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Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 17388
Experience:  Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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Ive been called to testify as a witness to a court martial.

Resolved Question:

I've been called to testify as a witness to a court martial. I do not want to testify as I may incriminate myself. I believe I am a key person to question for the prosecution, but I have my own pending appeals and upcoming show cause board and I do not want to make any statements that can be used against me. Can I use my article 31 rights for a court martial?
Submitted: 1 year ago.
Category: Military Law
Expert:  Marsha411JD replied 1 year ago.
Hello,

Thank you for the information and your question. You don't have an option about appearing at the court-martial. Just as in the civilian arena, if you are subpoenaed you must appear. You can though refuse to answer certain questions that would be incriminating for you to answer based on the 5th Amendment right against self-incrimination. Not exactly Article 31, but the 5th Amendment. That said, you could also conceivably be given testimonial immunity by the prosecution. That means that you must testify truthfully and completely but that what you say cannot be used against you in any way (assuming it is true.)

But, in order to get that testimonial immunity, you need to speak to a defense judge advocate, probably the one who is helping you with your show cause hearing, about assisting you in this effort.

So, you can either ask for testimonial immunity and have a JAG review the agreement before you sign it, or you can refuse to answer only the incriminating questions by saying "I refuse to answer that on the grounds that it may incriminate me." Those are your options.

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 17388
Experience: Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
Marsha411JD and 4 other Military Law Specialists are ready to help you
Customer: replied 1 year ago.

Can I be detained or not answering questions?

Expert:  Marsha411JD replied 1 year ago.
Not exactly sure what you are asking, can you clarify your question? Do you mean if you invoke your right to remain silent on incriminating questions (remember that not all questions can be incriminating, for example, you name, duty station, knowing someone, etc.)? Or do you mean if you didn't show up after being subpoenaed? Or do you mean not testifying even after receiving testimonial immunity?
Customer: replied 1 year ago.

I will show up as subpoenaed but,


 


Once I'm on the stand and a question comes about that I refuse to answer, I can't be made to answer that question correct?


 


Can I be charged with anything for not answering a question?


 


I do not plan to except testimonial immunity as I do not want to testify against the subject on trial

Expert:  Marsha411JD replied 1 year ago.
Thank you for your reply. Just to clarify, you don't get a choice about testimonial immunity. Sorry if I wasn't clear on that. If the Government gives it to you, then you have to testify or you will be held in contempt of court and could be disciplined either through court-martial or NJP. So, if you invoke your right to remain silent on incriminating questions, the Government can then decide if they are going to give you testimonial immunity, if they do, you have no choice.

But, assuming they don't do that, then you cannot get into trouble for invoking your right to remain silent on questions that your response would be incriminating. But you really need to be working with your defense JAG what is helping you with your own disciplinary issues on this. They can work with the Government to make sure your interests are protected.

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