a) Privilege Concerning Compulsory Self-Incrimination

1. 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

1. 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.
2. 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. 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.

   1. 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.
   2. 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. 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. 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. 6) Effect of Claiming the Privilege

   1. 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.
   2. 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.
   3. 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. 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)

b) Waiver of the Privilege Against Self-Incrimination

1. 1) General Rule. After receiving applicable warnings under Section 400.625, a person may waive the rights described in that Section and in subsection (a) of this Section and make a statement. The waiver must be made freely, knowingly and intelligently. A written waiver is not required. The accused or suspect must acknowledge affirmatively that he or she understands the rights involved, affirmatively decline the right to counsel, and affirmatively consent to making a statement.

2. 2) Counsel

   1. A) If the right to counsel is applicable and the accused or suspect does not decline affirmatively the right to counsel, the prosecution must demonstrate by a preponderance of the evidence that the individual waived the right to counsel.

   2. B) If an accused or suspect interrogated requests counsel, any subsequent waiver of the right to counsel obtained during custodial interrogation concerning the same or different offenses is invalid unless the prosecution can demonstrate by a preponderance of the evidence that:

      1. i) the accused or suspect initiated the communication leading to the waiver; or
      2. ii) the accused or suspect has not continuously had his or her freedom restricted by confinement, or other means, during the period between the request for counsel and the subsequent waiver. (Il. Mil. R. Evid. 305A)