N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.7 - Pretrial matters
Except as otherwise provided in paragraph (6) and subparagraph (7)(ii) of this subdivision, the trial counsel must provide the following information or matters to the defense.
Except as otherwise provided in paragraph (6) and subparagraph (7)(ii) of this subdivision, the defense must provide the following information to the trial counsel:
The fact that a witness' name is on a list of expected or intended witnesses provided to an opposing party, whether required by this subdivision or not, is not ground for comment upon a failure to call the witness.
If, before or during the court-martial, a party discovers additional evidence or material previously requested or required to be produced, which is subject to discovery or inspection under this subdivision, that party must promptly notify the other party or the military judge of the existence of the additional evidence or material.
Each party must have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence. No party may unreasonably impede the access of another party to a witness or evidence.
Nothing in this subdivision is to be construed to require the disclosure of information protected from disclosure by the Military Rules of Evidence. Nothing in this rule requires the disclosure or production of notes, memoranda, or similar working papers prepared by counsel and counsel's assistants and representatives.
This subdivision does not limit the right of the accused to testify in the accused's behalf.
As used in this subdivision inspect includes the right to photograph and copy.
A deposition may be ordered whenever, after preferral of charges, due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at an investigation under 130.32, ML or a court-martial (See 130.49, ML).
A convening authority who has the charges for disposition or, after referral, the convening authority or the military judge may order that a deposition be taken on request of a party.
The party at whose request a deposition is to be taken must give to every other party reasonable written notice of the time and place for taking the deposition and the name and address of each person to be examined. On motion of a party upon whom the notice is served the deposition officer may, for cause shown, extend or shorten the time or change the place for taking the deposition, consistent with any instructions from the convening authority.
In accordance with this subdivision, and subject to any instructions under subparagraph (4)(iii) of this subdivision, the deposition officer must:
The prosecution and defense and the court-martial are to have equal opportunity to obtain witnesses and evidence, including the benefit of compulsory process. Compulsory process runs to any part of the State and to any other state in which the court-martial may be sitting (see 130.46, ML). Military courts are empowered to issue all process and mandates necessary and proper to carry into full force and effect the powers vested in them (ML, 131.7[a]).
When the employment at State expense of an expert is considered necessary by a party, the party must, in advance of employment of the expert, and with notice to the opposing part, submit a request to the Adjutant General of the State to authorize the employment and to fix the compensation for the expert. The request must include a complete statement of reasons why employment of the expert is necessary and the estimated cost of employment. A request denied by the Adjutant General of the State may be renewed before the military judge who must determine whether the testimony of the expert is relevant and necessary, and if so, whether the State has provided or will provide an adequate substitute. If the military judge grants a motion for employment of an expert or finds that the State is required to provide a substitute, the proceedings will be abated if the State fails to comply with the ruling. In the absence of advance authorization, an expert witness may not be paid fees other than those to which entitled under clause (5)(ii)( d) of this subdivision.
Nothing in this subdivision bars:
Only a general court-martial convening authority may grant immunity, and may do so only in accordance with this subdivision.
A grant of immunity must be written and signed by the convening authority who issues it. The grant must include a statement of the authority under which it is made and must identify the matters to which it extends.
Unless limited by superior competent authority, the decision whether to grant immunity is a matter within the sole discretion of the appropriate general court-martial convening authority However, if a defense request to immunize a witness has been denied, the military judge may, upon motion by the defense, grant appropriate relief directing that either an appropriate convening authority grant testimonial immunity to a defense witness or, as to the affected charges and specifications, the proceedings against the accused be abated, upon findings that:
Subject to such limitations as the Chief of Staff to the Governor may prescribe, an accused and the convening authority may enter into a pretrial agreement in accordance with this subdivision.
A pretrial agreement may include:
Except in a special court-martial without a military judge, no member of a court-martial is to be informed of the existence of a pretrial agreement. In addition, except as provided in Mil. R. Evid. 410, the fact that an accused offered to enter into a pretrial agreement, and any statements made by an accused in connection therewith, whether during negotiations or during a providence inquiry, must not be otherwise disclosed to the members.
If it appears to any commander who considers the disposition of charges, or to any investigating officer, trial counsel, defense counsel, military judge, or member that there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial, that fact and the basis of the belief or observation must be transmitted through appropriate channels to the officer authorized to order an inquiry into the mental condition of the accused. The submission may be accompanied by an application for a mental examination under this subdivision.
Other appropriate questions may also be included.
The accused shall be brought to trial within 120 days after notice to the accused of preferral of charges under N.Y.R.C.M. 308 or the imposition of restraint under N.Y.R.C.M. 304, whichever is earlier.
The following periods are to be excluded when determining whether the period in paragraph (1) of this subdivision has run:
When the accused is in pretrial arrest or confinement under N.Y.R.C.M. 304 or 305, immediate steps shall be taken to bring the accused to trial (ML, 130.10). No accused is to be held in pretrial arrest of confinement in excess of 90 days for the same or related charges. Except for any periods under subparagraph (3)(vii) of this subdivision, the periods described in paragraph (3) of this subdivision are to be excluded for the purpose of computing when 90 days has run. The military judge may, upon a showing of extraordinary circumstances, extend the period by 10 days.
Failure to comply with this subdivision results in dismissal of the affected charges upon timely motion by the accused.
Notes
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