Past reliability Corroboration Declarations against interest Oath Reputation of source Statement from victim or eyewitness Known soldiers telling CMDR Exigent Circumstances 315(g) – PC to search and Delay would result in loss of evidence Auto Exception 315(g)(3) – PC to search and Operable vehicle Immunity (Testimonial, Transactional, DeFacto) Forum Options for Accused Guilty Military judge hears providence inquiry (stipulation of fact) May have a pretrial agreement as to sentence Panel or military judge alone for sentencing Not Guilty MJ or panel trier fact and sentencing Immunity Only GCMCA can grant (but see RCM 704(e) MJ can sometimes) Transactional immune from trial for offenses under the code the entire – – incident Testimonial W statements will not be used at trial by CM for the prosecution – of W (or any derivate evidence) (1972) Kastigar v. US Protected from non-evidentiary use of immunized statements – including the decision to prosecute Decide before testimony or show by prep that the decision was untainted by testimony US v. Olivero Drug investigation, said he used them, but then lied about it at trial Failed to show by preop that decision was untained by testimony, but all evidence indicates the contrary Trial Counsel should have packaged everything up first, and made a decision that they were going to charge him De Facto Immunity Reasonably relied on apparent authority – Pretrial Procedural Requirements Preferral and Forwarding of Charges Forwarding Charges MCM prohibits a CA who acts as an accuser from referring the case, but not from forwarding the case with a recommendation as to disposition BUT a CA who merely signs the charge sheet and is an accuser “technically” may forward the case with a recommendation as to disposition only if the CA has remained impartial The key to determining rests with whether the CA maintains an “impartiality” official interest in the case (CMA, 1994) US v. Nix Whether an officer w/ an other than official interest in a case may make the discretionary decision to order a pretrial investigation of the charges and then officially recommend that the charges be referred to a GCM
Past reliability Corroboration Declarations against interest Oath Reputation of source Statement from victim or eyewitness Known soldiers telling CMDR Exigent Circumstances – 315(g) PC to search and Delay would result in loss of evidence Auto Exception – 315(g)(3) PC to search and Operable vehicle Immunity (Testimonial, Transactional, DeFacto) Forum Options for Accused Guilty Military judge hears providence inquiry (stipulation of fact) May have a pretrial agreement as to sentence Panel or military judge alone for sentencing Not Guilty MJ or panel trier fact and sentencing Immunity Only GCMCA can grant (but see RCM 704(e) MJ can sometimes) Transactional – immune from trial for offenses under the code – the entire incident Testimonial – W statements will not be used at trial by CM for the prosecution of W (or any derivate evidence) Kastigar v. US (1972) Protected from non-evidentiary use of immunized statements – including the decision to prosecute Decide before testimony or show by prep that the decision was untainted by testimony US v. Olivero Drug investigation, said he used them, but then lied about it at trial Failed to show by preop that decision was untained by testimony, but all evidence indicates the contrary Trial Counsel should have packaged everything up first, and made a decision that they were going to charge him De Facto Immunity – Reasonably relied on apparent authority Pretrial Procedural Requirements Preferral and Forwarding of Charges Forwarding Charges MCM prohibits a CA who acts as an accuser from referring the case, but not from forwarding the case with a recommendation as to disposition BUT a CA who merely signs the charge sheet and is “technically” an accuser may forward the case with a recommendation as to disposition only if the CA has remained impartial The key to determining “impartiality” rests with whether the CA maintains an official interest in the case US v. Nix (CMA, 1994) Whether an officer w/ an other than official interest in a case may make the discretionary decision to order a pretrial investigation of the charges and then officially recommend that the charges be referred to a GCM
Schenck_MilJustice_Fall_2011.docx