Illinois Administrative Code › Title 95 - VETERANS AND MILITARY AFFAIRS › Part 400 - ILLINOIS MANUAL FOR COURT-MARTIAL AND NONJUDICIAL PUNISHMENT › Subpart F - THE ILLINOIS MILITARY RULES OF EVIDENCE › Section 400.610 - Self-Incrimination

Current through Register Vol. 48, No. 28, July 12, 2024
a) Privilege
				Concerning Compulsory Self-Incrimination
1)
				General. The privileges against self-incrimination provided by the Fifth
				Amendment to the U.S. Constitution and Code Section 31 are applicable only to
				evidence of a testimonial or communicative nature. The privilege most
				beneficial to the individuals asserting the privilege shall be
				applied.
2) Standing
A) In General. The privilege of a witness to
				refuse to respond to a question the answer to which may tend to incriminate the
				witness is a personal one that the witness may exercise or waive at the
				discretion of the witness.
B)
				Judicial Advice. If a witness who is apparently uninformed of the privileges
				under this Section appears likely to incriminate himself or herself, the
				military judge should advise the witness of the right to decline to make any
				answer that might tend to incriminate the witness and that any
				self-incriminating answer the witness might make can later be used as evidence
				against the witness. Counsel for any party or for the witness may request the
				military judge to so advise a witness provided that such a request is made out
				of the hearing of the witness and, except in a special court-martial without a
				military judge, the members. Failure to so advise a witness does not make the
				testimony of the witness inadmissible.
3) Exercise of the Privilege. If a witness
				states that the answer to a question may tend to incriminate him or her, the
				witness may not be required to answer unless facts and circumstances are such
				that no answer the witness might make to the question could have the effect of
				tending to incriminate the witness or that the witness has, with respect to the
				question, waived the privilege against self-incrimination. A witness may not
				assert the privilege if the witness is not subject to criminal penalty as a
				result of an answer by reason of immunity, running of the statute of
				limitations, or similar reason.
A) Immunity
				Generally. The minimum grant of immunity adequate to overcome the privilege is
				that which, under the proper authority, provides that neither the testimony of
				the witness nor any evidence obtained from that testimony may be used against
				the witness at any subsequent trial other than in a prosecution for perjury,
				false swearing, the making of a false official statement, or failure to comply
				with an order to testify after the military judge has ruled that the privilege
				may not be asserted by reason of immunity.
B) Notification of Immunity or Leniency. When
				a prosecution witness before a court-martial has been granted immunity or
				leniency in exchange for testimony, the grant shall be reduced to writing and
				shall be served on the accused prior to arraignment or within a reasonable time
				before the witness testifies. If notification is not made as required by this
				subsection (a)(3)(B), the military judge may grant a continuance until
				notification is made, prohibit or strike the testimony of the witness, or enter
				such other order as may be required.
4) Waiver by a Witness. A witness who answers
				a question without having asserted the privilege against self-incrimination and
				thereby admits a self-incriminating fact may be required to disclose all
				information relevant to that fact except when there is a real danger of further
				self-incrimination. This limited waiver of the privilege applies only at the
				trial in which the answer is given, does not extend to a rehearing or new or
				other trial, and is subject to Section 400.705(h)(2).
5) Waiver by the Accused. When an accused
				testifies voluntarily as a witness, the accused waives the privilege against
				self-incrimination with respect to the matters concerning which he or she so
				testifies. If the accused is on trial for 2 or more offenses and on direct
				examination testifies concerning the issue of guilt or innocence as to only one
				or some of the offenses, the accused may not be cross-examined as to guilt or
				innocence with respect to the other offenses unless the cross-examination is
				relevant to an offense concerning which the accused has testified. This waiver
				is subject to Section 400.705(h)(2).
6) Effect of Claiming the Privilege
A) Generally. The fact that a witness has
				asserted the privilege against self-incrimination in refusing to answer a
				question cannot be considered as raising any inference unfavorable to either
				the accused or the government.
B)
				On Cross-Examination. If a witness asserts the privilege against
				self-incrimination on cross-examination, the military judge, upon motion, may
				strike the direct testimony of the witness in whole or in part, unless the
				matters to which the witness refuses to testify are purely
				collateral.
C) Pretrial. The fact
				that the accused, during official questioning and in exercise of rights under
				the Fifth Amendment to the U.S. Constitution or Code Section 31, remained
				silent, refused to answer a certain question, requested counsel, or requested
				that the questioning be terminated is inadmissible against the
				accused.
7)
				Instructions. When the accused does not testify at trial, defense counsel may
				request that the members of the court be instructed to disregard that fact and
				not to draw any adverse inference from it. Defense counsel may request that the
				members not be so instructed. Defense counsel's election shall be binding upon
				the military judge except that the military judge may give the instruction when
				the instruction is necessary in the interests of justice. (Il. Mil. R. Evid.
				301)