Is an officer&#39;s testimony in a military court considered coerced and thus inadmissible in criminal court proceedings? I was watching a Law and Order SVU episode which involves two court proceedings. The first is an article 32 hearing which is introduced in the episode as the military equivalent of grand jury. According to a transcript online, they say: An article 32 hearing. It's the military's version of a grand jury except there are no boundaries. They can ask her anything they want. An officer testifying in this article 32 hearing is later the subject of a criminal proceeding. At some point, the criminal prosecutor is presented with a file on the military hearing but he refuses to look at it saying, again from the transcript: I might have something that can help. [Military officer] Taverts' testimony at a military hearing... Stop! No, stop talking. Okay, you all right, counselor? You almost tripped over the garrity rule. Everything in this file is dirty. An officer can't invoke at a military hearing, so the courts consider this testimony to be compelled, to be coerced. So these statements cannot be used in a criminal prosecution. If I even so much as look at this file, I have to recuse myself from the case. Mistrial. Game over. Is it true that a military officer's testimony in military court may not be used as evidence in a criminal proceeding because the criminal court considers the testimony to be coerced? I'm wondering specifically if this is true as a blanket statement (i.e. no such testimony is allowed) or if it's only disallowed in certain specific cases where the military court allowed some testimony that violates the rules of evidence in criminal court.
Garrity Rule There is a &quot;Garrity Rule&quot;. It is derived from Garrity v. New Jersey, 385 U.S. 493 (1967). In that case the US Supreme Court held that military and law-enforcement officers and other public employees are not required to sacrifice their right against self-incrimination in order to avoid dismissal. Several police officers were accused of &quot;ticket fixing&quot; . They were interviewed, and although they were told they had a right not to incriminate themselves, were threatened with dismissal if they did not &quot;cooperate&quot;. The U.S. Supreme Court ruled that the employees’ statements, made under threat of termination, were compelled by the state in violation of the Fifth and Fourteenth Amendments. The decision asserted that: ... the option to lose their means of livelihood or pay the penalty of self-incrimination is the antithesis of free choice to speak or to remain silent. The statements were held not to be admissible. The US Supreme Court opinion can be found here. Effect of the Rule I find several sources (some listed below) indicating that public employees, including military personnel, may not be compelled, under threat of dismissal or serious discipline, to waive or refrain from invoking, their rights against self-incrimination. If such employees are subject to such threats, any statements are considered compelled, and are not admissible against the makers of the statements, much as if a Miranda warning had not been given to a person questioned while under arrest. This does not make the statements inadmissible against a different defendant. The procedures in courts-martial now require &quot;Garrity Warnings&quot;, and do not attempt to force officers or enlisted persons to testify to self-recriminating facts. I did not find any source suggesting that merely because testimony had been given in a court-martial, it is inadmissible. Nor did I find any source stating that merely being aware of inadmissible testimony renders a prosecutor or judge unable to continue. Judges hear inadmissible testimony every time there is a suppression hearing in which the evidence is in fact suppressed, and that is very frequent. It is only juries who must not hear such testimony. Io invoke the rule, there would need to be evidence that a witness had been ordered not to invoke the 5th, or threatened with dismissal or other serious consequence if s/he did so, and would have invoked it in the absence of such orders or threats. In the original Garrity case, the defendants objected at the trial and at other appropriate times. It was those objections which triggered the ruling. Conclusion In short it seems to me that the writers of the show significantly overstated the breadth and effect of the rule, perhaps for dramatic purposes. Sources In the October 2018 issue of &quot;The Adcisor&quot; a publication of the US Navy's Judge Advocate General's office, it is stated thst the following warning must be given to any civilian employees who are being interviewed as part of a military investigation of a crime: Garrity Warnings You are being asked to provide information as part of an internal and/or administrative investigation. This is a voluntary interview and you do not have to answer questions if your answers would tend to implicate you in a crime. No disciplinary action will be taken against you solely for refusing to answer questions. However, the evidentiary value of your silence may be considered in administrative proceedings as part of the facts surrounding your case. Any statement you do choose to provide may be used as evidence in criminal and/or administrative proceedings. in Garrity Rights for Law-Enforcement Officers by By Aaron Nisenson it is stated that: The basic premise of the Garrity protection is straightforward: First, an Officer cannot be compelled, by the threat of serious discipline, to make statements that may be used in a subsequent criminal proceeding; second, an Officer cannot be terminated for refusing to waive his Fifth Amendment right to remain silent. Gardner v. Broderick, 392 U.S. 273 (1968). Therefore, if an Officer gives a coerced statement, the statement is &quot;protected,” and cannot be used in a subsequent criminal prosecution. However, the practical application of Garrity has been complicated and uncertain. The Courts have been all over the map in their application of Garrity: with some Courts applying Garrity to protect Officers’ Constitutional rights, and other Courts seeming to try to evade Garrity. Thus, in the Garrity area, Officers are best served by following the old adage: prepare for the worst, and hope for the best. The initial issue in the application of Garrity is the Department’s actions in extracting a statement from an Officer. In order for Garrity protection to apply, the government must have “coerced” a statement from an Officer. Generally, this coercion consists of an order, under threat of termination, to give a statement on a work related matter The US Rules for Courts-Martal states in Rule 405. Preliminary hearing section (f) (2) (D) (on page 36) that an accused has the right to: Be informed of the right against self-incrimination under Article 31.
The citation could be written but it should be easy to beat. In the circumstance that you describe the accused could just say the he was not driving his car at the time. If the prosecution is a sham with all your friends saying you all saw this thing, then the defendant can bring all of his friends to say that he was at some other place. The benefit to having a cop on the scene is that the cop will get ID and positive identification. The other thing the cop has is expert judgment. If a cop sees unsafe lane movement and writes a ticket, his testimony in court carries more weight than the "it was not unsafe!" testimony of the accused. Keep in mind, getting all of your witnesses to court on the same day, after continuances and other delays, and getting them all to tell the same story to overcome the presumption of innocence is no small feat. All that to say, it's easier with police as witness. There are two mechanisms which could get you where you want to go. Private prosecution and citizen's arrest. Private prosecutions are a part of history but not strictly unavailable at the state level. You could write up some charging documents to see if you can get your target indicted. Citizen's arrest is interesting because the rules are fairly unclear unless governed by a specific statute. There are two necessary parts of citizens arrest and the first part gets the attention. The first part is the detention (arrest). The crimes for which a citizen can legally detain a suspect are likely defined by state statute. The second part is giving testimony about the witnessed crime. Let's assume that you see a felony happen and watch the perp walk into a gas station bathroom. You are prepared to arrest, do part number one, and then call the cops, to do part number two. But while you wait for the guy to come out of the bathroom a cop walks up. You explain the felony and the cop goes into the bathroom and arrests the guy. It's purely witness testimony that led to the arrest and the indictment (physical evidence - let's say there is none) and even the trial. You successfully get the guy indicted and when you show up to testify you tell the story as you witnessed it. Now the accused gets to take the stand. When he takes the stand he says, "it was the other guy." When asked, "what other guy?" He says, "I was in the bathroom and a guy ran in and went into the stall. Then a cop came in and arrested me." Reasonable doubt right there. How much more if it's a bunch of friends ratting on some lone driver? Police need evidence. Prosecutors need evidence. Judges need evidence.
Perjury is not 'not telling the truth'. It requires (in most jurisdictions) being proven to have deliberately lied under oath. As Xavier pointed out, you are not on oath when entering a plea (among other reasons, you would be required to incriminate yourself). Secondly, "I am not guilty" could mean anything from "the prosecution wrongly think that what I did is illegal" to "this law is unconstitutional" even if the facts are not in dispute; either may be mistaken without being a lie. If the facts are in dispute, the jury will have to deliver a verdict that implies (it does not state, let alone prove) that they disbelieve one party; deliberate falsehood, whether by a defendant or a police officer, would be several steps beyond that.
Note that the original Stolen Valor Act of 2005, which made it an offense to falsely claim to have been awarded any US military medal or decoration, or to wear such without authorization, was ruled unconstitutional in United States v. Alvarez, 567 U.S. 709 (2012). The Stolen Valor Act of 2013 makes this an offense only if done for profit. As described in this Law.se Q&amp;A, United States vs Hamilton (2012) limited the law against wearing military uniform without authorization to cases where it is done with intent to deceive (at least in the Fourth Circuit, but I suspect that the same rule would be applied throughout the country).
You have to deconstruct the question on a country by country basis. In the US legal system, the question presupposes something incorrect, that there are &quot;investigators&quot; who play a rule in legal system, and their job is to determine guilt vs. innocence. That is something determined by the &quot;finder of fact&quot;, typically the jury (it could be a judge, when you have a bench trial). The finder of fact may take into consideration testimony provided by a witness, and it is possible that a witness is an expert in some relevant area, who might attest to the significance of a claimed piece of evidence. The expert cannot testify on the question of guilt. For example, a DNA sample might be admitted as evidence that the defendant was present in certain circumstances, which could reasonably lead the finders of fact to conclude that the defendant did strike the victim. A DNA sample cannot testify, therefore some expert must testify about the significance of the sample, specifically whether the sample &quot;might have&quot; come from the defendant, or &quot;definitely came from&quot; the defendant. Others will testify as to the circumstances surrounding the collection of the sample. It is then up to the finder of fact to evaluate all of the evidence plus understand the instructions regarding the criteria for finding the defendant &quot;guilty&quot;. Theoretically, Bayes Law could enter into an expert witness's (scientific) testimony, and likewise an opposing witness could contradict the putative relevance of BL in terms of reaching a scientific conclusion. BL could enter into the discussion at the level of the bottom line &quot;definitely/possibly does come from the defendent&quot;. The only practical way that I can see BL entering into the courtroom at least non-gratuitously would be if there is a dispute over the reliability of a certain test, thus should the testimony be allowed in the first place (it might be excluded as being unreliable). There is a genre of research (for example this) that addresses the problem of sketchy statistic inferences, pointing to a role for BL. I would say that the prospects are dim, not bright.
It seems like the officer should have to present at least some kind of evidence that the alleged crime occurred. Testimony is evidence. Officers can and do abuse this, but courts tend to give them the benefit of the doubt, so they typically attribute greater weight and credibility to a police officer's testimony than to that of a defendant.
What you describe is essentially a Warrant Canary, which is legally murky. From a functional point of view, it is breaking the non-disclosure requirements of the NSL by omission. Proponents of warrant canaries would point to case law such as West Virginia State Board of Education v. Barnette and Wooley v. Maynard to suggest that the Free Speech clause of the First Amendment restricts the government from compelling speech. New York Times Co. v. United States could also be read to prevent the prior restraint unless the existence of the NSL was successfully argued to be &quot;crucial military information&quot;.
The defence in a criminal case has no obligation to inform the prosecution of anything. The onus is on the prosecution to provide the evidence to convict and the defence doesn't have to and indeed shouldn't help them do it. The defence can and probably would use conflicting statements by a prosecution witness to discredit that witness in the eyes of the jury. These do not have to be material to the case: just showing the witness is inconsistent in general is helpful.