Immunity

(a) Types of immunity. Two types of immunity may be granted under this rule. (1) Transactional immunity. A person may be granted transactional immunity from trial by court- martial for one or more offenses under the UCMJ. (2) Testimonial immunity. A person may be granted immunity from the use of testimony, statements, and any information directly or indirectly derived from such testimony or statements by that person in a later court-martial. (b) Scope. Nothing in this rule bars: (1) A later court-martial for perjury, false swearing, making a false official statement, or failure to comply with an order to testify; or (2) Use in a court-martial under paragraph (b)(1) of this rule of testimony or statements derived from such testimony or statements. (c) Authority to grant immunity. A general court- martial convening authority, or designee, may grant immunity, and may do so only in accordance with this rule. (1) Persons subject to the UCMJ. A general court- martial convening authority, or designee, may grant immunity to a person subject to the UCMJ. However, a general court-martial convening authority, or designee, may grant immunity to a person subject to the UCMJ extending to a prosecution in a United States District Court only when specifically authorized to do so by the Attorney General of the United States or other authority designated under chapter 601 of title 18 of the U.S. Code. (2) Persons not subject to the UCMJ. A general court-martial convening authority, or designee, may grant immunity to persons not subject to the UCMJ only when specifically authorized to do so by the Attorney General of the United States or other authority designated chapter 601 of title 18 of the U.S. II-49 Code. (3) Other limitations. Subject to Service regulations, the authority to grant immunity under this rule may be delegated in writing at the discretion of the general court-martial convening authority to a subordinate special court-martial convening authority. Further delegation is not permitted. The authority to grant or delegate the authority to grant immunity may be limited by superior authority. (d) Procedure. A grant of immunity shall be written and signed by the convening authority who issues it. The grant shall include a statement of the authority under which it is made and shall identify the matters to which it extends. (e) Decision to grant immunity. Unless limited by superior competent authority, the decision to grant immunity is a matter within the sole discretion of the general court-martial convening authority or designee. However, if a defense request to immunize a witness has been denied, the military judge may, upon motion by the defense, grant appropriate relief directing that either an appropriate convening authority grant testimonial immunity to a defense witness or, as to the affected charges and specifications, the proceedings against the accused be abated, upon findings that: (1) The witness intends to invoke the right against self-incrimination to the extent permitted by law if called to testify; and (2) The Government has engaged in discriminatory use of immunity to obtain a tactical advantage, or the Government, through its own overreaching, has forced the witness to invoke the privilege against self- incrimination; and (3) The witness’ testimony is material, clearly exculpatory, not cumulative, not obtainable from any other source and does more than merely affect the credibility of other witnesses.