N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.8 - Trial procedure generally
(a)
Military judge's responsibilities; other matters.
(1) Responsibilities of military judge. The
military judge is the presiding officer in a court-martial (ML, 130.26[a]). The
military judge must:
(i) determine the time
and uniform for each session of a court-martial;
(ii) ensure that the dignity and decorum of
the proceedings are maintained;
(iii) subject to the code and this Chapter,
exercise reasonable control over the proceedings to promote the purposes of
these rules and this Chapter;
(iv)
subject to paragraph (5) of this subdivision, rule on all interlocutory
questions and all questions of law raised during the court-martial;
and
(v) instruct the members on
questions of law and procedure which may arise.
(2) Rules of court; contempt. The military
judge may:
(i) subject to N.Y.R.C.M. 108,
promulgate and enforce rules of court; and
(ii) subject to N.Y.R.C.M. 809, exercise
contempt power.
(3)
Obtaining evidence. The court-martial may act to obtain evidence in addition to
that presented by the parties. The right of the members to have additional
evidence obtained is subject to an interlocutory ruling by the military
judge.
(4) Uncharged offenses. If
during the trial there is evidence that the accused may be guilty of an untried
offense not alleged in any specification before the court-martial, the
court-martial must proceed with the trial of the offense charged.
(5) Interlocutory questions and questions of
law. For purposes of this paragraph "military judge" does not include the
president of a special court-martial without a military judge.
(i) Rulings by the military judge.
(a) Finality of rulings. Any ruling by the
military judge upon a question of law, including a motion for a finding of not
guilty, or upon any interlocutory question is final.
(b) Changing a ruling. The military judge may
change a ruling made by that or another military judge in the case except a
previously granted motion for a finding of not guilty, at any time during the
trial.
(c) Sessions under ML,
130.39(a). When required by this Chapter or otherwise deemed appropriate by the
military judge, interlocutory questions or questions of law must be presented
and decided at sessions held without members under N.Y.R.C.M. 803.
(ii) Rulings by the president of a
special court-martial without a military judge.
(a) Questions of law. Any ruling by the
president of a special court-martial without a military judge on any question
of law other than a motion for a finding of not guilty is final.
(b) Questions of fact. Any ruling by the
president of a special court-martial without a military judge on any
interlocutory question of fact, including a factual issue of mental capacity of
the accused, or on a motion for a finding of not guilty, is final unless
objected to by a member.
(c)
Changing a ruling. The president of a special court-martial without a military
judge may change a ruling made by that or another president in the case except
a previously granted motion for a finding of not guilty, at any time during the
trial.
(d) Presence of members.
Except as provided in N.Y.R.C.M. 505 and 911, all members will be present at
all sessions of a special court-martial without military judge, including
sessions at which questions of law or interlocutory questions are litigated.
However, the president of a special court-martial without a military judge may
examine an offered item of real or documentary evidence before ruling on its
admissibility without exposing it to other members.
(iii) Procedures for rulings by the president
of a special court-martial without a military judge which are subject to
objection by a member.
(a) Determination. The
president of a special court-martial without a military judge determines
whether a ruling is subject to objection.
(b) Instructions. When a ruling by the
president of a special court-martial without a military judge which is subject
to objection, the president is to so advise the members and must give such
instructions on the issue as may be necessary to enable the members to
understand the issue and the legal standards by which they will determine it if
objection is made.
(c) Voting. When
a member objects to a ruling by the president of a special court-martial
without a military judge which is subject to objection, the court-martial must
be closed, and the members must vote orally, beginning with the junior in rank,
and the question must be decided by a majority vote. A tie vote on a motion for
a finding of not guilty is a determination against the accused. A tie vote on
any other question is a determination in favor of the accused.
(d) Consultation. The president of a special
court-martial without a military judge may close the court-martial and consult
with other members before ruling on a matter, when such ruling is subject to
the objection of any member.
(iv) Standard of proof. Questions of fact in
an interlocutory question are to be determined by a preponderance of the
evidence, unless otherwise stated in this Chapter. In the absence of a
subdivision in this Chapter assigning the burden of persuasion, the party
making the motion or raising the objection bears the burden of
persuasion.
(v) Scope. This
paragraph applies to the disposition of questions of law and interlocutory
questions arising during trial except the question whether a challenge should
be sustained.
(6)
Rulings on record. All sessions involving rulings or instructions made or given
by the military judge or the president of a special court-martial without a
military judge are to be made a part of the record. All rulings and
instructions are to be made or given in open session in the presence of the
parties and the members, except as otherwise may be determined in the
discretion of the military judge. For purposes of this paragraph, "military
judge" does not include the president of a special court-martial without a
military judge.
(7) Effect of
failure to raise defenses or objections. Failure by a party to raise defenses
or objections or to make requests or motions which must be made at the time set
by this Chapter or by the military judge under authority or this Chapter, or
prior to any extension thereof made by the military judge constitutes waiver
thereof, but the military judge for good cause shown may grant relief from the
waiver.
(b) Conferences.
(1) In general. After referral, the military
judge may, upon request of any party or sua sponte, order one or more
conferences with the parties to consider such matters as will promote a fair
and expeditious trial.
(2) Matters
on record. Conferences need not be made part of the record, but matters agreed
upon at a conference are to be included in the record orally or in writing.
Failure of a party to object at trial to failure to comply with this paragraph
waives this requirement.
(3) Rights
of parties. A conference cannot proceed over the objection of any party. No
party may be prevented under this rule from presenting evidence or from making
any argument, objection, or motion at trial.
(4) Accused's presence. The presence of the
accused is neither required nor prohibited at a conference.
(5) Admission. No admissions made by the
accused or defense counsel at a conference are to be used against the accused
unless the admissions are reduced to writing and signed by the accused and
defense counsel.
(6) Limitations.
This subdivision cannot be invoked in the case of an accused who is not
represented by counsel, or in special courts-martial without a military
judge.
(c) Court-martial
sessions without members under 130.39(a), ML. A military judge who has been
detailed to the court-martial may, under 130.39(a), ML, after service of
charges, call the court-martial into session without the presence of members.
Such sessions may be held before and after assembly of the court-martial, and
when authorized in these rules, after adjournment and before action by the
convening authority. All such sessions are a part of the trial and must be
conducted in the presence of the accused, defense counsel, and trial counsel,
in accordance with N.Y.R.C.M 804 and 805, and must be made a part of the
record. For purposes of this rule "military judge" does not include the
president of a special court-martial without a military judge.
(d) Presence of the accused at trial
proceedings.
(1) Presence required. The
accused shall be present at the arraignment, the time of the plea, every stage
of the trial including sessions conducted under 130.39(a), ML, voir dire and
challenges of members, the return of the findings, sentencing proceedings, and
post-trial sessions, if any, except as otherwise provided by this
subdivision.
(2) Continued presence
not required. The further progress of the trial to and including the return of
the findings and, if necessary, determination of a sentence cannot be prevented
and the accused must be considered to have waived the right to be present
whenever an accused, initially present:
(i)
is voluntarily absent after arraignment (where informed by the military judge
of the obligation to remain during the trial); or
(ii) after being warned by the military judge
that disruptive conduct will cause the accused to be removed from the
courtroom, persists in conduct which is such as to justify exclusion from the
courtroom.
(3) Persons
charged with absence without leave under 130.82, ML. The presence of the
accused at any time described in paragraph (1) of this subdivision is not
required at a special court-martial empowered to adjudge a bad conduct
discharge where, and the accused must be considered to have waived the right to
be present at such court-martial if such court-martial obtains in personam
jurisdiction over him by any method of personal service described in 130.3(d),
ML; provided that a warning accompanies the charge sheet in substantially the
following format:
"WARNING: You have a right to be present at your court-martial. In the event you fail to appear, the court-martial may proceed in your absence."
(4)
Appearance and security of accused.
(i)
Appearance. The accused must be properly attired in the uniform or dress
prescribed by the military judge. An accused service member must wear the
insignia of grade and may wear any decorations, emblems, or ribbons to which
entitled. The accused and defense counsel are responsible for ensuring that the
accused is properly attired; however, upon request, the accused's commander is
to render such assistance as may be reasonably necessary to ensure that the
accused is properly attired.
(ii)
Custody. Responsibility for maintaining custody or control of an accused before
and during trial may be assigned, subject to N.Y.R.C.M. 304 and 305, and
subparagraph (iii) of this paragraph.
(iii) Restraint. Physical restraint cannot be
imposed on the accused during open sessions of the court-martial unless
prescribed by the military judge.
(e) Presence of military judge, members, and
counsel.
(1) Military judge. No court-
martial proceeding, except the deliberations of the members, may take place in
the absence of the military judge, if detailed (ML, 130.26[a]).
(2) Members. Unless trial is by military
judge alone pursuant to a request by the accused, no court-martial proceeding
may take place in the absence of any detailed member except: sessions under ML,
130.39(a) under N.Y.R.C.M. 803; examination of members under N.Y.R.C.M. 910(d);
when the member has been excused under N.Y.R.C.M. 505 or 910(f); or as
otherwise provided in N.Y.R.C.M. 1102 (See ML, 130.29[a]). No general
court-martial proceeding requiring the presence of members may be conducted
unless at least 5 members are present and, except as provided in N.Y.R.C.M.
910(h), no special court-martial proceeding requiring the presence of members
may be conducted unless at least three members are present (ML, 130.29[b] and
[c]). Except as provided in N.Y.R.C.M. 503(b), when an enlisted accused has
requested enlisted members, no proceeding requiring the presence of members may
be conducted unless at least one-third of the members actually sitting on the
court-martial are enlisted persons (ML, 130.25[c][1]).
(3) Counsel. As long as at least one
qualified counsel for each party is present, other counsel for each party may
be absent from a court-martial session. An assistant counsel who lacks the
qualifications necessary to serve as counsel for a party may not act at a
session in the absence of such qualified counsel.
(4) Effect of replacement of member or
military judge.
(i) Members. When after the
presentation of evidence on the merits has begun, a new member is detailed
under N.Y.R.C.M. 505(c)(2)(B), trial may not proceed unless the testimony and
evidence previously admitted on the merits, if recorded verbatim, is read to
the new member in the presence of the military judge, the accused, and counsel
for both sides; or, if not recorded verbatim, and in the absence of a
stipulation as to such testimony and evidence, the trial proceeds as if no
evidence has been presented (ML, 130.29[b] and [c]).
(ii) Military judge. When, after the
presentation of evidence on the merits has begun in trial before military judge
alone, a new military judge is detailed under N.Y.R.C.M. 505(e)(2) trial may
not proceed unless the accused requests, and the military judge approves, trial
by military judge alone, and a verbatim record of the testimony and evidence or
a stipulation thereof is read to the military judge in the presence of the new
military judge, the accused, and counsel for both sides; or the trial proceeds
as if no evidence has been presented (ML, 130.29[d]).
(f) Public trial.
(1) In general. Except as otherwise provided
in this subdivision, courts-martial are open to the public. For purposes of
this subdivision, public includes members of both the military and civilian
communities.
(2) Control of
spectators. In order to maintain the dignity and decorum of the proceedings or
for other good cause, the military judge may reasonably limit the number of
spectators in, and the means of access to, the courtroom, exclude specific
persons from the courtroom, and close a session; however, a session may be
closed over the objection of the accused only when expressly authorized by
another provision of this Chapter.
(3) Photography and broadcasting prohibited.
Video and audio recording and the taking of photographs -- except for the
purpose of preparing the record of trial -- in the courtroom during the
proceedings and radio or television broadcasting of proceedings from the
courtroom shall not be permitted. However, the military judge may, as a matter
of discretion permit contemporaneous closed-circuit video or audio transmission
to permit viewing or hearing by an accused removed under N.Y.R.C.M. 804 or by
spectators when courtroom facilities are inadequate to accommodate a reasonable
number of spectators.
(g) Oaths.
(1) Definition. Oath includes
"affirmation".
(2) Oaths in
court-martial.
(i) Who must be sworn.
(a) Court-martial personnel. The military
judge, members of a general or special court-martial, trial counsel, assistant
trial counsel, defense counsel, associate defense counsel, assistant defense
counsel, reporter, interpreter, and escort must take an oath to perform their
duties faithfully (130.42[a], ML). For purposes of this subdivision, "defense
counsel", "associate defense counsel", and "assistant defense counsel" include
detailed and individual military and civilian counsel.
(b) Witnesses. Each witness before a
court-martial must be examined on oath. (ML, 130.42[b]).
(ii) Procedure for administering oaths. Any
procedure which appeals to the conscience of the person to whom the oath is
administered and which binds that person to speak the truth, or, in the case of
one other than a witness, properly to perform certain duties, is
sufficient.
(h) Record of trial. The trial counsel of a
general or special court-martial must take such action as may be necessary to
ensure that a record which will meet the requirements of N.Y.R.C.M. 1103 can be
prepared.
(i) Contempt proceedings.
(1) In general. Courts-martial may exercise
contempt power under ML, 130.48.
(2) Method of disposition.
(i) Summary disposition. When conduct
constituting con tempt is directly witnessed by the court-martial, the conduct
may be punished summarily. In such cases, the regular proceedings must be
suspended while the contempt is disposed of.
(ii) Disposition upon notice and hearing.
When the conduct apparently constituting contempt is not directly witnessed by
the court-martial, the alleged offender must be brought before the
court-martial and informed orally or in writing of the alleged contempt. The
alleged offender must be given a reasonable opportunity to present evidence,
including calling witnesses. The alleged offender must have the right to be
represented by counsel and evidence, including calling witnesses. The alleged
offender must have the right to be represented by counsel and shall be so
advised. The contempt must be proved beyond a reasonable doubt before it may be
punished.
(3) Procedure;
who may punish for contempt.
(i) Members not
present. When the conduct allegedly constituting contempt occurs during a
session when the members are not present, the military judge must determine
whether to punish for contempt, and, if so, what the punishment is to be. The
military judge may punish summarily under subparagraph (2)(i) of this
subdivision only if the military judge recited the facts for the record and
states that they were directly witnessed by the military judge in the actual
presence of the court-martial.
(ii)
Members present. When the conduct allegedly constituting contempt occurs during
a session when the members are present, contempt proceedings may be initiated
by the military judge or upon motion of any member, unless the military judge
rules that as a matter of law, contempt has not been committed. If contempt
proceedings are initiated the following procedures apply.
(a) Instructions. The military judge must
instruct the members so that they can properly decide the questions
presented.
(b) Findings. The
members must decide in a closed session, upon vote by secret written ballot
whether to hold an alleged offender in contempt. At least two-thirds of the
members must concur in a finding of contempt to convict unless that member
directly witnessed the conduct in question in the presence of the court-martial
and finds it to be contemptuous.
(c) Sentence. If the members find the
offender in contempt, they must, without reopening the court-martial, determine
the punishment in accordance with the procedures in N.Y.R.C.M. 1006.
(d) Announcement. After reaching findings,
and, if necessary, a sentence, the court-martial must be reopened and the
results announced by the president.
(4) Record; review. A record of the contempt
proceedings must be part of the record of the court-martial during which it
occurred. If the person was held in contempt, then a separate record of the
contempt proceedings must be prepared and forwarded to the convening authority
for review. The convening authority may approve or disapprove all or part of
the sentence. The action of the convening authority is not subject to further
review or appeal.
(5) Sentence. A
sentence of confinement pursuant to a finding of contempt begins to run when it
is adjudged unless deferred, suspended, or disapproved by the convening
authority. The place of confinement for a civilian or military person who is
held in contempt and is to be punished by confinement must be designated by the
convening authority. A fine does not become effective until ordered executed by
the convening authority. The military judge may delay announcing the sentence
after a finding of contempt to permit the person involved to continue to
participate in the proceedings.
(6)
Informing person held in contempt. The person held in contempt must be informed
by the convening authority in writing of the holding and sentence, if any, of
the court-martial and of the action of the convening authority upon the
sentence.
(j) Procedures
for rehearings, new trials, and other trials.
(1) In general.
(i) Rehearings in full and new or other
trials. In rehearings which require findings on all charges and specifications
referred to a court-martial and in new or other trials, the procedure is the
same as in an original trial except as otherwise provided in this
subdivision.
(ii) Rehearings on
sentence only. In a rehearing on sentence only, the procedure is the same as in
an original trial, except that the portion of the procedure which ordinarily
occurs after challenges and through and including the findings is omitted, and
except as otherwise provided in this subdivision.
(a) Contents of the record. The contents of
the record of the original trial consisting of evidence properly admitted on
the merits relating to each offense of which the accused stands convicted but
not sentenced may be established by any party whether or not testimony so read
is otherwise admissible under Mil. R. Evid. 804(b)(1) and whether or not it was
given through an interpreter.
(b)
Plea. The accused at a rehearing only on sentence may not withdraw any plea of
guilty upon which findings of guilty are based. However, if such a plea is
found to be improvident, the rehearing must be suspended and the matter
reported to the authority ordering the rehearing.
(iii) Combined rehearings. When a rehearing
on sentence is combined with a trial on the merits of one of more
specifications referred to the court-martial, whether or not such
specifications are being tried for the first time or reheard, the trial will
proceed first on the merits, without reference to the offenses being reheard on
sentence only. After findings on the merits are announced, the members, if any,
must be advised of the offenses on which the rehearing on sentence has bean
directed. Additional challenges for cause may be permitted, and the sentencing
procedure must be the same as at an original trial, except as otherwise
provided in this subdivision. A single sentence must be adjudged for all
offenses.
(2)
Composition.
(i) Members. No member of the
court-martial which previously heard the case may sit as a member of the
court-martial at any rehearing, new trial, or other trial of the same case (ML,
130.62).
(ii) Military judge. The
military judge at a rehearing may be the same military judge who presided over
a previous trial of the same case. The existence or absence of a request for
trial by military judge alone at a previous hearing has no effect on the
composition of a court-martial on rehearing.
(iii) Accused's election. The accused at a
rehearing or new or other trial has the same right to request enlisted members
or trial by military judge alone as the accused would have at an original
trial.
(3) Examination
of record of former proceedings. No member may, upon a rehearing or upon a new
or other trial, examine the record of any former proceedings in the same case
except:
(i) when permitted to do so by the
military judge after such matters have been received in evidence; or
(ii) that the president of a special
court-martial without a military judge may examine that part of the record of
former proceedings which relates to errors committed at the former proceedings
when necessary to decide the admissibility of offered evidence or other
questions of law, and such a part of the record may be read to the members when
necessary for them to consider a matter subject to objection by any
member.
(4) Sentence
limitations.
(i) In general. Except as
otherwise provided in paragraph (ii) of this paragraph, offenses on which a
rehearing, new trial, or other trial has been ordered cannot be the basis for
punishment in excess of or more severe than the legal sentence adjudged at the
previous trial or hearing, as ultimately reduced by the convening or higher
authority, unless the sentence prescribed for the offense is mandatory (ML,
130.62). When a rehearing on sentencing is combined with trial on new charges,
the maximum punishment is the maximum punishment for the offenses being reheard
as limited above plus the total maximum punishment under N.Y.R.C.M. 1003 for
any new charges of which the accused has been found guilty. In the case of an
"other trial" no sentence limitations apply if the original trial was invalid
because a summary or special court-martial improperly tried an offense
involving a mandatory punishment or one otherwise considered capital.
(ii) Pretrial agreement. If, after the
earlier court-martial, the sentence was approved in accordance with a pretrial
agreement and at the rehearing the accused fails to comply with the pretrial
agreement, by failing to enter a plea of guilty or otherwise, the sentence as
to the affected charges and specifications may include any otherwise lawful
punishment not in excess of or more severe than that lawfully adjudged at the
earlier court-martial.
(5) Definition. Other trial means another
trial of a case in which the original proceedings were declared invalid because
of lack of jurisdiction or failure of a charge to state an offense.
(k) Stipulations.
(1) In general. The parties may make an oral
or written stipulation to any fact, the contents of a document, or the expected
testimony of a witness.
(2)
Authority to reject. The military judge may, in the interest of justice,
decline to accept a stipulation.
(3) Requirements. Before accepting a
stipulation in evidence, the military judge must be satisfied that the parties
consent to its admission.
(4)
Withdrawal. A party may withdraw from an agreement to stipulate or from a
stipulation at any time before a stipulation is accepted; the stipulation may
not then be accepted. After a stipulation has been accepted a party may
withdraw from it only if permitted to do so in the discretion of the military
judge.
(5) Effect of stipulations.
Unless properly withdrawn or ordered stricken from the record, a stipulation of
fact that has been accepted is binding on the court-martial and may not be
contradicted by the parties thereto. The contents of a stipulation of expected
testimony or of a document's contents may be attacked, contradicted, or
explained in the same way as if the witness had actually so testified or the
document had been actually admitted. The fact that the parties so stipulated
does not admit the truth of the indicated testimony or document's contents, nor
does it add anything to the evidentiary nature of the testimony or document.
The Military Rules of Evidence apply to the contents of stipulation.
(6) Procedure. When offered, a written
stipulation must be presented to the military judge and must be included in the
record whether accepted or not. Once accepted, a written stipulation of
expected testimony must be read to the members, if any, but cannot be presented
to them; a written stipulation of fact or of a document's contents may be read
to the members, if any, presented to them, or both. Once accepted, an oral
stipulation must be announced to the members, if any.
(l) Joint and common trials. In joint trials
and in common trials, each accused must be accorded the rights and privileges
as if tried separately.
(m)
Announcing personnel of the court-martial and accused.
(1) Opening sessions. When the court-martial
is called to order for the first time in a case, the military judge must ensure
that the following is announced:
(i) the
order, including any amendment, by which the court-martial is
convened;
(ii) the name, rank, and
unit or address or the accused;
(iii) the name and rank of the military
judge, if one has been detailed;
(iv) the names and ranks of the members, if
any, who are present;
(v) the names
and ranks of members who are absent, if presence of members is
required;
(vi) the names and ranks
(if any) of counsel who are present; and
(vii) the names and ranks (if any) of counsel
who are absent;
(viii) the name and
rank (if any) of any detailed court reporter.
(2) Later proceedings. When the court-martial
is called to order after a recess or adjournment or after it has been closed
for any reason, the military judge must ensure that the record reflects whether
all parties and members who were present at the time of the adjournment or
recess, or at the time the court-martial closed, are present.
(3) Additions, replacement, and absences of
personnel. Whenever there is a replacement of the military judge, any member,
or counsel, either through the appearance of new personnel or personnel
previously absent or through the absence of personnel previously present, the
military judge must ensure the record reflects the change and the reason for
it.
Notes
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