CAAF has issued its opinion in United States v. Morrisette.
1. WHETHER APPELLANT’S FIFTH AMENDMENT RIGHT AGAINST SELFINCRIMINATION WAS VIOLATED WHEN HE WAS PROSECUTED FOR OFFENSES ABOUT WHICH HE HAD PROVIDED IMMUNIZED STATEMENTS.
Baker writing for a unanimous court finds:
1. No abuse of discretion as to use of allegedly immunized statements.
We now affirm. Appellant has not demonstrated that the military judge’s findings of fact are clearly erroneous or that he misapprehended or misapplied the law. To the contrary, the military judge’s ruling is comprehensive and well reasoned. The law in this area is settled and sound. Applying the England factors, we conclude that the military judge did not abuse his discretion in determining that the Government has demonstrated that it did not make direct use of Appellant’s testimony. While some of the England [United States v. England, 33 M.J. 37, 38-39 (C.M.A. 1991)] factors cut in favor of Appellant, the ultimate question presented in this case is not whether the Government followed best practices (it did not) or whether the decision to prosecute occurred prior to the immunized testimony (it did not), but whether the Government made direct use of the content of Appellant’s immunized statements. The Government has met its burden in this regard. Further, although presenting a closer question, the military judge did not abuse his discretion in determining that the Government demonstrated that it did not make indirect use of Appellant’s immunized testimony.
2. Remanded for additional review in light of Fosler.
Three quick thoughts:
Appellant’s case was subsequently transferred to a new command, prosecution, and investigative team; however, not all of the cautions set forth in Kastigar were followed.
And so the prosecution nearly lost a case through failure to exercise care.
A caution for defense counsel about trusting the government when the government seeks to immunize and use the client before his own trial is complete.
And the “preponderance” of evidence standard is too lenient in favor of the prosecution in this critical area of compelled self-incrimination. Why not HBRD?