N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.6 - Referral, service, amendment and withdrawal of charges
(a) Referral.
(1) In general. Referral is an order of a
convening authority that charges against an accused will be tried by a
specified court-martial.
(2) Who
may refer. Any convening authority may refer charges to a court-martial
convened by that convening authority or a predecessor, unless the power to do
so has been withheld by superior competent authority.
(3) Disqualification. An accuser may not
refer charges to a general or special court-martial.
(4) When charges may be referred.
(i) Basis for referral. If the convening
authority finds or is advised by a judge advocate that there are reasonable
grounds to believe that an offense triable by a court-martial has been
committed and that the accused committed it, and that the specification alleges
an offense, the convening authority may refer it. The finding may be based on
hearsay in whole or in part. The convening authority or judge advocate may
consider information from any source and is not limited to the information
reviewed by any previous authority, but a case may not be referred to a general
court-martial except in compliance with subparagraph (ii) of this paragraph.
The convening authority or judge advocate is not required before charges are
referred to resolve legal issues, including objections to evidence, which may
arise at trial.
(ii) General
courts-martial. The convening authority may not refer a specification under a
charge to a general court-martial unless:
(a)
there has been substantial compliance with the pretrial investigation
requirements of N.Y.R.C.M. 405; and
(b) the convening authority has received the
advice of the staff judge advocate required under N.Y.R.C.M. 406.
These requirements may be waived by the accused.
(5) How
charges are referred.
(i) Order,
instructions. Referral is made by the personal order of the convening
authority. The convening authority may include proper instructions in the
order.
(ii) Joinder of offenses. In
the discretion of the convening authority, two or more offenses charged against
an accused may be referred to the same court-martial for trial, whether serious
or minor offenses or both, regardless whether related. Additional charges may
be joined with other charges for a single trial at any time before arraignment
if all necessary procedural requirements concerning the additional charges have
been compiled with. After arraignment of the accused upon charges, no
additional charges may be referred to the same trial without consent of the
accused.
(iii) Joinder of accused.
Allegations against two or more accused may be referred for joint trial if the
accused are alleged to have participated in the same act or transaction or in
the same series of acts; or transactions constituting an offense or offenses.
Such accused may be charged in one or more specifications together or
separately, and every accused need not be charged in each specification.
Related allegations against two or more accused which may be proved by
substantially the same evidence may be referred to a common trial.
(6) Superior convening
authorities. Except as otherwise provided in these rules, a superior competent
authority may cause charges, whether or not referred, to be transmitted to that
authority for further consideration, including, if appropriate,
referral.
(b) Service of
charges. The trial counsel detailed to the court-martial to which charges have
been referred for trial must cause to be served upon each accused a copy of the
charge sheet. In time or peace, no person may, over objection, be brought to
trial, including a session under ML, 130.39(a) before a general court-martial
within a period of five days after service of charges, or before a special
court-martial within a period of three days after service of charges. In
computing these periods, the date of service of charges and the date of trial
are excluded; holidays and Sundays are included (ML, 130.35).
(c) Changes to charges and specifications.
(1) Minor changes defined. Minor changes in
charges and specifications are any except those which add a party, offense, or
substantial matter not fairly included in those previously preferred, or which
are likely to mislead the accused as to the offenses charged.
(2) Minor changes before arraignment. Any
person forwarding, acting upon, or prosecuting charges on behalf of the State
except an investigation officer appointed under N.Y.R.C.M. 405 may make minor
changes to charges or specifications before arraignment.
(3) Minor changes after arraignment. After
arraignment the military judge may, upon motion, permit minor changes in the
charges and specifications at any time before findings are announced if no
substantial right of the accused is prejudiced.
(4) Major changes. Changes or amendments to
charges or specifications other than minor changes may not be made over the
objection of the accused unless the charge or specification affected is
preferred anew.
(d)
Withdrawal of charges.
(1) Withdrawal. The
convening authority or a superior competent authority may for any reason proper
cause any charges or specifications to be withdrawn from a court-martial at any
time before findings are announced.
(2) Referral of withdrawn charges. Charges
which have been withdrawn from a court-martial may be referred to another
court-martial unless the withdrawal was for an improper reason. Charges
withdrawn after the introduction of evidence on the general issue of guilt may
be referred to another court-martial only if the withdrawal was necessitated by
urgent and unforeseen military necessity.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.