if any
witness is expected to testify in response to a promise of leniency, the
terms of the promise of leniency must be reduced to writing and served
upon the accused or his defense counsel in the same manner as a grant of
immunity.
(c) Civilian witnesses. Pursuant to 18 U.S.C. 6002 and 6004, if the
testimony or other information of a civilian witness at a court-martial
may be necessary in the public interest, and if the civilian witness has
refused or is likely to refuse to testify or provide other information
on the basis of a privilege

[[Page 194]]

against self-incrimination, then the approval of the Attorney General of
the United States, or his designee, must be obtained prior to the
execution or issuance of an order to testify to such civilian witness.
The cognizant officer exercising general court-martial jurisdiction may
obtain the approval of the Attorney General in such a circumstance by
directing a message or letter requesting the assistance of the Judge
Advocate General (Code 20) in the form prescribed in paragraph (e) of
this section.
(d) Cases involving national security. In all cases involving
national security or foreign relations of the United States, the
cognizant officer exercising general court-martial jurisdiction shall
forward any proposed grant of immunity to the Judge Advocate General for
the purpose of consultation with the Department of Justice. See section
0126 of the Manual of the Judge Advocate General regarding relations
between the Departments of Defense and Justice. The cognizant officer
exercising general court-martial jurisdiction may obtain approval by the
Attorney General of a proposed grant of immunity by directing a letter
requesting the assistance of the Judge Advocate General (Code 20) in the
form prescribed in paragraph (e) of this section.
(e) Content of immunity requests. In all cases in which approval of
the Attorney General of the United States is required prior to the
issuance of a grant of immunity, whether under paragraph (c) or (d) of
this section, the cognizant officer exercising general court-martial
jurisdiction shall forward by message or letter the proposed order to
testify and grant of immunity to the Judge Advocate General (Code 20).
The order to testify should be substantially in the form set forth in
appendix A-1-i(3) of the Manual of the Judge Advocate General. Requests
for assistance shall be in writing, should allow at least three weeks
for consideration, and must contain the following information:
(1) Name, citation, or other identifying information of the
proceeding in which the order is to be used.
(2) Name of the witness for whom the immunity is requested.
(3) Name of the employer or company with which a witness is
associated or the military unit or organization to which a witness is
assigned.
(4) Date and place of birth, if known, of the witness.
(5) FBI or local police file number, if any, and if known.
(6) Whether any State or Federal charges are pending against the
witness and the nature of the charges.
(7) Whether the witness is currently incarcerated, under what
conditions, and for what length of time.
(8) A brief resume of the background of the investigation or
proceeding before the agency or department.
(9) A concise statement of the reasons for the request, including:
(i) What testimony the witness is expected to give;
(ii) How this testimony will serve the public interest;
(iii) Whether the witness:
(A) Has invoked the privilege against self-incrimination; or
(B) Is likely to invoke the privilege;
(iv) If paragraph (e)(9)(iii)(B) of this section is applicable, then
why it is anticipated that the prospective witness will invoke the
privilege.
(10) An estimate as to whether the witness is likely to testify in
the event immunity is granted.
(f) Post-testimony procedure. After a witness immunized in
accordance with paragraphs (c) and (d) of this section has testified,
the following information should be provided to the United States
Department of Justice, Criminal Division, Immunity Unit, Washington, DC
20530, via the Judge Advocate General (Code 20).
(1) Name, citation, or other identifying information, of the
proceeding in which the order was requested.
(2) Date of the examination of the witness.
(3) Name and residence address of the witness.
(4) Whether the witness invoked the privilege.
(5) Whether the immunity order was used.
(6) Whether the witness testified pursuant to the order.

[[Page 195]]

(7) If the witness refused to comply with the order, whether
contempt proceedings were instituted, or are contemplated, and the
result of the contempt proceeding, if concluded. A verbatim transcript
of the witness' testimony, authenticated by the military judge, should
be provided to the Judge Advocate General at the conclusion of the
trial. No testimony or other information given by a civilian witness
pursuant to such an order to testify (or any information directly or
indirectly derived from such testimony or other information) may be used
against him in any criminal case, except a prosecution for perjury,
giving a false statement, or otherwise failing to comply with the order.
(g) Review. Under some circumstances, the officer granting immunity
to a witness may be disqualified from taking reviewing action on the
record of the trial before which the witness granted immunity testified.
A successor in command not participating in the grant of immunity would
not be so disqualified under those circumstances.
(h) Form of grant. In any case in which a military witness is
granted transactional immunity, the general court-martial convening
authority should execute a written grant, substantially in the form set
forth in appendix section A-1-i(1) of the Manual of the Judge Advocate
General. In any case in which a military witness is granted testimonial
immunity, the general court-martial convening authority should execute a
written grant substantially in the form set forth in appendix section A-
1-i(2) of the Manual of the Judge Advocate General.

[56 FR 57803, Nov. 14, 1991]

Secs. 719.113-719.114 [Reserved]

Sec. 719.115 Release of information pertaining to accused persons; spectators at judicial sessions.

(a) Release of information--(1) General. There are valid reasons for
making information available to the public concerning the administration
of military justice. The task of striking a fair balance among the
protection of individuals accused of offenses, improper or unwarranted
publicity pertaining to their cases, public understanding of the
problems of controlling misconduct in the military service, and the
workings of military justice requires the exercise of sound judgment by
those responsible for administering military justice and by
representatives of the press and other news media. At the heart of all
guidelines pertaining to the furnishing of information concerning an
accused or the allegations against him is the mandate that no statements
or other information shall be furnished to news media for the purpose of
influencing the outcome of an accused's trial, or which could reasonably
be expected to have such an effect.
(2) Applicability of regulations. These regulations apply to all
persons who may obtain information as the result of duties performed in
connection with the processing of accused persons, the investigation of
suspected offenses, the imposition of nonjudicial punishment, or the
trial of persons by court-martial. These regulations are applicable from
the time of apprehension, the preferral of charges, or the commencement
of an investigation directed to make recommendations concerning
disciplinary action, until the imposition of nonjudicial punishment,
completion of trial (court-martial sessions) or disposition of the case
without trial. These regulations also prescribe guidelines for the
release or dissemination of information to public news agencies, to
other public news media, or to other persons or agencies for unofficial
purposes.
(3) Release of information. (i) As a general matter, release of
information pertaining to accused persons should not be initiated by
persons in the naval service. Information of this nature should be
released only upon specific request therefor, and, subject to the
following guidelines, should not exceed the scope of the inquiry
concerned.
(ii) Except in unusual circumstances, information which is subject
to release under the regulation should be released by the cognizant
public affairs officer; requests for information received from
representatives of news media should be referred to the public affairs
office for action. When an individual is suspected or accused of an
offense, care

[[Page 196]]

should be taken to indicate that the individual is alleged to have
committed or is suspected or accused of having committed an offense, as
distinguished from stating or implying that the accused has committed
the offense or offenses.
(4) Information subject to release. On inquiry, the following
information concerning a person accused or suspected of an offense or
offenses may generally be released except as provided in paragraph (6)
of this section:
(i) The accused's name, grade, age, unit, regularly assigned duties,
duty station, and sex.
(ii) The substance of the offenses of which the individual is
accused or suspected.
(iii) The identity of the victim of any alleged or suspected
offense, except the victim of a sexual offense.
(iv) The identity of the apprehending and investigative agency, and
the identity of accused's counsel, if any.
(v) The factual circumstances immediately surrounding the
apprehension of the accused, including the time and place of
apprehension, resistance, pursuit, and use of weapons.
(vi) The type and place of custody, if any.
(vii) Information which has become a part of the record of
proceedings of the court-martial in open session.
(viii) The scheduling of any stage in the judicial process.
(ix) The denial by the accused of any offense or offenses of which
he may be accused or suspected (when release of such information is
approved by the counsel of the accused).
(5) Prohibited information. The following information concerning a
person accused or suspected of an offense or offenses generally may not
be released, except as provided in paragraph (a)(6) of this section.
(i) Subjective opinions, observations, or comments concerning the
accused's character, demeanor at any time (except as authorized in
paragraph (4)(v) of this section), or guilt of the offense or offenses
involved.
(ii) The prior criminal record (including other apprehensions,
charges or trials) or the character or reputation of the accused.
(iii) The existence or contents of any confession, admission,
statement, or alibi given by the accused, or the refusal or failure of
the accused to make any statement.
(iv) The performance of any examination or test, such as polygraph
examinations, chemical tests, ballistics tests, etc., or the refusal or
the failure of the accused to submit to an examination or test.
(v) The identity, testimony, or credibility of possible witnesses,
except as authorized in paragraph (4)(iii), of this section.
(vi) The possibility of a plea of guilty to any offense charged or
to a lesser offense and any negotiation or any offer to negotiate
respecting a plea of guilty.
(vii) References to confidential sources or investigative techniques
or procedures.
(viii) Any other matter when there is a reasonable likelihood that
the dissemination of such matter will affect the deliberations of an
investigative body or the findings or sentence of a court-martial or
otherwise prejudice the due administration of military justice either
before, during, or after trial.
(6) Exceptional cases. The provisions of this section are not
intended to restrict the release of information designed to enlist
public assistance in apprehending an accused or suspect who is a
fugitive from justice or to warn the public of any danger that a
fugitive accused or suspect may present. Further, since the purpose of
this section is to prescribe generally applicable guidelines, there may
be exceptional circumstances which warrant the release of information
prohibited under paragraph (a)(5) of this section or the nonrelease of
information permitted under paragraph (a)(4) of this section. Attention
should be given to the Secretary of the Navy instructions implementing
the Freedom of Information Act (5720.42 series) and the Privacy Act
(5211.5C series). Consultation with the command judge advocate, if one
is assigned, or with the cognizant Naval Legal Service Office concerning
interpretation and application of these instructions is encouraged.
(b) Spectators. (1) The sessions of courts-martial shall be open to
the public, which includes members of both

[[Page 197]]

the military and civilian communities. In order to maintain the dignity
and decorum of the proceedings or for other good cause, the military
judge may reasonably limit the number of spectators in, and the means of
access to, the courtroom, exclude specific persons from the courtroom,
and close a session. Video and audio recording and taking of
photographs, except for the purpose of preparing the record of trial, in
the courtroom during the proceedings and radio or television
broadcasting of proceedings from the courtroom shall not be permitted.
The military judge may, as a matter of discretion, permit
contemporaneous closed-circuit video or audio transmission to permit
viewing or hearing by an accused removed from the courtroom or by
spectators when courtroom facilities are inadequate to accommodate a
reasonable number of spectators.
(2) At pretrial hearings. In any preliminary hearing, including a
hearing conducted pursuant to 10 U.S.C. 832 or a court of inquiry or
investigation conducted pursuant to the Manual of the Judge Advocate
General, the presiding officer, upon motion of the Government or the
defense or upon his motion, may direct that all or part of the hearing
be held in closed session and that all persons not connected with the
hearing be excluded therefrom. The decision to exclude spectators shall
be based on the ground that dissemination of evidence, information, or
argument presented at the hearing may disclose matters that will be
inadmissible in evidence at a subsequent trial by court-martial and is
therefore likely to interfere with the right of the accused to a fair
trial by an impartial tribunal.

[38 FR 5997, Mar. 6, 1973, as amended at 47 FR 49644, Nov. 2, 1982; 50
FR 23800, June 6, 1985]

Subpart D [Reserved]