N.Y. Comp. Codes R. & Regs. Tit. 9 § 517.1 - General provisions
(a)
Scope.
(1) Applicability. These rules are
applicable in courts-martial, including summary courts-martial, to the extent
and with the exceptions stated in Mil. R. Evid. 1101.
(2) Secondary sources. If not otherwise
prescribed in this Chapter or these rules, and insofar as practicable and not
inconsistent with or contrary to the code or this Chapter, courts- martial
shall apply:
(i) first, the rules of evidence
generally recognized in the trial of criminal cases in the United States
district courts; and
(ii) second,
when not inconsistent with subparagraph (i) of this paragraph, the rules of
evidence at common law.
(3) Rule of construction. Except as otherwise
provided in these rules, the term military judge includes the president of a
special court-martial without a military judge and a summary court-martial
officer.
(c) Purpose and
construction. These rules shall be construed to secure fairness in
administration, elimination of unjustifiable expense and delay, and promotion
of growth and development of the law of the evidence to the end that the truth
may be ascertained and proceedings justly determined.
(d) Rulings on evidence.
(1) Effect of erroneous ruling. Error may not
be predicated upon a ruling which admits or excludes evidence unless the ruling
materially prejudices a substantial right of a party; and
(i) Objection. In case the ruling is one
admitting evidence, a timely objection or motion to strike appears of record,
stating the specific ground of objection, if the specific ground was not
apparent from the context; or
(ii)
Offer of proof. In case the ruling is one excluding evidence, the substance of
the evidence was made known to the military judge by offer or was apparent from
the context within which questions were asked.
The standard provided in this paragraph does not apply to errors involving requirements imposed by the Constitution of the United States as applied to members of the Armed Forces except insofar as the error arises under these rules and this paragraph provides a standard that is more advantageous to the accused than the constitutional standard.
(2) Record of offer and ruling.
The military judge may add any other or further statement which shows the
character of the evidence, the form in which it was offered, the objection
made, and the ruling thereon. The military judge may direct the making of an
offer in question and answer form.
(3) Hearing of members. In a court-martial
composed of a military judge and members, proceedings shall be conducted, to
the extent practicable, so as to prevent inadmissible evidence from being
suggested to the members by any means, such as making statements or offers of
proof or asking questions in the hearing of the member.
(4) Plain error. Nothing in this subdivision
precludes taking notice of plain errors that materially prejudice substantial
rights although they were not brought to the attention of the military
judge.
(d) Preliminary
questions.
(1) Questions of admissibility
generally. Preliminary questions concerning the qualification of a person to be
a witness, the existence of a privilege, the admissibility of evidence, an
application for a continuance, or the availability of a witness shall be
determined by the military judge. In making these determinations the military
judge is not bound by the rules of evidence except those with respect to
privileges.
(2) Relevancy
conditioned on fact. When the relevancy of evidence depends upon the
fulfillment of a condition of fact, the military judge shall admit it upon, or
subject to, the introduction of evidence sufficient to support a finding of the
fulfillment of the condition. A ruling on the sufficiency of evidence to
support a finding of fulfillment of a condition of fact is the sole
responsibility of the military judge, except where these rules or this Chapter
provide expressly to the contrary.
(3) Hearing of members. Except in cases tried
before a special court-martial without a military judge, hearings on the
admissibility of statements of an accused under Mil. R. Evid. 301-306 shall in
all cases be conducted out of the hearing of the members. Hearings on other
preliminary matters shall be so conducted when the interests of justice require
or, when an accused is a witness, if the accused so requests.
(4) Testimony by accused. The accused does
not, by testifying upon a preliminary matter, become subject to
cross-examination as to other issues in the case.
(5) Weight and credibility. This subdivision
does not limit the right of a party to introduce before the members evidence
relevant to weight or credibility.
(e) Limited admissibility. When evidence
which is admissible as to one party or for one purpose but not admissible as to
another party or for another purpose is admitted, the military judge, upon
request, shall restrict the evidence to its proper scope and instruct the
members accordingly.
(f) Remainder
of or related writings or recorded statements. When a writing or recorded
statement or part thereof is introduced by a party, an adverse party may
require that party at that time to introduce any other party or any other
writing or recorded statement which ought in fairness to be considered
contemporaneously with it.
Notes
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