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Memorandum of Pretrial Agreement for General and Special Courts-Martial -Continued - 14134_167
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Sample Request for a Proposed Grant of Immunity - 14134_169
GRANTS  OF  IMMUNITY 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. Issuance of a grant of immunity is in consideration for an individual testifying for the government or the defense in the investigation and/or the trial of the principal offender. Transactional   immunity   means   immunity   from prosecution  for  any  offense  or  offenses  that  the compelled   testimony   relates. Testimonial  immunity means immunity from the use 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 (OEGCMJs). 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  in  the  following  paragraph. Procedure A written recommendation that a certain witness be granted  either  transactional  or  testimonial  immunity  in consideration  for  testimony  essential  to  the  government or to the defense must be sent to the OEGCMJ. A sample proposed grant of immunity request from a TC is shown in figure 6-11. If the case has been referred for trial, the TC  sends  the  recommendation.  If  the  case  has  not  been referred  for  trial,  then  the  pretrial  investigating  officer, the counsel or recorder of any other fact-finding body, or the investigator when no charges have been preferred sends the recommendation. The recommendation must state in detail why the testimony of the witness is so essential or material that the interests of justice cannot be served without the grant of immunity. Before acting on the recommendation, the OEGCMJ refers it to his or her SJA for consideration and advice. If approved, a copy of the written grant of immunity must be served upon the accused or his or her DC 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 or her DC in the same manner as a grant of immunity. Figure 6-12 illustrates a sample transactional grant of immunity. Figure 6-13 shows a sample of a testimonial grant of  immunity. Civilian Witnesses When  the  testimony  of  a  civilian  witness  is considered necessary at a court-martial, and the civilian witness has refused or is likely to refuse to testify or provide other information on the basis of his or her privilege  against  self-incrimination,  the  approval  of  the Attorney General of the United States, or his or her designee,  must  be  obtained  before  the  OEGCMJ  may issue an order to the civilian witness to testify. In all cases that approval of the Attorney General of the United States is required before issuance of a grant of  immunity,  the  cognizant  OEGCMJ  sends  by  message or letter the proposed order to testify and grant of immunity to the Judge Advocate General (JAG). The  order  to  testify  should  be  in  the  form  set forth in appendix A-1-i(3) of the  JAG Manual  and as  shown  in  figure  6-14.  Requests  for  assistance will be in writing, and you should allow at least 3 weeks  for  consideration.  The  request  must  contain the following: l l l l l l l l l Name, citation, or other identifying information of the proceeding in which the order is to be used Name of the individual for whom the immunity is requested Name  of  the  employer  or  company  that  the witness  is  associated  with Date and place of birth, if known, of the witness FBI number or local police number, if any, and if known Whether any state or federal charges are pending against the prospective witness and the nature of the charges Whether  the  witness  is  currently  incarcerated, under what conditions, and for what length of time A   brief   resume   of   the   background   of   the investigation  or  proceeding A  concise  statement  of  the  reasons  for  the request, including the following information: What  testimony  the  prospective  witness  is expected to give 6-16

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