N.Y. Comp. Codes R. & Regs. Tit. 9 § 515.8 - Preparation for trial by summary courts-martial

(a) General. Upon receipt of the charges and accompanying papers referred by the convening authority, the summary courts-martial (SCM) should consider, among other aspects of the case, the following:

(1) The file received will normally include several copies of the charge sheet; written statements of witnesses or summaries thereof; any documentary evidence, such as DA form 1379 as utilized by the Army National Guard and NGB form 633 as utilized by the Air National Guard indicating a change in personnel status for cases involving absence without leave; and copies of the record of previous convictions, if any.

(2) The SCM may use statements of witnesses contained in the file only for the purpose of preparing for trial; that is, to determine the order of witnesses and the questions the SCM will ask and for certain other limited purposes such as impeachment of the testimony of a witness at trial by previously inconsistent statements.

(3) The SCM may not use a military police report as a substitute for live witnesses except to the extent the accused consents after being advised that he or she need not do so, and that he or she is entitled to have the witnesses present.

(4) In preparing for trial, the SCM may locate and obtain for use at the trial any relevant documentary or real evidence, even if it was not contained or mentioned in the file as received.

(5) The SCM may consider as evidence in the case only the testimony and other evidence admissible under the rules of evidence (Part 517 of this Title) which is actually received as evidence at the trial in the presence of the accused.

(6) A record of previous convictions will rarely be admissible on the question of guilt or innocence. Therefore, you may consider previous convictions only for the purposes of determining what sentence is appropriate in the event you have found the accused guilty.

(7) Remember, that any offense to which the accused pleads not guilty, the accused must be presumed to be innocent until guilt beyond a reasonable doubt is established by legal and competent evidence received at the trial in the accused's presence.

(b) Examination of the charge sheet.

(1) Determine whether the pay of the accused entered on page 1 of the charge sheet is consistent with the accused's grade and length of service. If the pay of the accused as reflected on the charge sheet appears to be inaccurate, determine the facts and make appropriate corrections on all copies of the charge sheet. The SCM should initial any changes.

(2) Correct any obvious administrative, clerical or typographical errors on the charge sheet and initial each. Corrections of the charges and specifications which involve the inclusion of any person, offense, or matter not fairly included in the charges as referred for trial will not be made. If the charges or specifications are faulty in some material respect, return the file to the convening authority, explaining the reason for returning it.

(3) Ascertain whether the endorsement by which the case has been referred for trial is administratively correct, including the designation of the court-martial order by which the SCM was detailed. If it is determined that the referral for trial is incorrect, return the file to the convening authority with an explanation.

(4) Ascertain whether the charges are sworn. If they are not, confer with the accuser to determine whether he desires to swear to the truth of the charges. An accused may not be tried on unsworn charges over his objection.

(c) Determining the law applicable to the case.

(1) Familiarize yourself with the elements of the offenses charged; i.e., the specific acts or omissions and the accompanying mental state, if applicable, which constitutes the prescribed conduct. Assistance in this regard can be obtained by reading the description of the offense or offenses in Part 518 of this Title. Also, check to see if each offense charged refers to the proper section of the Military Law.

(2) Be sure that each specification presented in support of each offense charged actually alleges an offense in that if the allegations of the specification were proved beyond a reasonable doubt at trial, they would satisfy the elements of that offense. If it is concluded that the wording of the specification departs so materially from an applicable form specification that either no offense is alleged or the specification is ambiguous, return the file to the convening authority stating the reasons for returning it.

(3) If the accused is charged with a failure to obey a regulation or written order and a copy of the directive is not included in the file, obtain copies of the directive and be familiar with its provisions.

(d) Preparation for initial session and procurement of witnesses.

(1) Arrange for a location at which the initial session may be held. This location must accommodate the hearing of witness testimony. Set a time, date and uniform for the initial session.

(2) Notify the accused, through his commanding officer, to be at the prescribed location in appropriate uniform at the time set for the initial session.

(3) Notify all witnesses who you intend to call to be ready to appear at the place of trial upon further notification by you. For planning purposes, you should notify the witnesses of a tentative time and date at which they may be required to appear. However, if the accused should plead guilty to the charges, you may have no need to call the witnesses. Furthermore, if the accused requests additional witnesses to testify in his behalf or if he is granted a continuance to obtain additional evidence, the date on which the witnesses will be called to testify in his behalf or if he is granted a continuance to obtain additional evidence, the date on which the witnesses will be called to testify may have to be postponed. By alerting the witnesses to be ready to appear, if needed, but by not requiring their appearance until you notify them, you permit them to continue to perform their regular duties without interruption and without requiring them to appear needlessly.

(e) Procedure for the summary court.

(1) The SCM should determine the order in which the witnesses are to be called. Witnesses for the State should be called first, normally in an order which will permit the facts of the case to be presented, as nearly as possible, in a chronological manner.

(2) The SCM should not take the testimony of any witness by telephone at the trial without the accused's consent. However, if in preparing the case or during the trial, the SCM feels a need to make further inquiry he may communicate by telephone or otherwise with prospective witnesses or others, except the accused, for the purpose of determining the extent of their knowledge concerning the case. The SCM must not consider such an out-of-court statement as evidence in the case unless it becomes the subject of a stipulation of fact or testimony to which the accused specifically and knowledgeably consents.

(3) Determine the admissibility and authentication of any documentary evidence. Assign exhibit numbers to all documentary evidence and any real evidence (physical objects) in the order in which the SCM intends to use them at trial. When the SCM actually receives (admits) an exhibit in evidence at the trial, mark it "Received in Evidence," followed by your initials.

(4) Again, utilize the Guide for Summary Courts-Martial (Appendix L-2) and DA Pam 27-7.

Notes

N.Y. Comp. Codes R. & Regs. Tit. 9 § 515.8