general court-martial jurisdiction over the command. Grants of such permission shall be reported by the general court-martial authority concerned by means of a letter addressed to the Secretary of the Navy in which he shall describe the offense alleged, the action taken by civil authorities, and the circumstances bringing the case within one or more of the exceptions to the general policy.

(ii) Reporting requirements. The provisions of this section do not affect the reporting requirements or other actions required under other regulations in cases of convictions of service personnel by domestic or foreign courts and adjudications by juvenile court authorities.

(4) Limitations. Personnel who have been tried by courts which derive their authority from the United States, such as U.S. District Courts, shall not be tried by court-martial for the same act or acts. See paragraph 68d, MCM.

(f) Cases involving classified information. (1) See OPNAVINST 5510.1 series for procedures relating to trial of cases involving classified information.

(2) See SECNAVINST 5511.4 series for policies relating to trial of cases involving cryptographic systems and

publications.

(g) Major Federal offenses—(1) Background. The Federal civil authorities have concurrent jurisdiction with military authorities over offenses committed by military personnel which violate both the Federal criminal law and the Uniform Code of Military Justice. The Attorney General and the Secretary of Defense have agreed on guidelines for determining which authorities shall have jurisdiction to investigate and prosecute major crimes in particular cases. The administration of this program, on behalf of the naval service, has been assigned to the Naval Investigative Service. Guidelines are set forth in SECNAVINST 5430.13 series.

(2) Limitation on court-martial jurisdiction. Commanding officers receiving information indicating that naval personnel have committed a major Federal offense (including any major criminal offense, as defined in SECNAVINST 5430.13 series, commit

ted on a naval installation) shall refrain from taking action with a view to trial by court-martial, but shall refer the matter to the commanding officer of the cognizant Naval Investigative Service Office, or his nearest representative, for a determination in accordance with SECNAVINST 5430.13 series. In the event that the investigation of any such case is referred to a Federal civilian investigative agency, any resulting prosecution normally will be conducted by the cognizant U.S. attorney, subject to the exceptions set forth below.

(3) Exceptions. (i) Where it appears that naval personnel have committed several offenses, including both major Federal offenses and serious but purely military offenses, naval authorities are authorized to investigate all of the suspected military offenses, and such of the civil offenses as may be practicable, and to retain the accused for prosecution. Any such action shall be reported immediately to the Secretary of the Navy (Judge Advocate General) and to the cognizant officer exercising general court-martial jurisdiction.

(ii) When, following referral of a case to a civilian Federal investigative agency for investigation, the cognizant U.S. attorney declines prosecution, the investigation normally will be resumed by the Naval Investigative Service, and the command may then commence court-martial proceedings as soon as the circumstances warrant.

(iii) If, while investigation by a Federal civilian investigative agency is pending, existing conditions require immediate prosecution by naval authorities, the officer exercising general court-martial jurisdiction will contact the cognizant U.S. attorney to seek approval for trial by court-martial. If agreement cannot be reached at the local level, the matter shall be referred to the Judge Advocate General for disposition.

(4) Related matters. See SECNAV INST 5430.13 series for procedures in cases involving civilian employees. See Part 720 of this chapter concerning the interviewing of naval personnel by Federal investigative agencies and the delivery of personnel to Federal authorities.

[38 FR 5997, Mar. 6, 1973, as amended at 39 FR 18436, May 28, 1974]

§ 719.108 Superior competent authority defined.

(a) Accuser in a Navy chain of command. Whenever a commanding officer comes within the purview of 10 U.S.C. 822(b) and 823(b), the “superior competent authority" as used in those articles is, in the absence of specific direction to the contrary by an officer authorized to convene general courtsmartial and superior in the chain of command to such accuser, the area coordinator authorized to convere general or special courts-martial, as appropriate. For mobile units, the area coordinator for the above purpose is the area coordinator most accessible to the mobile unit at the time of forwarding of the charges. When the cognizant area coordinator is not superior in rank or command to the accuser, or when the accuser is an area coordinator, or if it is otherwise impossible or impracticable to forward the charges as specified above, they shall be forwarded to any superior officer exercising the appropriate court-martial jurisdiction (see paragraph 33i, MCM). An immediate or delegated area coordinator may receive the charges in lieu of the area coordinator if he is authorized to convene the appropriate court-martial and is superior in rank or command to the accuser.

(b) Accuser in the chain of command of the Commandant of the Marine Corps. Whenever a commanding officer comes within the purview of 10 U.S.C. 822(b) and 823(b), the "superior competent authority" as used in those articles is defined as any superior officer in the chain of command authorized to convene a special or general court-martial, as appropriate. If such an officer is not reasonably available, or if it is otherwise impossible or impracticable to so forward the charges, they shall be forwarded to any superior officer exercising the appropriate court-martial jurisdiction. See paragraph 331, MCM.

Subpart C-Trial Matters

§ 719.109 Trial guides.

(a) Summary courts-martial. For the conduct of summary courts-martial, guidance may be obtained in NAVPERS 10091, Trial Guide for Summary Courts-Martial. The trial guide is for assistance and does not have the mandatory effect of regulations.

(b) Special courts-martial with a military judge. A special court-martial with a military judge, to the extent possible, should follow the same procedures as a general court-martial, including any 10 U.S.C. 839(a) session that may be held. See appendix 8 a and b, MCM.

§ 719.110 Reporters and interpreters.

(a) Appointment-(1) Reporters. In each case before a general court-martial or before a military commission, the convening authority shall detail a qualified court reporter or reporters. The detail of qualified court reporters in cases of special courts-martial shall be in accordance with § 719.106 (a) and (b). If no reporter is detailed and sworn, the special court-martial may not adjudge a bad conduct discharge. (See paragraphs 15b and 33j, MCM, as to when bad conduct discharges may be adjudged by special courts-martial.) Detailed reporters shall record in shorthand or by mechanical or other means the proceedings of, and the testimony taken before, the court or commission. A reporter may be detailed by the convening authority of a summary court-martial, by the officer who orders an investigation under 10 U.S.C. 832, or by the officer who directs the taking of a deposition. As directed by the trial counsel of a general or special court-martial or by the summary court, the reporter shall prepare either a verbatim or a summarized record and shall preserve the complete shorthand notes or mechanical record of the proceedings as provided in § 719.120. Additional clerical assistants may be detailed when necessary.

(2) Interpreters. In each case before a court-martial or military commission, in each investigation conducted under 10 U.S.C. 832 and in each in

stance of the taking of a deposition, the convening authority or the officer directing such proceeding shall appoint, when necessary, an interpreter for the court, commission, investigation, or officer taking the deposition.

(3) Manner of appointment. Appointment of reporters and interpreters by the convening authority or authority directing the proceedings may be effected personally by him or, at this discretion, by any other person. Such appointment may be oral or in writing.

(b) Source and expenses. Whenever possible, reporters, interpreters, and clerical assistants shall be detailed from either naval or civilian personnel serving under the convening authority or officer directing the proceeding, or placed at his disposal by another officer or by other Federal agencies. When necessary, the convening authority or officer directing the proceeding may employ or authorize the employment of a reporter or interpreter, at the prevailing wage scale, for duty with a general or special courtmartial, military commission, an investigation under 10 U.S.C. 832, or at the taking of a deposition. No expense to the Government shall be incurred by the employment of a reporter, interpreter, or other person to assist in a court-martial, military commission, 10 U.S.C. 832 investigation, or the taking of a deposition, except when authorized by the convening authority or officer directing the proceeding. When required reporters or interpreters are not available locally, the convening authority or officer directing the proceeding shall communicate with the Chief of Naval Personnel or Commandant of the Marine Corps, as appropriate, requesting that such assistance be provided or authorized.

tary judge need not be resworn at any court-martial to which he is subsequently detailed. Military judges will customarily be given a one-time oath. In the event that a military judge detailed to a particular court-martial has not been previously sworn, the trial counsel shall administer the oath to the military judge at the appropriate point in the proceedings. The following oath shall be used for the swearing in of military judges:

I

do swear (or affirm) that I will faithfully and impartially perform, according to my conscience and the laws applicable to trials by courts-martial, all the duties incumbent upon me as military judge. So help me God.

(b) Counsel. Any military counsel, certified in accordance with (10 U.S.C. 827(b), may be given a one-time oath. Such oath will customarily be administered when military counsel is certified. The oath may be given at any time and by any officer authorized by 10 U.S.C. 936, and section 2502 to administer oaths. Once such an oath is taken, counsel need not be resworn at any trial to which he is detailed trial counsel, assistant trial counsel, defense counsel or assistant defense counsel, or in any case in which he is serving as individual counsel at the request of the accused. Individual counsel, military (not certified) or civilian, requested by the accused must be sworn in each case. Detailed trial and defense counsel who are not certified in accordance with 10 U.S.C. 827(b) must be sworn in each case. Counsel who have taken one-time oaths administered by forces of the armed services other than the naval services need not again be sworn in courts-martial convened in the naval service. The following oath may be used in administering a one-time oath to counsel:

amended, a new member may be sworn when he arrives. This oath may be administered by any officer authorized by 10 U.S.C. 936, and section 2502 of the Manual of the Judge Advocate General to administer oaths. When court members are not sworn at trial, the fact that they have previously been sworn will be recorded in the transcript or record of trial. The oaths used for court members will be those prescribed in paragraph 114b, MCM. See also appendix 8b, MCM.

(d) Reporters. Any court reporter, military or civilian, may be given a one-time oath. The oath normally will be administered by trial counsel in the first court-martial to which the court reporter is assigned. Once such oath is taken, the court reporter need not be resworn at any trial to which he is assigned. Each command to which court reporters are permanently attached shall maintain a record of the onetime oaths administered to reporters attached to that command. In addition, a notation of the fact that a military court reporter has taken a onetime oath should be placed in the service record of such court reporter for future reference with instructions that such notation be retained in the service record upon re-enlistment. When the court reporter is not sworn at trial, the fact that he has been previously sworn will be recorded in the transcript or record of trial. The following oath may be used in administering a one-time oath to court reporters:

I do swear (or affirm) that I will faithfully perform the duties of reporter in any court-martial to which I am assigned as reporter. So help me God.

(e) Interpreters. Interpreters will be sworn by the trial counsel as provided in paragraph 114e, MCM.

§ 719.112 Authority to grant immunity from prosecution.

(a) General. In certain cases involving more than one participant, the interests of justice may make it advisable to grant immunity, either transactional or testimonial, to one or more of the participants in the offense in consideration for their testifying for the Government in the investigation and/or the trial of the principal of

fender. Transactional immunity, as that term is used in this section, shall mean immunity from prosecution for any offense or offenses to which the compelled testimony relates. Testimonial immunity, as that term is used in this section, shall mean immunity from the use, in aid of future prosecution, of testimony or other information compelled under an order to testify (or any information directly or indirectly derived from such testimony or other information). The authority to grant either transactional or testimonial immunity to a witness is reserved to officers exercising general court-martial jurisdiction. This authority may be exercised in any case whether or not formal charges have been preferred and whether or not the matter has been referred for trial. The approval of the Attorney General of the United States on certain orders to testify may be required, as outlined below.

(b) Procedure. The written recommendation that a certain witness be granted either transactional or testimonial immunity in consideration for testimony deemed essential to the Government shall be forwarded to the cognizant officer exercising general court-martial jurisdiction by the trial counsel in cases referred for trial, the pretrial investigating officer conducting an investigation upon preferred charges, the counsel or recorder of any other factfinding body, or the investigator when no charges have been preferred. The recommendation shall state in detail why the testimony of the witness is deemed so essential or material that the interests of justice cannot be served without the grant of immunity. The officer exercising general court-martial jurisdiction shall act upon such request after referring it to his staff judge advocate for consideration and advice.

(c) Civilian witnesses. Pursuant to 18 U.S.C. 6002 and 6004, if the testimony or other information of a civilian witness at a court-martial may be necessary to the public interest, and if the civilian witness has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination, then the approval of the Attorney General of

the United States or his designee must be obtained prior to the issuance of an order to testify to the witness by the cognizant officer exercising general court-martial jurisdiction. The officer exercising general court-martial jurisdiction may obtain the approval of the Attorney General in such a circumstance by directing a letter to the Judge Advocate General requesting assistance in obtaining a grant of immunity for the civilian witness and enclosing the signed order to testify sought to be approved. The order to testify should be substantially in the form set forth in Appendix section 1d(2). Requests to grant immunity to civilian witnesses must be in writing, allowing at least 3 weeks for consideration, and must contain the following information:

(1) Name, citation, or other identifying information, of the proceeding in which the order is to be used.

(2) Name of the individual for whom the immunity is requested.

(3) Name of the employer or company with which he is associated.

(4) Date and place of birth, if known, of the witness.

(5) FBI number or local police number, if any, and if known.

(6) Whether any State or Federal charges are pending against the prospective witness and the nature of the charges.

(7) Whether the witness is currently incarcerated, under what conditions, and for what length of time.

(8) A brief resume of the background of the investigation or proceeding before the agency or department.

(9) A concise statement of the reasons for the request, including:

(i) What testimony the prospective witness is expected to give;

(ii) How this testimony will serve the public interest;

(iii) Whether the witness (a) has invoked the privilege against self incrimination; or (b) is likely to invoke the privilege;

(iv) If paragraph (c)(9)(iii)(b) of this section is applicable, then why it is anticipated that the prospective witness will invoke the privilege.

Filed as part of original document.

(10) An estimate as to whether the witness is likely to testify in the event immunity is granted.

(d) Civilian witnesses-post-testimony procedure. After the witness has testified, the following information should be provided to the United States Department of Justice, Criminal Division, Immunity Unit, Washington, D.C. 20530.

(1) Name, citation, or other identifying information, of the proceeding in which the order was requested.

(2) Date of the examination of the witness.

(3) Name and residence address of the witness.

(4) Whether the witness invoked the privilege.

(5) Whether the immunity order was used.

(6) Whether the witness testified pursuant to the order.

(7) If the witness refused to comply with the order, whether contempt proceedings were instituted, or are contemplated, and the result of the contempt proceeding, if concluded. A copy of this correspondence together with a verbatim transcript of the witness' testimony, authenticated by the military judge, should be provided to the Judge Advocate General at the conclusion of the trial. No testimony or other information given by a civilian witness pursuant to such an order to testify (or any information directly or indirectly derived from such testimony or other information) may be used against him in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

(e) Review. The officer granting immunity to a witness is thereafter precluded from taking reviewing action on the record of the trial before which the witness granted immunity testified. However, a successor in command not participating in the grant of immunity is not so precluded.

(f) Form of grant. In any case in which a military witness is granted transactional immunity, the general court-martial convening authority should execute a written grant substantially in the form set forth in appendix section A-1-d(1). In any case in which a military witness is granted