When two or more service members are charged together and tried in a single joint court-martial, a recurring problem is whether one of them can be made to testify against the others. Each accused has a privilege against self-incrimination, so none can simply be called as a witness. Immunity is the tool that can unlock that testimony, but using it in the middle of a joint trial creates structural conflicts. The result is that a co-accused can testify under a grant of testimonial immunity, but doing so in a genuinely joint proceeding is awkward, and in practice it usually forces the trial to be split so that the immunized person testifies as a witness rather than sitting as a defendant.
The privilege that immunity overcomes
Every accused at a court-martial enjoys the Fifth Amendment privilege against self-incrimination and the parallel protection of Article 31 of the UCMJ. Those protections mean that a co-accused cannot be compelled to take the stand and answer questions that might incriminate him. A co-accused may choose to testify voluntarily, but he cannot be forced to.
Immunity removes the basis for the privilege. Two kinds exist in the military system. Transactional immunity protects the witness from prosecution for the offenses about which he testifies. Testimonial, or use, immunity is narrower: it bars the government from using the compelled testimony, or any evidence derived from it, against the witness in a later prosecution. The Supreme Court and military courts have long held that testimonial immunity is sufficient to displace the privilege, because it leaves the witness no worse off than if he had remained silent. Once a proper grant of testimonial immunity is in place, the witness no longer has a valid Fifth Amendment basis to refuse and can be compelled to testify.
Who grants immunity in the military
Immunity in the military is granted by the general court-martial convening authority, not by the prosecutor or the court. The grant is a unilateral act of that authority and must be in writing. Service regulations and the Rules for Courts-Martial govern the procedure, including coordination with the Department of Justice in certain cases. A grant of testimonial immunity is the minimum grant adequate to overcome the privilege, and the written grant must be served on the witness or counsel a reasonable time before the testimony. A military judge cannot grant immunity directly, though in narrow circumstances a judge may effectively require the government to choose between immunizing a defense witness and abating the proceedings when the denial of immunity would deprive the accused of a fair trial.
The structural problem in a joint trial
Here is where the joint-trial setting complicates matters. So long as a person remains an accused in the proceeding, he retains his privilege and cannot be compelled to incriminate himself. Immunizing one co-accused and then calling him to testify against the others while he is still a defendant in the same trial is incompatible with his status as an accused. He cannot simultaneously be a defendant exercising the privilege and a compelled witness who has lost it.
The accepted solution is severance. The Rules for Courts-Martial permit, and fairness often requires, severing the trials of jointly charged accused when their interests conflict, and the immunity scenario is a textbook conflict. Once the immunized member’s case is severed, for example resolved by guilty plea, dismissed, tried separately, or otherwise removed from the joint proceeding, he is no longer an accused in that trial and can be compelled, under the immunity grant, to testify as a witness against the former co-accused. In this way the testimony is obtained, but the proceeding is no longer truly joint as to him.
Fairness concerns when immunized testimony is used
Even after severance, immunized co-accused testimony raises reliability and fairness questions that the defense can press. A witness who has been granted immunity, especially one who has resolved his own case in exchange for cooperation, has an obvious incentive to shade his account in the government’s favor. The defense is entitled to cross-examine fully on the terms of the immunity and any related agreement, and the members may be instructed to weigh such testimony with caution.
There are also limits designed to protect the immunized witness himself. Because the immunity is testimonial, the government may not use his compelled statements, or evidence derived from them, against him in any later prosecution. If the government later prosecutes the immunized witness, it bears the burden of proving that its evidence came from sources wholly independent of the immunized testimony. These protections preserve the integrity of the bargain that made the testimony available.
Bottom line
A co-accused can be compelled to testify under a grant of testimonial immunity, because testimonial immunity removes the Fifth Amendment and Article 31 basis for refusing. But in a genuinely joint trial this cannot happen while the person remains an accused in the proceeding, so the practical answer is that the case is severed first, after which the immunized individual testifies as a witness rather than as a co-defendant. Immunity is granted by the general court-martial convening authority in writing, and any resulting testimony is open to vigorous cross-examination about the witness’s incentives, while the immunized witness retains protection against later use of his compelled statements.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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