N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.4 - Forwarding and disposition of charges
(a) Forwarding and disposition of charges in
general.
(1) Who may dispose of charges. Only
persons authorized to convene courts-martial or to administer nonjudicial
punishment under 130.15, ML may dispose of charges. A superior competent
authority may withhold the authority of a subordinate to dispose of charges in
individual cases, types of cases, or generally.
(2) Prompt determination. When a commander
with authority to dispose of charges receives charges, that commander must
promptly determine what disposition will be made in the interest of justice and
discipline.
(3) How charges may be
disposed of. Unless the authority to do so has been limited or withheld by
superior competent authority, a commander may dispose of charges by dismissing
any or all of them, forwarding any of all of them to another commander for
disposition, or referring any or all of them to a court-martial which the
commander is empowered to convene. Charges should be disposed of in accordance
with the policy in N.Y.R.C.M. 306(b).
(i)
Dismissal. When a commander dismisses charges, further disposition under
N.Y.R.C.M. 306(c) of the offenses is not barred.
(ii) Forwarding charges.
(a) Forwarding to a superior commander. When
charges are forwarded to a superior commander for disposition, the forwarding
commander must make a personal recommendation as to disposition. If the
forwarding commander is disqualified from acting as convening authority in the
case, the basis for the disqualification must be noted.
(b) Other cases. When charges are forwarded
to a commander who is not a superior of the forwarding commander, no
recommendation as to disposition may be made.
(c) Forwarding charges against person held
for trial by general court-martial. When a person is held for trial by general
court-martial, the commanding officer must, within eight days after the accused
is ordered into arrest or confinement, if practicable, forward through channels
the charges, together with the investigation and allied papers, to the general
court-martial convening authority. If the same is not practicable, he must
report in writing to that authority the reasons for delay (ML,
130.33).
(iii) Referral
of charges (see N.Y.R.C.M. 403, 404, 407, 601).
(b) Action by commander not authorized to
convene courts-martial. When in receipt of charges, a commander authorized to
administer non-judicial punishment but not authorized to convene courts-martial
may:
(1) dismiss any charges; or
(2) forward them to a superior commander for
disposition.
(c) Action
by commander exercising summary court-martial jurisdiction.
(1) Recording receipt. Immediately upon
receipt of sworn charges, an officer exercising summary court- martial
jurisdiction over the command shall cause the hour and date of receipt to be
entered on the charge sheet.
(2)
Disposition. When in receipt of charges a commander exercising summary court-
martial jurisdiction may:
(i) dismiss any
charges; or
(ii) forward charges
(or, after dismissing charges, the matter) to a subordinate commander for
disposition; or
(iii) forward any
charges to a superior commander for disposition; or
(iv) subject to N.Y.R.C.M. 601(d), refer
charges to a summary court-martial for trial; or
(v) unless otherwise prescribed by the Chief
of Staff to the Governor, direct a pretrial investigation under N.Y.R.C.M. 405,
and, if appropriate, forward the report of investigation with the charges to a
superior commander for disposition.
(d) Action by commander exercising special
court-martial jurisdiction. When in receipt of charges, a commander exercising
special court-martial jurisdiction may:
(1)
dismiss any charges; or
(2) forward
charges (or, after dismissing charges, the matter) to a subordinate commander
for disposition; or
(3) forward any
charges to a superior commander for disposition; or
(4) subject to N.Y.R.C.M. 601(d), refer
charges to a summary court-martial or to a special court-martial for trial;
or
(5) unless otherwise prescribed
by the Chief of Staff to the Governor, direct a pretrial investigation under
N.Y.R.C.M. 405, and, if appropriate, forward the report of investigation with
the charges to a superior commander for disposition.
(e) Pretrial investigation.
(1) In general. Except as provided in
paragraph (11) of this subdivision, no charge or specification may be referred
to a general court-martial for trial until a thorough and impartial
investigation of all the matters set forth therein has been made in substantial
compliance with this subdivision. Failure to comply with this subdivision has
no effect if the charges are not referred to a general court-martial (ML,
130.23[a]).
(2) Earlier
investigation. If an investigation of the subject matter of an offense has been
conducted before the accused is charged with an offense, and the accused was
present at the investigation and afforded the rights to counsel,
cross-examination, and presentation of evidence required by this subdivision,
no further investigation is required unless demanded by the accused to recall
witnesses for further cross-examination and to offer new evidence (ML,
130.32[c]).
(3) Who may direct
investigation. An investigation may be directed under this subdivision by any
court-martial convening authority. The Chief of Staff to the Governor may also
give procedural instructions not inconsistent with these rules.
(4) Personnel.
(i) Investigating officer. The commander
directing an investigation under this subdivision must detail an officer, not
the accuser, as investigating officer, who must conduct the investigation and
make a report of conclusions and recommendations. The investigating officer is
disqualified to act later in the case in any other capacity.
(ii) Defense counsel.
(a) Detailed counsel. Except as provided in
clause (b) of this subparagraph, military counsel appointed by the Chief of
Staff to the Governor who is a member of the Bar of the State of New York must
be detailed to represent the accused.
(b) Individual military counsel. The accused
may request to be represented by individual military counsel. Such request are
to be acted on in accordance with N.Y.R.C.M. 506(b). When the accused is
represented by individual military counsel, counsel detailed to represent the
accused is excused, unless the authority who detailed the defense counsel, as a
matter of discretion, approves a request by the accused for retention of
detailed counsel. The investigating officer must forward any request by the
accused for individual investigation. That commander shall follow the
procedures in N.Y.R.C.M. 506(b).
(c) Civilian counsel. The accused may be
represented by a civilian counsel at no expense to the State. Upon request, the
accused is entitled to reasonable time to obtain civilian counsel and to have
such counsel present for the investigation. However, the investigation must not
be unduly delayed for this purpose. Representation by civilian counsel must not
limit the rights to military counsel under clauses (a) and (b) of this
subparagraph.
(iii)
Others. The commander who directed the investigation may also, as a matter of
discretion, detail or request an appropriate authority to detail:
(a) counsel to represent the State;
and
(b) a reporter; and
(c) an interpreter.
(5) Scope of investigation. The
investigating officer must inquire into the truth and form of the charges, and
such other matters as may be necessary to make a recommendation as to the
disposition of the charges.
(6)
Rights of the accused. At any pretrial investigation under this subdivision the
accused has the right to:
(i) be informed of
the charges under investigation;
(ii) be informed of the identity of the
accuser;
(iii) except in
circumstances described in N.Y.R.C.M. 804(b)(2), be present throughout the
taking of evidence;
(iv) be
represented by counsel;
(v) be
informed of the witnesses and other evidence then known to the investigating
officer;
(vi) be informed of the
purpose of the investigation;
(vii)
be informed of the right against self-incrimination under ML, 130.31;
(viii) cross-examine witnesses who are
produced under paragraph (7) of this subdivision;
(ix) have witnesses produced as provided for
in paragraph (7) of this subdivision;
(x) have evidence, including documents or
physical evidence, within the control of military authorities produced as
provided under paragraph (7) of this subdivision;
(xi) present anything in defense,
extenuation, or mitigation for consideration by the investigating officer;
and
(xii) make a statement in any
form.
(7) Production of
witnesses and evidence; alternatives.
(i) In
general.
(a) Witnesses. Except as provided in
clause (iv)(a) of this paragraph, any witness whose testimony would be relevant
to the investigation and not cumulative, must be produced if reasonably
available. This includes witnesses requested by the accused, if the request is
timely. A witness is "reasonably available" when the significance of the
testimony and personal appearance of the witness outweighs the difficulty,
expense, delay, and effect on military operations of obtaining the witness'
appearance. A witness who is unavailable under Mil. R. Evid., 804(a)(1) through
(6), is "not reasonably" available.
(b) Evidence. Subject to Mil. R. Evid.,
section V, evidence, including documents or physical evidence, which is under
the control of the State and which is relevant to the investigation and not
cumulative must be produced if reasonably available. Such evidence includes
evidence requested by the accused, if the request is timely. Evidence is
reasonably available if its significance outweighs the difficulty, expense,
delay, and effect on military operations of obtaining the evidence.
(ii) Determination of reasonable
availability.
(a) Military witnesses. The
investigating officer must make an initial determination whether a military
witness is reasonably available. If the investigating officer decides that the
witness is not reasonably available, the investigating officer must inform the
parties. Otherwise, the immediate commander of the witness must be requested to
make the witness available. A determination by the immediate commander that the
witness is not reasonably available is not subject to appeal by the accused but
may be reviewed by the military judge under N.Y.R.C.M. 906(b)(3).
(b) Civilian witnesses. The investigating
officer must decide whether a civilian witness is reasonably available to
appear as a witness.
(c) Evidence.
The investigating officer must make an initial determination whether evidence
is reasonably available. If the investigating officer decides that it is not
reasonably available, the investigating officer must so inform the parties.
Otherwise, the custodian of the evidence must be requested to provide the
evidence. A determination by the custodian that the evidence is not reasonably
available is not subject to appeal by the accused, but may be reviewed by the
military judge under N.Y.R.C.M. 906(b)(3).
(d) Action when witness or evidence is not
reasonably available. If the defense objects to a determination that a witness
or evidence is not reasonably available, the investigating officer must include
a statement of the reasons for the determination in the report of
investigation.
(iii)
Witness expenses. Transportation expenses and a per diem allowance may be paid
to civilians requested to testify in connection with an investigation under
this subdivision.
(iv) Alternatives
to testimony.
(a) Unless the defense objects,
an investigating officer may consider, regardless of the availability of the
witness:
(1) sworn statements;
(2) statements under oath taken by telephone,
radio, or similar means providing each party the opportunity to question the
witness under circumstances by which the investigating officer may reasonably
conclude that the witness' identity is as claimed;
(3) prior testimony under oath;
(4) depositions;
(5) stipulations of fact or expected
testimony;
(6) unsworn statements;
and
(7) offers of proof of expected
testimony of that witness.
(b) The investigating officer may consider,
over objection of the defense, when the witness is not reasonably available:
(1) sworn statements;
(2) statements under oath taken by telephone,
radio, or similar means providing each party the opportunity to question the
witness under circumstances by which the investigating officer may reasonably
conclude that the witness' identity is as claimed;
(3) prior testimony under oath; and
(4) depositions of that witness.
(v) Alternatives to
evidence.
(a) Unless the defense objects, an
investigating officer may consider, regardless of the availability of the
evidence:
(1) testimony describing the
evidence;
(2) an authenticated
copy, photograph, or reproduction of similar accuracy of the
evidence;
(3) an alternative to
testimony, when permitted under clause (iv)(b) of this paragraph, in which the
evidence is described;
(4) a
stipulation of fact, document's contents, or expected testimony;
(5) an unsworn statement describing the
evidence; or
(6) an offer of proof
concerning pertinent characteristics of the evidence.
(b) The investigating officer may consider,
over objection of the defense, when the evidence is not reasonably available:
(1) testimony describing the
evidence;
(2) an authenticated
copy, photograph, or reproduction of similar accuracy of the evidence;
or
(3) an alternative to testimony,
when permitted under clause (iv)(b) of this paragraph, in which the evidence is
described.
(8) Procedure.
(i) Presentation of evidence.
(a) Testimony. All testimony is to be taken
under oath, except that the accused may make an unsworn statement. The defense
is to be given wide latitude in cross-examining witnesses.
(b) Other evidence. The investigating officer
must inform the parties what other evidence will be considered. The parties
must be permitted to examine all other evidence considered by the investigating
officer (ML, 130.32[b]).
(c)
Defense evidence. The defense has full opportunity to present any matters in
defense, extenuation, or mitigation (ML, 130.32[b]).
(ii) Objections. Any objection alleging
failure to comply with this subdivision, except paragraph (10) of this
subdivision, must be made to the investigating officer promptly upon discovery
of the alleged error. The investigating officer cannot rule on any objection.
An objection is to be noted in the report of investigation if a party so
requests. The investigating officer may require a party to file any objection
in writing.
(iii) Access by
spectators. Access by spectators to all or part of the proceeding may be
restricted or foreclosed in the discretion of the commander who directed the
investigation or by the investigating officer.
(iv) Presence of accused. The further
progress of the taking of evidence must not be prevented and the accused must
be considered to have waived the right to be present, whenever the accused:
(a) after being notified of the time and
place of the proceeding is voluntarily absent (whether or not informed by the
investigating officer of the obligation to be present); or
(b) after being warned by the investigating
officer that disruptive conduct will cause removal from the proceeding,
persists in conduct which is such as to justify exclusion from the
proceeding.
(9) Military Rules of Evidence. The Military
Rules of Evidence--other than Mil. R. Evid. 301, 302, 303, 305, and section
V--do not apply in pretrial investigations under this subdivision.
(10) Report of investigation.
(i) In general. The investigating officer
must make a timely written report of the investigation to the commander who
directed the investigation.
(ii)
Contents. The report of investigation must include:
(a) a statement of names and organizations or
addresses of defense counsel and whether defense counsel was present throughout
the taking of evidence, or if not present the reason why;
(b) the substance of the testimony taken on
both sides, including any stipulated testimony (ML, 130.32[b]);
(c) any other statements, documents, or
matters considered by the investigating officer, or recitals of the substance
or nature of such evidence; and
(d)
a statement of any reasonable grounds for belief that the accused was not
mentally responsible for the offense or was not competent to participate in the
defense during the investigation.
(iii) Distribution of the report. The
investigating officer must cause the report to be delivered to the commander
who directed the investigation. That commander must promptly cause a copy of
the report to be delivered to each accused.
(iv) Objections. Any objection to the report
must be made to the commander who directed the investigation within five days
of its receipt by the accused. This paragraph does not prohibit a convening
authority from referring the charges or taking other action within the five-day
period.
(11) Waiver. The
accused may waive an investigation under this subdivision. Such waiver must be
in writing. In addition, failure to make a timely objection under this
subdivision, including an objection to the report, constitutes waiver of the
objection. Relief from the waiver may be granted by the investigating officer,
the commander who directed the investigation, the convening authority, or the
military judge, as appropriate, for good cause shown.
(f) Pretrial advice.
(1) In general. Before any charge may be
referred for trial by a general court-martial, it must be referred to the staff
judge advocate of the convening authority for consideration and advice (ML,
130.34[a]).
(2) Contents. The
advice of the staff judge advocate must include a written and signed statement
which sets forth that person's:
(i) conclusion
with respect to whether each specification alleges an offense under the
code;
(ii) conclusion with respect
to whether the allegation of each offense is warranted by the evidence
indicated in the report of investigation (if there is such a report);
(iii) conclusion with respect to whether a
court-martial would have jurisdiction over the accused and the offense;
and
(iv) recommendation of the
action to be taken by the convening authority.
(3) Distribution. A copy of the advice of the
staff judge advocate must be provided to the defense if charges are referred to
trial by general court-martial.
(g) Action by commander exercising general
court-martial jurisdiction.
(1) Disposition.
When in receipt of charges, a commander exercising general court-martial
jurisdiction may:
(i) dismiss any
charges;
(ii) forward charges (or,
after dismissing charges, the matter) to a subordinate commander for
disposition;
(iii) forward any
charges to a superior commander for disposition;
(iv) refer charges to a summary court-martial
or a special court-martial for trial;
(v) unless otherwise prescribed by the Chief
of Staff to the Governor, direct a pretrial investigation under N.Y.R.C.M. 405,
after which additional action under this subdivision may be taken; or
(vi) subject to N.Y.R.C.M. 601(d), refer
charges to a general court-martial.
Notes
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