N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.9 - Trial procedure through findings
(a)
Opening session.
(1) Call to order. A
court-martial is in session when the military judge so declares.
(2) Announcement of parties. After the
court-martial is called to order, the presence or absence of the parties,
military judge, and members are announced.
(3) Swearing reporter and interpreter. After
the personnel have been accounted for as required in subparagraph (2) of this
subdivision, the trial counsel announces whether the reporter and interpreter,
if any is present, have been properly sworn. If not sworn, the reporter and
interpreter, if any, are sworn.
(4)
Counsel.
(i) Trial counsel. The trial counsel
must announce the legal qualifications and status as to oaths of the members of
the prosecution and whether any member of the prosecution has acted in any
manner which might tend to disqualify the counsel.
(ii) Defense counsel. The detailed defense
counsel must announce the legal qualifications and status as to oaths of the
detailed members of the defense and whether any member of the defense has acted
in any manner which might tend to disqualify that counsel. Any defense counsel
not detailed must state that counsel's legal qualifications, and whether that
counsel has acted in any manner which might tend to disqualify that
counsel.
(iii) Disqualification. If
it appears that any counsel may be disqualified, the military judge must decide
the matter and take appropriate action.
(iv) Inquiry. The military judge must in open
session:
(a) inform the accused of the rights
to be represented by military counsel detailed to the defense; or by individual
military counsel requested by the accused, if such military counsel is
reasonably available; and by civilian counsel, either alone or in association
with military counsel, if such civilian counsel is provided at no expense to
the State;
(b) inform the accused
that, if afforded individual military counsel, the accused may request
retention of detailed counsel as associate counsel;
(c) ascertain from the accused whether the
accused understands these rights;
(d) promptly inquire, whenever two or more
accused in a joint or common trial are represented by the same detailed or
individual military or civilian counsel, or by civilian counsel who are
associated in the practice of law, with respect to such joint representation
and must personally advise each accused of the right to effective assistance of
counsel, including separate representation. Unless it appears that there is
good cause to believe no conflict of interest is likely to arise, the military
judge must take appropriate measures to protect each accused's right to
counsel; and
(e) ascertain from the
accused by whom the accused chooses to be represented.
(v) Unsworn counsel. The military judge must
administer the oath to any counsel not sworn.
(5) Presence of members. In cases in which a
military judge has been detailed, the procedures described in N.Y.R.C.M. 901
through 910 must be conducted without members present in accordance with
N.Y.R.C.M. 803.
(b)
Disqualification of military judge.
(1) In
general. Except as provided in paragraph (5) of this subdivision, a military
judge must disqualify himself in any proceeding in which that military judge's
impartiality might reasonably be questioned.
(2) Specific grounds. A military judge must
also disqualify himself in the following circumstances:
(i) Where the military judge has a personal
bias or prejudice concerning a party or personal knowledge of disputed
evidentiary facts concerning the proceeding.
(ii) Where the military judge has acted as
counsel, investigating officer, legal officer, staff judge advocate, or
convening authority as to an, offense charged or in the same case
generally.
(iii) Where the military
judge has been or will be a witness in the same case, is the accuser, has
forwarded charges in the case with a personal recommendation as to disposition,
or, except in the performance of duties as military judge in a previous trial
of the same or a related case, has expressed an opinion concerning the guilt or
innocence of the accused.
(iv)
Where the military judge is not eligible to act because the military judge is
not qualified under N.Y.R.C.M. 502(c) or not detailed under N.Y.R.C.M.
503(b).
(v) Where the military
judge, the military judge's spouse, or a person within the third degree of
relationship to either of them or a spouse of such person:
(a) is a party to the proceeding;
(b) is known by the military judge to have an
interest, financial or otherwise, that could be substantially affected by the
outcome of the proceeding; or
(c)
is to the military judge's knowledge likely to be a material witness in the
proceeding.
(3) Definitions. For the purposes of this
rule the following words or phrases have the meaning indicated:
(i) proceeding includes pretrial, trial,
post-trial, appellate review, or other stages of litigation.
(ii) the degree of relationship is calculated
according to the civil law system.
(iii) "military judge" does not include the
president of a special court-martial without a military judge.
(4) Procedure.
(i) The military judge must, upon motion of
any party or sua sponte, decide whether he is disqualified.
(ii) Each party may question the military
judge and present evidence regarding a possible ground for disqualification
before the military judge decides the matter.
(iii) Except as provided under paragraph (5)
of this subdivision, if the military judge rules that he is disqualified, he
must excuse himself.
(5)
Waiver. No military judge is to accept from the parties to the proceeding a
waiver of any ground for disqualification enumerated in paragraph (2) of this
subdivision. Where the ground for disqualification arises only under paragraph
(1) of this subdivision, waiver may be accepted provided it is preceded by a
full disclosure on the record of the basis for disqualification.
(c) Accused's elections on
composition of court-martial.
(1) Time of
elections.
(i) Request for enlisted members.
Before the end of the initial session under 130.39(a), ML or, in the absence of
such a session, before assembly, the military judge must ascertain, as
applicable, whether an enlisted accused elects to be tried by a court-martial
including enlisted members (130.25[c][1], ML). The military judge may, as a
matter of discretion permit the accused to defer requesting enlisted members
until any time before assembly, which time may be determined by the military
judge.
(ii) Request for trial by
military judge alone. Before the end of the initial session under 130.39(a), ML
or, in the absence of such a session, before assembly, the military judge must
ascertain, as applicable, whether in a noncapital case, the accused requests
trial by the military judge alone (130.16 [1][B], [2][c], ML). The accused may
defer requesting trial by military judge alone until any time before
assembly.
(2) Form of
election.
(i) Request for enlisted members. A
request for membership of the court-martial to include enlisted persons must be
in writing and signed by the accused or shall be made orally on the
record.
(ii) Request for trial by
military judge alone. A request for trial by military judge alone must either
be in writing and signed by the accused or be made orally on the
record.
(3) Action on
election.
(i) Request for enlisted members.
Upon notice of a timely written request for enlisted members by an enlisted
accused, the convening authority shall detail enlisted members to the
court-martial in accordance with N.Y.R.C.M. 503 or prepare a detailed written
statement explaining why physical conditions or military exigencies prevented
this. The trial of the general issue cannot proceed until this is
done.
(ii) Request for military
judge alone. Upon receipt of a timely request for trial by military judge alone
the military judge must:
(a) ascertain whether
the accused has consulted with defense counsel and has been informed of the
identity of the military judge and of the right to trial by members;
and
(b) approve or disapprove the
request, in the military judge's discretion.
(iii) Other. In the absence of a request for
enlisted members or a request for trial by military judge alone, trial must be
by a court-martial composed of officers.
(4) Right to withdraw request.
(i) Enlisted members. A request for enlisted
members may be withdrawn, by the accused as a matter of right any time before
the end of the initial session under 130.39(a), ML or, in the absence of such a
session, before assembly.
(ii)
Military judge. A request for trial by military judge alone may be withdrawn by
the accused as a matter of right any time before it is approved, or, even after
approval, if there is a change of the military judge.
(5) Untimely requests. Failure to request, or
failure to withdraw a request for enlisted members or trial by military judge
alone in a timely manner waives the right to submit or to withdraw such a
request. However, the military judge may until the beginning of the
introduction of evidence on the merits, as a matter of discretion, approve an
untimely request or withdrawal of a request.
(6) Scope. For purposes of this subdivision,
military judge does not include the president of a special court-martial
without a military judge.
(d) Arraignment. Arraignment must be
conducted in a court-martial session and consists of reading the charges and
specification to the accused and calling on the accused to plead. The accused
may waive the reading.
(e) Motions
generally.
(1) Definitions and form. A motion
is an application to the military judge for particular relief. Motions may be
oral or, at the discretion of the military judge, written. A motion must state
the grounds upon which it is made and must set forth the ruling or relief
sought. The substance of a motion, not its form or designation,
controls.
(2) Pretrial motions. Any
defense, objection, or request which is capable of determination without the
trial of the general issue of guilt may be raised before trial. The following
must be raised before a plea is entered:
(i)
defenses or objections based on defects (other than jurisdictional defects) in
the preferral, forwarding, investigation, or referral of charges;
(ii) defenses or objections based on defects
in the charges and specifications (other than any failure to show jurisdiction
or to charge an offense, which objections must be resolved by the military
judge at any time during the pendency of the proceedings);
(iii) motions to suppress evidence;
(iv) motions for discovery under N.Y.R.C.M.
701 or for production of witnesses or evidence;
(v) motions for severance of charges or
accused; or
(vi) objections based
on denial of request for individual military counsel or for retention of
detailed defense counsel when individual military counsel has been
granted.
(3) Burden of
proof.
(i) Standard. Unless otherwise
provided in this Chapter, the burden of proof on any factual issue the
resolution of which is necessary to decide a motion is by a preponderance of
the evidence.
(ii) Assignment.
(a) Except as otherwise provided in this
Chapter the burden of persuasion on any factual issue the resolution of which
is necessary to decide a motion is on the moving party.
(b) In the case of a motion to dismiss for
lack of jurisdiction, denial of the right to speedy trial under N.Y.R.C.M. 707
or the running of the statute of limitations, the burden of persuasion upon the
State.
(4)
Ruling on motions. A motion made before pleas are entered must be determined
before pleas are entered unless, if otherwise not prohibited by this Chapter,
the military judge for good cause orders that determination be deferred until
trial of the general issue or after findings, but no such determination be
deferred if a party's right to review or appeal is adversely affected. Where
factual issues are involved in determining a motion, the military judge must
state the essential findings on the record.
(5) Effect of failure to raise defenses or
objections. Failure by a party to raise defenses or objections or to make
requests which must be made before pleas are entered under paragraph (2) of
this subdivision constitutes waiver. The military judge for good cause shown
may grant relief from the waiver. Other requests, defenses, or objections,
except lack of jurisdiction or failure of a charge to allege an offense, must
be raised before the court-martial is finally adjourned for that case and,
unless otherwise provided in this Chapter, failure to do so constitutes
waiver.
(6) Reconsideration. On
request of any party or sua sponte, the military judge may reconsider any
ruling, other than one amounting to a finding of not guilty, made by the
military judge.
(7) Effect of final
determinations. Any matter put in issue and finally determined by a
court-martial, reviewing authority, or appellate court which had jurisdiction
to determine the matter may not be disputed by the State in any other
court-martial of the same accused, except that, when the offenses charged at
one court-martial did not arise out of the same transaction as charged at the
court-martial at which the determination was made, a determination of law and
the application of law to the facts may be disputed by the State. This
subdivision also applies to matters which were put in issue and finally
determined in any other judicial proceeding in which the accused and the State
were parties.
(8) Written motions.
Written motions may be submitted to the military judge after referral and when
appropriate they may be supported by affidavits, with service and opportunity
to reply to the opposing party. Such motions may be disposed of before
arraignment and without a session. Upon request, either party is entitled to a
session under 130.39(a), ML to present oral argument or have an evidentiary
hearing concerning the disposition of written motions.
(9) Service. Written motions are to be served
on all other parties. Unless otherwise directed by the military judge, the
service is to be made upon counsel for each party.
(10) Applications to convening authority.
Except as otherwise provided in this Chapter, any matters which may be resolved
upon motion without trial of the general issue of guilt may be submitted by a
party to the convening authority before trial for decision. Submissions of such
matter to the convening authority is not, except as otherwise provided in this
Chapter, required, and is, in any event, without prejudice to the renewal of
the issue by timely motion before the military judge.
(11) Production of statements on motion to
suppress. Except as provided in this paragraph N.Y.R.C.M. 914 applies at a
hearing on a motion to suppress evidence under subparagraph (2)(iii) of this
subdivision. For purposes of this paragraph, a law enforcement officer is
deemed a witness called by the State, and upon a claim of privilege the
military judge must excise portions of the statement containing privileged
matter.
(f) Motions for
appropriate relief.
(1) In general. A motion
for appropriate relief is a request for a ruling to cure a defect which
deprives a party of a right or hinders a party from preparing for trial or
presenting its case.
(2) Grounds
for appropriate relief. The following may be requested by motion for
appropriate relief. This list is not exclusive.
(i) Continuances. A continuance may be
granted only by the military judge.
(ii) Record of denial of individual military
counsel or of denial of request to retain detailed counsel when a request for
individual military counsel was granted. If a request for military counsel was
denied, which denial was upheld on appeal (if available) or if a request to
retain detailed counsel was denied when the accused is represented by
individual military counsel, and if the accused so requests, the military judge
must ensure that a record of the matter is included in the record of trial, and
may make a finding. The trial counsel may request a continuance to inform the
convening authority of those findings. The military judge may not dismiss the
charges or otherwise effectively prevent further proceedings based on this
issue. However, the military judge may grant reasonable continuances until the
requested military counsel can be made available if the unavailability results
from temporary conditions or if the decision of unavailability is in the
process of review in administrative channels.
(iii) Correction of defects in the
investigation under 130.32, ML or pretrial advice.
(iv) Amendment of charges or specifications.
A charge or specification may not be amended over the accused's objection
unless the amendment is minor within the meaning of N.Y.R.C.M.
603(a).
(v) Severance of a
duplicious specification into two or more specifications.
(vi) Bill of particulars. A bill of
particulars may be amended at any time, subject to such conditions as justice
permits.
(vii) Discovery and
production of evidence and witnesses.
(viii) Relief from pretrial confinement in
violation of N.Y.R.C.M. 305.
(ix)
Severance of multiple accused, if it appears than an accused or the State is
prejudiced by a joint or common trial. In a common trial, a severance must be
granted whenever any accused, other than the moving accused, faces charges
unrelated to those charged against the moving accused.
(x) Severance of offenses, but only to
prevent manifest injustice.
(xi)
Change of place of trial. The place of trial may be changed when necessary to
prevent prejudice to the rights of the accused or for the convenience of the
State if the rights of the accused are not prejudiced thereby.
(xii) Determination of multiplicity of
offenses for sentencing purposes.
(xiii) Preliminary ruling on admissibility of
evidence.
(xiv) Motions relating to
mental capacity or responsibility of the accused.
(g) Motions to dismiss.
(1) In general. A motion to dismiss is a
request to terminate further proceedings as to one or more charges and
specifications on grounds capable of resolution without trial of the general
issue of guilt.
(2) Grounds for
dismissal. Grounds for dismissal include the following:
(i) Nonwaivable grounds. A charge or
specification must be dismissed at any stage of the proceedings if:
(a) The court-martial lacks jurisdiction to
try the accused for the offense; or
(b) The specification fails to state an
offense.
(ii) Waivable
grounds. A charge or specification must be dismissed upon motion made by the
accused before the final adjournment of the court-martial in that case if:
(a) dismissal is required under N.Y.R.C.M.
707;
(b) the statute of limitations
(ML, 130.43) has run, provided that if it appears that the accused is unaware
of the right to assert the statute of limitations in bar of trial, the military
judge shall inform the accused of this right;
(c) the accused has previously been tried by
court-martial under the code or State civilian court for the same offense,
provided that:
(1) no court-martial proceeding
is a trial in the sense of this rule unless presentation of evidence on the
general issue of guilty has begun;
(2) no court-martial proceeding which has
been terminated under N.Y.R.C.M. 604(b) or N.Y.R.C.M. 915 bars later
prosecution for the same offense or offenses, if so provided in those
rules;
(3) no court-martial
proceeding in which an accused has been found guilty of any charge or
specification is a trial in the sense of this subdivision until the finding of
guilty has become final after review of the case has been fully completed;
and
(4) no court-martial proceeding
which lacked jurisdiction to try the accused for the offense is a trial in the
sense of this subdivision;
(d) prosecution is barred by:
(1) a pardon issued by the
Governor;
(2) immunity from
prosecution granted by a person authorized to do so;
(3) constructive condonation of desertion
established by unconditional restoration to duty without trial of a deserter by
a general court-martial convening authority who knew of the desertion;
or
(4) prior punishment under
130.13 or 130.15, ML for the same offense, if that offense was minor.
(iii) Permissible
grounds. A specification may be dismissed upon timely motion by the accused if:
(a) the specification is so defective that it
substantially mislead the accused, and the military judge finds that, in the
interest of justice, trial should proceed on remaining charges and
specifications without undue delay; or
(b) the specification is multiplicious with
another specification, is unnecessary to enable the prosecution to meet the
exigencies of proof through trial, review, and appellate action, and should be
dismissed in the interest of justice.
(h) [Reserved ]
(i) Capacity of the accused to stand trial by
court-martial.
(1) In general. No person may
be brought to trial by court-martial unless that person possesses sufficient
mental capacity to understand the nature of the proceedings against that person
and to conduct or cooperate intelligently in the defense of the case.
(2) Presumption of capacity. A person is
presumed to have the capacity to stand trial unless the contrary
appears.
(3) Determination at
trial.
(i) Nature of issue. The mental
capacity of the accused is an interlocutory question of fact.
(ii) Standard. Trial may proceed unless it is
established by a preponderance of the evidence that the accused is presently
suffering from a mental disease or defect rendering him or her mentally
incompetent to the extent that he or she is unable to understand the nature of
the proceedings against the accused or conduct or cooperate intelligently in
the defense of the case.
(j) Pleas.
(1) Alternatives.
(i) In general. An accused may plead not
guilty or guilty (130.45, ML). An accused may plead, by exceptions or by
exceptions and substitutions, not guilty to an offense as charged, but guilty
to an offense included in that offense. A plea of guilty may not be received as
to an offense for which the death penalty may be adjudged by the
court-martial.
(ii) Conditional
pleas. With the approval of the military judge and the consent of the State, an
accused may enter a conditional plea of guilty, reserving in writing the right,
of further review or appeal, to review of the adverse determination of any
specified pretrial motion. If the accused prevails on further review or appeal,
the accused must be allowed to withdraw the plea of guilty. The trial counsel
may consent on behalf of the State.
(2) Refusal to plead; irregular plea. If an
accused fails or refuses to plead, or makes an irregular plea, the military
judge must enter a plea of not guilty for the accused.
(3) Advice to accused. Before accepting a
plea of guilty, the military judge must address the accused personally and
inform the accused of, and determine that the accused understands, the
following:
(i) the nature of the offense to
which the plea is offered, the mandatory minimum penalty, if any, provided by
law, and the maximum possible penalty provided by law;
(ii) in a general or special court-martial,
if the accused is not represented by counsel, the accused has the right to be
represented by counsel at every state of the proceedings;
(iii) that the accused has the right to plead
not guilty or to persists in that plea if already made, and that the accused
has the right to be tried by a court-martial, and that at such trial the
accused has the right to confront and cross-examine witnesses against the
accused, and the right against self- incrimination;
(iv) that if the accused pleads guilty, there
will not be a trial of any kind as to those offenses to which the accused has
so pleaded, so that by pleading guilty the accused waived the rights described
in subparagraph (iii) of this paragraph; and
(v) that if the accused pleads guilty, the
military judge will question the accused about the offenses to which the
accused has pleaded guilty, and, if the accused answers these questions under
oath, on the record, and in the presence of counsel, the accused's answers may
later be used against the accused in a prosecution for perjury or false
statement.
(4) Ensuring
that the plea is voluntary. The military judge cannot accept a plea of guilty
without first, by addressing the accused personally, determining that the plea
is voluntary and not the result of force or threats or of promises apart from a
plea agreement under N.Y.R.C.M. 705. The military judge must also inquire
whether the accused's willingness to plead guilty results from prior
discussions between the convening authority, a representative of the convening
authority, or trial counsel, and the accused or defense counsel.
(5) Determining accuracy of plea. The
military judge cannot accept a plea of guilty without making such inquiry of
the accused as will satisfy the military judge that there is a factual basis
for the plea. The accused must be questioned under oath about the
offenses.
(6) Plea agreement
inquiry.
(i) In general. A plea agreement may
not be accepted if it does not comply with N.Y.R.C.M. 705.
(ii) Notice. The parties must inform the
military judge if a plea agreement exists.
(iii) Disclosure. If a plea agreement exists,
the military judge must require disclosure of the entire agreement before the
plea is accepted, provided that in trial before military judge alone the
military judge ordinarily cannot examine any sentence limitation contained in
the agreement until after the sentence of the court-martial has been
announced.
(iv) Inquiry. The
military judge must inquire to ensure:
(a)
that the accused understands the agreement; and
(b) that the parties agree to the terms of
the agreement.
(7) Findings. Findings based on a plea of
guilty may be entered immediately upon acceptance of the plea at a session
under ML, 130.39(a), unless:
(i) the plea is
to a lesser included offense and the State intends to proceed to trial on the
offense as charged; or
(ii) trial
is by a special court-martial without a military judge, in which case the
president of the court-martial may enter findings based on the pleas without a
formal vote except when this subparagraph applies.
(8) Later action.
(i) Withdrawal by accused. If after
acceptance of the plea but before the sentence is announced the accused
requests to withdraw a plea of guilty and substitute a plea of not guilty or a
plea of guilty to a lesser included offense, the military judge may as a matter
of discretion permit the accused to do so.
(ii) Statements by accused inconsistent with
plea. If after findings but before the sentence is announced the accused makes
a statement to the court-martial, in testimony or otherwise, or presents
evidence which is inconsistent with a plea of guilty on which a finding is
based, the military judge must inquire into the providence of the plea. If,
following such inquiry, it appears that the accused entered the plea
improvidently or through lack of understanding of its meaning and effect a plea
of not guilty must be entered as to the affected charges and
specification.
(iii) Pretrial
agreement inquiry. After sentence is announced the military judge must inquire
into any parts of a pretrial agreement which were not previously examined by
the military judge. If the military judge determines that the accused does not
understand the material terms of the agreement, or that the parties disagree as
to such terms, the military judge must conform, with the consent of the State,
the agreement to the accused's under standing or permit the accused to withdraw
the plea.
(9) Record of
proceedings. Verbatim record of the guilty plea proceedings must be made in
cases in which a verbatim record is required under N.Y.C.R.M. 1103. In other
special courts- martial, a summary of the explanation and replies shall be
included in the record of trial. As to summary courts-martial, see N.Y.R.C.M.
1305.
(10) Waiver. Except as
provided in subparagraph (1)(ii) of this subdivision, a plea of guilty which
results in a finding of guilty waives any objection, whether or not previously
raised, insofar as the objection relates to the factual issue of guilt of the
offense(s) to which the plea was made.
(k) Assembly of the court-martial.
(1) The military judge must announce the
assembly of the court-martial.
(l) Challenge of selection of members;
examination and challenges of members.
(1)
Pretrial matters.
(i) Questionnaires. Before
trial the trial counsel may, and must upon request of the defense counsel,
submit to each member written questions requesting the following information:
(a) date of birth;
(b) sex;
(c) race;
(d) marital status and sex, age, and number
of dependents;
(e) home of
record;
(f) civilian and military
education, including, when available, major areas of study, name of school or
institution, years of education, and degrees received;
(g) current unit to which assigned;
(h) past duty assignments;
(i) awards and decorations
received;
(j) date of rank;
and
(k) whether the member has
acted as accuser, counsel, investigating officer, convening authority, or legal
officer or staff judge advocate for the convening authority in the case, or has
forwarded the charges with a recommendation as to disposition.
Additional information may be requested with the approval of the military judge. Each member's responses to the questions must be written and signed the by member.
(ii) Other materials. A copy of any written
materials considered by the convening authority in selecting the members
detailed to the court-martial must be provided to any party upon request,
except that such materials pertaining solely to persons who were not selected
for detail as members need not be provided unless the military judge, for good
cause, so directs.
(2)
Challenge of selection of members.
(i)
Motion. Before the examination of members under paragraph (4) of this
subdivision begins, or at the next session after a party discovered or could
have discovered by the exercise of diligence, the grounds therefor, whichever
is earlier, that party may move to stay the proceedings on the ground that
members were selected improperly.
(ii) Procedure. Upon a motion under
subparagraph (i) of this paragraph containing an offer of proof of matters
which, if true, would constitute improper selection of members, the moving
party is entitled to present evidence, including any written materials
considered by the convening authority in selecting the members. Any other party
may also present evidence on the matter. If the military judge determines that
the members have been selected improperly, the military judge must stay any
proceedings requiring the presence of members until members are properly
selected.
(iii) Waiver. Failure to
make a timely motion under this paragraph waives the improper selection unless
it constitutes a violation of N.Y.R.C.M. 501(a), 502(a)(1), or
503(a)(2).
(3) Stating
grounds for challenge. The trial counsel must state any ground for challenge
for cause against any member of which the trial counsel is aware.
(4) Examination of members. The military
judge may permit the parties to conduct the examination of members or may
personally conduct the examination. In the latter event the military judge is
to permit the parties to supplement the examination by such further inquiry as
the military judge deems proper or the military judge must submit to the
members such additional questions by the parties as the military judge deems
proper. A member may be questioned outside the presence of other members when
the military judge so directs.
(5)
Evidence. Any party may present evidence relating to whether grounds for
challenge exist against a member.
(6) Challenges and removal for cause (see ML,
130.42).
(i) Grounds. A member must be
excused for cause whenever it appears that the member:
(a) is not competent to serve as a member
under ML, 130.25(a), (b) or (c);
(b) has not been properly detailed as a
member of the court-martial;
(c) is
an accuser as to any offense charged;
(d) will be a witness in the
court-martial;
(e) has acted as
counsel for any party as to any offense charged;
(f) has been an investigating officer as to
any offense charged;
(g) has acted
in the same case as convening authority or as the legal officer or staff judge
advocate to the convening authority;
(h) will act in the same case as reviewing
authority or as the legal officer or staff judge advocate to the reviewing
authority;
(i) has forwarded
charges in the case with a personal recommendation as to disposition;
(j) upon a rehearing or new or other trial of
the case, was a member of the court-martial which heard the case
before;
(k) is junior to the
accused in grade or rank, unless it is established that this could not be
avoided;
(l) is in arrest or
confinement;
(m) has informed or
expressed a definite opinion as to the guilt or innocence of the accused as to
any offense charged;
(n) should not
sit as a member in the interest of having the court-martial free from
substantial doubt as to legality, fairness, and impartiality.
(ii) When made.
(a) Upon completion of examination. Upon
completion of any examination under paragraph (4) of this subdivision and the
presentation of evidence, if any, on the matter, each party must state any
challenges for cause it elects to make.
(b) Other times. A challenge for cause may be
made at any other time during trial when it becomes apparent that a ground for
challenge may exist. Such examination of the member and presentation of
evidence as may be necessary may be made in order to resolve the
matter.
(iii) Procedure.
Each party may make challenges outside the presence of the members. The party
making a challenge must state the grounds for it. Ordinarily the trial counsel
enters any challenges for cause before the defense counsel. The military judge
rules finally on each challenge. When a challenge for cause is granted, the
member concerned is excused. The burden of establishing that grounds for a
challenge exist is upon the party making the challenge. A member successfully
challenged must be excused.
(iv)
Waiver. The grounds for challenge is clause (i)(a) of this paragraph may not be
waived except that membership of enlisted members in the same unit as the
accused may be waived. Membership of enlisted members in the same unit as the
accused and any other ground for challenge is waived if the party knew of or
could have discovered by the exercise of diligence the ground for challenge and
failed to raise it in a timely manner. Notwithstanding the absence of a
challenge or waiver of challenge by the parties, the military judge may, in the
interest of justice, excuse a member against whom a challenge for cause would
lie. When a challenge for cause has been denied, failure by the challenging
party to exercise a peremptory challenge against any member constitutes waiver
of further consideration of the challenge upon later review. However, when a
challenge for cause is denied, a peremptory challenge by the challenging party
against any member preserves the issue for later review, provided that when the
member who was unsuccessfully challenged for cause is peremptorily challenged
by the same party, that party must state that it would have exercised its
peremptory challenge against another member is the challenge for cause had been
granted.
(7) Peremptory
challenges.
(i) Procedure. Each party may
challenge one member peremptorily (130.41[b], ML). Any member so challenged
must be excused. No party may be required to exercise a peremptory challenge
before the examination of members and determination of any challenges for cause
has been completed. Ordinarily the trial counsel enters any peremptory
challenge before the defense.
(ii)
Waiver. Failure to exercise a peremptory challenge when properly called upon to
do so waives the right to make such a challenge. The military judge may, for
good cause shown, grant relief from the waiver, but a peremptory challenge may
not be made after the presentation of evidence before the members has begun.
However, nothing in this paragraph bars the exercise of a previously
unexercised peremptory challenge against a member newly detailed under
N.Y.R.C.M. 505(c)(2)(B), even if presentation of evidence on the merits has
begun.
(8) Special
courts-martial without a military judge. In a special court-martial without a
military judge, the procedures in this subdivision apply, except that
challenges must be made in the presence of the members and a ruling on any
challenge for cause must be decided by a majority vote of the members upon
secret written ballot in closed session. The challenged member cannot be
present at the closed session at which the challenge is decided. A tie vote on
a challenge disqualifies the member challenged. Before closing, the president
must give such instructions as may be necessary to resolve the challenge. Each
challenge must be decided separately, and all unexcused members except the
challenged member must participate. When only three members are present and one
is challenged, the remaining two may decide the challenge. When the president
is challenged, the next senior member acts as president for purposes of
deciding the challenge.
(9)
Definitions.
(i) For purposes of this
subdivision, military judge does not include the president of a special
court-martial without a military judge.
(ii) For purposes of this subdivision witness
includes one who testifies at a court-martial and anyone whose declaration is
received in evidence for any purpose, including written declarations made by
affidavit or otherwise.
(iii) For
purpose of this subdivision, investigating officer includes any person who has
investigated charges under N.Y.R.C.M. 405 and any person who as counsel for a
member of a court of inquiry, or otherwise personally has conducted an
investigation of the general matter involving the offenses charged.
(m) Presentation of the
case on the merits.
(1) Preliminary
instructions. The military judge may give such preliminary instructions as may
be appropriate.
(2) Opening
statements. Each party may make one opening statement to the court-martial
before presentation of evidence has begun. The defense may elect to make its
statement after the prosecution has rested, before the presentation of evidence
for the defense. The military judge may, as a matter of discretion, permit the
parties to address the court-martial at other times.
(3) Presentation of evidence. Each party has
full opportunity to present evidence.
(i)
Order of presentation. Ordinarily the following sequence is followed:
(a) presentation of evidence for the
prosecution;
(b) presentation of
evidence for the defense;
(c)
presentation of prosecution evidence in rebuttal;
(d) presentation of defense evidence in
surrebuttal;
(e) additional
rebuttal evidence in the discretion of the military judge; and
(f) presentation of evidence requested by the
military judge or members.
(ii) Taking testimony. The testimony of
witnesses is taken orally in open session, unless otherwise provided in this
Chapter.
(iii) Views and
inspections. The military judge may, as a matter of discretion, permit the
court-martial to view or inspect premises or a place or an article or object.
Such a view or inspection may take place only in the presence of all parties,
the members (if any), and the military judge. A person familiar with the scene
may be designated by the military judge to escort the court-martial. Such
person must perform the duties of escort under oath. The escort cannot testify,
but may point out particular features prescribed by the military judge. Any
statement made at the view or inspection by the escort, a party, the military
judge, or any member must be made part of the record.
(iv) Evidence subject to exclusion. When
offered evidence would be subject to exclusion upon objection, the military
judge may, as a matter of discretion, bring the matter to the attention of the
parties and may, in the interest of justice, exclude the evidence without an
objection by a party.
(v) Reopening
case. The military judge may, as a matter of discretion, permit a party to
reopen its case after it has rested.
(n) Production of statements of witnesses.
(1) Motion for production. After a witness
other than the accused has testified on direct examination, the military judge,
on motion of a party who did not call the witness, must order the party who
called the witness to produce, for examination and use by the moving party, any
statement of the witness that relates to the subject matter concerning which
the witness has testified, and that is:
(i)
in the case of a witness called by the trial counsel, in the possession of the
State; or
(ii) in the case of a
witness called by the defense, in the possession of the accused or defense
counsel.
(2) Production
of entire statement. If the entire contents of the statement relate to the
subject matter concerning which the witness has testified, the military judge
must order that the statement be delivered to the moving party.
(3) Production of excised statement. If the
party who called the witness claims that the statement contains matter that
does not relate to the subject matter concerning which the witness has
testified, the military judge must order that it be delivered to the military
judge. Upon inspection, the military judge must excise the portions of the
statement that do not relate to the subject matter concerning which the witness
has testified, and must order that the statement, with such material excised,
be delivered to the moving party. Any portion of a statement that is withheld
from an accused over objection must be preserved by the trial counsel, and, in
the event of a conviction, must be made available to the reviewing authorities
for the purpose of determining the correctness of the decision to excise the
portion of the statement.
(4)
Recess for examination of the statement. Upon delivery of the statement to the
moving party, the military judge may recess the trial for the examination of
the statement and preparation for its use in the trial.
(5) Remedy for failure to produce statement.
If the other party elects not to comply with an order to deliver a statement to
the moving party, the military judge must order that the testimony of the
witness be disregarded by the trier of fact and that the trial proceed, or, if
it is the trial counsel who elects not to comply, must declare a mistrial if
required in the interest of justice.
(6) Definition. As used in this Part, a
statement of a witness means:
(i) a written
statement made by the witness that is signed or otherwise adopted or approved
by the witness;
(ii) a
substantially verbatim recital of an oral statement made by the witness that is
recorded contemporaneously with the making of the oral statement and contained
in a stenographic, mechanical, electrical, or other recording or a
transcription thereof; or
(iii) a
statement, however taken or recorded, or a transcription thereof, made by the
witness to a State grand jury.
(o) Mistrial.
(1) In general. The military judge may, as a
matter of discretion, declare a mistrial when such action is manifestly
necessary in the interest of justice because of circumstances arising during
the proceedings which cast substantial doubt upon the fairness of the
proceedings. A mistrial may be declared as to some or all charges, and as to
the entire proceedings or as to only the proceedings after findings.
(2) Procedure. On motion for a mistrial or
when it otherwise appears that grounds for a mistrial may exist, the military
judge must inquire into the views of the parties on the matter and then decide
the matter as an interlocutory question.
(3) Effect of declaration of mistrial.
(i) Withdrawal of charges. A declaration of a
mistrial has the effect of withdrawing the affected charges and specifications
from the court-martial.
(ii)
Further proceedings. A declaration of a mistrial does not prevent trial by
another court-martial on the affected charges and specifications except when
the mistrial was declared after jeopardy attached and before findings, and the
declaration was:
(a) an abuse of discretion
and without the consent of the defense; or
(b) the direct result of intentional
prosecutorial misconduct designed to necessitate a mistrial.
(p)
Defenses.
(1) In general. As used in this
subdivision defenses includes any special defense which, although not denying
that the accused committed the objective acts constituting the offense charged,
denies, wholly or partially, criminal responsibility for those acts.
(2) Burden of proof. Except for the defense
of lack of mental responsibility, once a defense under this subdivision is
placed in issue by some evidence, the prosecution shall have the burden of
proving beyond a reasonable doubt that the defense did not exist. The accused
has the burden of proving the defense of lack of mental responsibility by clear
and convincing evidence.
(3)
Justification. A death, injury, or other act caused or done in the proper
performance of a legal duty is justified and not unlawful.
(4) Obedience to orders. It is a defense to
any offense that the accused was acting pursuant to orders unless the accused
knew the orders to be unlawful or a person of ordinary sense and understanding
would have known the orders to be unlawful.
(5) Self-defense.
(i) Certain assaults. It is a defense to any
assault punishable under ML, 130.86 or 130.87 that the accused:
(a) apprehended, upon reasonable grounds,
that bodily harm was about to be inflicted wrongfully on the accused;
and
(b) believed that the force the
accused used was necessary for protection against bodily harm.
(ii) Loss of right to
self-defense. The right to self-defense is lost and the defense described in
subparagraph (i)(1) of this paragraph does not apply if the accused was an
aggressor, engaged in mutual combat, or provoked the attack which gave rise to
the apprehension, unless the accused had withdrawn in good faith after the
aggression, combat, or provocation and before the offense alleged
occurred.
(iii) Defense of another.
The principle of self-defense under subparagraphs (i) and (ii) of this
paragraph apply to defense of another. It is a defense to any assault under ML,
130.86 or 130.87 that the accused acted in defense of another, provided that
the accused may not use more force than the person defended was lawfully
entitled to use under the circumstances.
(6) Accident. A death, injury, or other event
which occurs as the unintentional and unexpected result of doing a lawful act
in a lawful manner is an accident and excusable.
(7) Entrapment. It is a defense that the
criminal design or suggestion to commit the offense originated in the State and
the accused had no predisposition to commit the offense.
(8) Coercion or duress. It is a defense to
any offense under the code that the accused's participation in the offense was
caused by a reasonable apprehension that the accused or another innocent person
would be immediately killed or would immediately suffer serious bodily injury
if the accused did not commit the act. The apprehension must reasonably
continue throughout the commission of the act. If the accused has any
reasonable opportunity to avoid committing the act without subjecting the
accused or another innocent person to the harm threatened, this defense does
not apply.
(9) Inability. It is a
defense to refusal or failure to perform a duty that the accused was, through
no fault of the accused, not physically or financially able to perform the
duty.
(10) Ignorance or mistake of
fact. Except as otherwise provided in this paragraph, it is a defense to an
offense that the accused held, as a result of ignorance or mistake, an
incorrect belief of the true circumstances such that, if the circumstances were
as the accused believed them, the accused would not be guilty of the offense.
If the ignorance or mistake goes to an element requiring premeditation,
specific intent, willfulness, or knowledge of a particular fact, the ignorance
or mistake need only have existed in the mind of the accused. If the ignorance
or mistake goes to any other element requiring only general intent or
knowledge, the ignorance or mistake must have existed in the mind of the
accused and must have been reasonable under all the circumstances. However, if
the accused's knowledge or intent is immaterial as to an element, then
ignorance or mistake is not a defense.
(11) Lack of mental responsibility.
(i) Lack of mental responsibility. It is an
affirmative defense to any offense that, at the time of the commission of the
acts constituting the offense, the accused, as a result of a severe mental
disease or defect, was unable to appreciate the nature and quality or the
wrongfulness of his or her acts. Mental disease or defect does not otherwise
constitute a defense.
(ii) Partial
mental responsibility. A mental condition not amounting to a general lack of
mental responsibility under subparagraph (i) of this paragraph but which
produces a lack of mental ability at the time of the offense to possess actual
knowledge or to entertain a specific intent or a premeditated design to kill is
a defense to an offense having one of these states of mind as an
element.
(iii) Procedure.
(a) Presumption. The accused is presumed to
have been mentally responsible at the time of the alleged offense. This
presumption continues until some evidence to the contrary is
admitted.
(b) Inquiry. If a
question is raised concerning the mental responsibility of the accused, the
military judge shall rule finally whether to direct an inquiry under N.Y.R.C.M.
706. In a special court-martial without a military judge, the president must
rule finally except to the extent that the question is one of fact, in which
case the president rules subject to objection by any member.
(c) Determination. The issue or mental
responsibility is not an interlocutory question.
(12) State civilian defenses.
Where an appellate court of this State has made a final determination affecting
the criminal law of this State with respect to matters of substantive law
relating to any of the defenses contained in this section; that determination
is, if applicable to the particular case, binding upon the
court-martial.
(13) Not defenses
generally.
(i) Ignorance or mistake of law.
Ignorance or mistake of law, including general orders or regulations,
ordinarily is not a defense.
(ii)
Voluntary intoxication. Voluntary intoxication, whether caused by alcohol or
drugs, is not a defense. However, evidence of any degree of voluntary
intoxication may be introduced for the purpose of raising a reasonable doubt as
to the existence of actual knowledge, specific intent, willfulness, or a
premeditated design to kill, if actual knowledge, specific intent, willfulness,
or premeditated design to kill is an element of the offense.
(q) Motion for a
finding of not guilty.
(1) In general. The
military judge, on motion by the accused or sua sponte,must enter a finding of
not guilty of one or more offenses charged after the evidence on either side is
closed and before findings on the general issue of guilt are announced if the
evidence is insufficient to sustain a conviction of the offense affected. If a
motion for a finding of not guilty at the close of the State's case is denied,
the defense may offer evidence on that offense without having reserved the
right to do so.
(2) Form of motion.
The motion must specifically indicate wherein the evidence is
insufficient.
(3) Procedure. Before
ruling on a motion for a finding of not guilty, whether made by counsel or sua
sponte, the military judge must give each party an opportunity to be heard on
the matter.
(4) Standard. A motion
for a finding of not guilty is granted only in the absence of some evidence
which, together with all reasonable inferences and applicable presumptions,
could reasonably rend to establish every essential element of an offense
charged. The evidence must be viewed in the light most favorable to the State,
without an evaluation of the credibility of witnesses.
(5) Motion as to greater offense. A motion
for a finding of not guilty may be granted as to part of a specification and,
if appropriate, the corresponding charge, as long as a lesser offense charged
is alleged in the portion of the specification as to which the motion is not
granted. In such cases, the military judge must announce that a finding of not
guilty has been granted as to specified language in the specification and, if
appropriate, corresponding charge. In cases before members, the military judge
must instruct the members accordingly, so that any findings later announced
will not be inconsistent with the granting of the motion.
(6) Effect of ruling. A ruling granting a
motion for a finding of not guilty is final when announced and may not be
reconsidered. Such a ruling is a finding of not guilty of the affected
specification, or affected portion thereof, and, when appropriate, of the
corresponding charge. A ruling denying a motion for a finding of not guilty may
be reconsidered at any time before findings on the general issue of guilt are
announced.
(7) Effect of denial on
review. If all the evidence admitted before findings, regardless by whom
offered, is sufficient to sustain findings of guilty, the findings need not be
set aside upon review solely because the motion for finding of not guilty
should have been granted upon the state of the evidence when it was
made.
(r) Findings.
(1) General findings. The general findings of
a court-martial state whether the accused is guilty of each offense charged
(ML, 130.53). If two or more accused are tried together, separate findings as
to each must be made (ML, 130.51).
(i) As to
a specification. General findings as to a specification may be: guilty; guilty
with exceptions, with or without substitutions, not guilty of the exceptions
but guilty of any substitutions; not guilty only by reason of lack of mental
responsibility; or not guilty. Exceptions and substitution may not be used to
substantially change the nature of the offense or to increase the seriousness
of the offense or the maximum punishment for it.
(ii) As to a charge. General findings as to a
charge may be: guilty; not guilty, but guilty of a violation of section ______;
not guilty only by reason of lack of mental responsibility; or not
guilty.
(2) Special
findings. In a trial by court-martial composed of military judge alone, the
military judge must make special findings upon request by any party (ML,
130.51). Special findings may be requested only as to matters of fact
reasonably in issue as to an offense and need be made only as to offenses of
which the accused was found guilty. Special findings may be requested at any
time before general findings are announced. Only one set of special findings
may be requested by a party in a case. If the request is for findings on
specific matters, the military judge may require that the request be written.
Special findings may be entered orally on the record at the court-martial or in
writing during or after the court-martial, but in any event shall be made
before authentication and included in the record of trial.
(3) Basis of findings. Findings may be based
on direct or circumstantial evidence. Only matters properly before the
court-martial on the merits of the case may be considered. A finding of guilty
of any offense may be reached only when the factfinder is satisfied that guilt
has been proved beyond a reasonable doubt.
(s) Argument by counsel on findings.
(1) In general. After the closing the
evidence, trial counsel must be permitted to open the argument. The defense
counsel must be permitted to reply. Trial counsel may reply in
rebuttal.
(2) Contents. Arguments
may properly include reasonable comment on the evidence in the case, including
inferences to be drawn therefrom, in support of a party's theory of the
case.
(3) Waiver of objection to
improper argument. Failure to object to improper argument before the military
judge begins to instruct the members on findings waives the
objection.
(t)
Instructions on findings.
(1) In general. The
military judge must give the members appropriate instructions on findings (ML,
130.51).
(2) When given.
Instructions on findings must be given after arguments by counsel and before
the members close to deliberate on findings, but the military judge may, upon
request of the members, any party, or sua sponte, give additional instructions
at a later time.
(3) Requests for
instructions. At the close of the evidence or at such other time as the
military judge may permit, any party may request that the military judge
instruct the members on the law as set forth in the request. The military judge
may require the requested instruction to be written. Each party must be given
the opportunity to be heard on any proposed instruction on findings before it
is given. The military judge must inform the parties of the proposed action on
such requests before their closing arguments.
(4) How given. Instructions on findings must
be given orally on the record in the presence of all parties and the members.
Written copies of the instructions, or, unless a party objects, portions of
them, may also be given to the members for their use during
deliberations.
(5) Required
instructions. Instructions on findings must include:
(i) a description of the elements of each
offense charged, unless findings on such offenses are unnecessary because they
have been entered pursuant to a plea of guilty;
(ii) a description of the elements of each
lesser included offense in issue;
(iii) a description of any special defense
under N.Y.R.C.M. 915 in issue;
(iv)
a direction that only matters properly before the court-martial may be
considered;
(v) a charge that:
(a) the accused must be presumed to be
innocent until the accused's guilt is established by legal and competent
evidence beyond reasonable doubt;
(b) in the case being considered, if there is
a reasonable doubt as to the guilt of the accused, the doubt must be resolved
in favor of the accused and the accused must be acquitted;
(c) if, when a lesser included offense is in
issue, there is a reasonable doubt as to the degree of guilt of the accused,
the finding must be in a lower degree as to which there is no reasonable doubt;
and
(d) the burden of proof to
establish the guilt of the accused is upon the State. [When the issue of lack
of mental responsibility is raised, at:] however, the burden of proving the
defense of lack of mental responsibility by clear and convincing evidence is
upon the accused;
(vi)
directions on the procedures under N.Y.R.C.M. 920 for deliberations and voting;
and
(vii) such other explanations,
descriptions, or directions as may be necessary and which are properly
requested by a party or which the military judge determines, sua sponte, should
be given.
(6) Waiver.
Failure to object to an instruction or to omission of an instruction before the
members close to deliberate waives the objection in the absence of plain error.
The military judge may require the party objecting to specify in what respect
the instructions given were improper. The parties must be given the opportunity
to be heard on any objection outside the presence of the members.
(u) Deliberations and voting on
findings.
(1) In general. After the military
judge instructs the members on findings, the members must deliberate and vote
in a closed session. Only the members shall be present during deliberations and
voting. Superiority in rank cannot be used in any manner in an attempt to
control the independence of members in the exercise of their judgement (ML,
130.37, 130.51 and 130.52).
(2)
Deliberations. Deliberations properly include full and free discussion of the
merits of the case. Unless otherwise directed by the military judge, members
may take with them in deliberations their notes, if any, any exhibits admitted
in evidence, and any written instructions. Members may request that the
court-martial be reopened and that portions of the record be read to them or
additional evidence introduced. The military judge may, in the exercise of
discretion, grant such request.
(3)
Voting.
(i) Secret bills. Voting on the
findings for each charge and specification must be by secret written ballot.
All members present must vote.
(ii)
Number or votes required to convict. A finding of guilty results only if at
least two-thirds of the members present vote for a finding of guilty.
(iii) Acquittal. If fewer than two-thirds of
the members present vote for a finding of guilty, a finding of not guilty has
resulted as to the charge or specification on which the vote was
taken.
(iv) Not guilty only by
reason of lack of mental responsibility. When the defense of lack of mental
responsibility is an issue under N.Y.R.C.M. 916(k)(1), the members shall first
vote on whether the prosecution has proven the elements of the offense beyond a
reasonable doubt. If at least two-thirds of the members present vote for a
finding of guilty, then the members shall vote on whether the accused has
proven lack of mental responsibility. If a majority of the members present
concur that the accused has proven lack of mental responsibility by clear and
convincing evidence, a finding of not guilty only by reason of lack of mental
responsibility results. If the vote on lack of mental responsibility does not
result in a finding of not guilty only by reason of lack of mental
responsibility, then the defense of lack of mental responsibility has been
rejected and the finding of guilty stands.
(v) Included offenses. Members cannot vote on
a lesser included offense unless a finding of not guilty of the offense charged
has been reached. If a finding of not guilty of an offense charged has been
reached the members must vote on each included offense on which they have been
instructed, in order of severity beginning with the most severe. The members
must continue to vote on each included offense on which they have been
instructed until a finding of guilty results or findings of not guilty have
been reached as to each such offense.
(vi) Procedure for voting.
(a) Order. Each specification must be voted
on separately before the corresponding charge. The order of voting on several
specifications under a charge or on several charges is determined by the
president unless a majority of the members object.
(b) Counting votes. The junior member
collects the ballots and counts the votes. The president checks the count and
informs the other members of the result.
(4) Action after findings are reached. After
the members have reached findings on each charge and specification before them,
the court-martial must be opened and the president shall inform the military
judge that findings have been reached. The military judge may, in the presence
of the parties, examine any writing which the president intends to read to
announce the sentence and may assist the members in putting the findings in
proper form. Neither that writing nor any oral or written clarification or
discussion concerning it constitutes announcement of the findings.
(v) Announcement of findings.
(1) In general. Findings shall be announced
in the presence of all parties promptly after they have been determined (ML,
130.53).
(2) Findings by members.
The president must announce the findings by the members. If a finding is based
on a plea of guilty, the president must so state.
(3) Findings by military judge. The military
judge must announce the findings when trial is by military judge alone or when
findings may be entered under N.Y.R.C.M. 910(g).
(4) Erroneous announcement. If an error was
made in the announcement of the findings of the court-martial, the error may be
corrected by a new announcement in accordance with this subdivision. The error
must be discovered and the new announcement made before the final adjournment
of the court-martial in the case.
(5) Polling prohibited. Except as provided in
Mil. R. Evid. 606, members may not be questioned about their deliberations and
voting.
(w) Impeachment
of findings. Findings which are proper on their face may be impeached only when
extraneous prejudicial information was improperly brought to the attention of a
member, outside influence was improperly brought to bear upon any member, or
unlawful command influence was brought to bear upon any member.
(x) Reconsideration of findings.
(1) Time for reconsideration. Members may
reconsider any finding reached by them before such finding is announced in open
session. Members may reconsider any finding of guilty reached by them at any
time before announcement of the sentence.
(2) Procedure. Any member may propose that a
finding be reconsidered. If such a proposal is made in a timely manner the
question whether to reconsider shall be determined in closed session by secret
written ballot. Any finding of not guilty shall be reconsidered if a majority
vote for reconsideration. Any finding of guilty shall be reconsidered if more
than one-third of the members vote for reconsideration. Any finding of not
guilty only by reason of lack of mental responsibility shall be reconsidered on
the issue of the finding of guilty of the elements if more than one-third of
the members vote for reconsideration, and on the issue of mental responsibility
if a majority vote for reconsideration. If a vote to reconsider a finding
succeeds, the procedures in N.Y.R.C.M. 920 shall apply.
(3) Military judge sitting alone. In trial by
military judge alone, the military judge may reconsider any finding of guilty
at any time before announcement of sentence.
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.