N.Y. Comp. Codes R. & Regs. tit. 9 § 516.4

Current through Register Vol. 46, No. 25, June 18, 2024

Section 516.4 - Forwarding and disposition of charges

(a) Forwarding and disposition of charges in general.

(1) Who may dispose of charges. Only persons authorized to convene courts-martial or to administer nonjudicial punishment under 130.15, ML may dispose of charges. A superior competent authority may withhold the authority of a subordinate to dispose of charges in individual cases, types of cases, or generally.

(2) Prompt determination. When a commander with authority to dispose of charges receives charges, that commander must promptly determine what disposition will be made in the interest of justice and discipline.

(3) How charges may be disposed of. Unless the authority to do so has been limited or withheld by superior competent authority, a commander may dispose of charges by dismissing any or all of them, forwarding any of all of them to another commander for disposition, or referring any or all of them to a court-martial which the commander is empowered to convene. Charges should be disposed of in accordance with the policy in N.Y.R.C.M. 306(b).

(i) Dismissal. When a commander dismisses charges, further disposition under N.Y.R.C.M. 306(c) of the offenses is not barred.

(ii) Forwarding charges.

(a) Forwarding to a superior commander. When charges are forwarded to a superior commander for disposition, the forwarding commander must make a personal recommendation as to disposition. If the forwarding commander is disqualified from acting as convening authority in the case, the basis for the disqualification must be noted.

(b) Other cases. When charges are forwarded to a commander who is not a superior of the forwarding commander, no recommendation as to disposition may be made.

(c) Forwarding charges against person held for trial by general court-martial. When a person is held for trial by general court-martial, the commanding officer must, within eight days after the accused is ordered into arrest or confinement, if practicable, forward through channels the charges, together with the investigation and allied papers, to the general court-martial convening authority. If the same is not practicable, he must report in writing to that authority the reasons for delay (ML, 130.33).

(iii) Referral of charges (see N.Y.R.C.M. 403, 404, 407, 601).

(b) Action by commander not authorized to convene courts-martial. When in receipt of charges, a commander authorized to administer non-judicial punishment but not authorized to convene courts-martial may:

(1) dismiss any charges; or

(2) forward them to a superior commander for disposition.

(c) Action by commander exercising summary court-martial jurisdiction.

(1) Recording receipt. Immediately upon receipt of sworn charges, an officer exercising summary court- martial jurisdiction over the command shall cause the hour and date of receipt to be entered on the charge sheet.

(2) Disposition. When in receipt of charges a commander exercising summary court- martial jurisdiction may:

(i) dismiss any charges; or

(ii) forward charges (or, after dismissing charges, the matter) to a subordinate commander for disposition; or

(iii) forward any charges to a superior commander for disposition; or

(iv) subject to N.Y.R.C.M. 601(d), refer charges to a summary court-martial for trial; or

(v) unless otherwise prescribed by the Chief of Staff to the Governor, direct a pretrial investigation under N.Y.R.C.M. 405, and, if appropriate, forward the report of investigation with the charges to a superior commander for disposition.

(d) Action by commander exercising special court-martial jurisdiction. When in receipt of charges, a commander exercising special court-martial jurisdiction may:

(1) dismiss any charges; or

(2) forward charges (or, after dismissing charges, the matter) to a subordinate commander for disposition; or

(3) forward any charges to a superior commander for disposition; or

(4) subject to N.Y.R.C.M. 601(d), refer charges to a summary court-martial or to a special court-martial for trial; or

(5) unless otherwise prescribed by the Chief of Staff to the Governor, direct a pretrial investigation under N.Y.R.C.M. 405, and, if appropriate, forward the report of investigation with the charges to a superior commander for disposition.

(e) Pretrial investigation.

(1) In general. Except as provided in paragraph (11) of this subdivision, no charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made in substantial compliance with this subdivision. Failure to comply with this subdivision has no effect if the charges are not referred to a general court-martial (ML, 130.23[a]).

(2) Earlier investigation. If an investigation of the subject matter of an offense has been conducted before the accused is charged with an offense, and the accused was present at the investigation and afforded the rights to counsel, cross-examination, and presentation of evidence required by this subdivision, no further investigation is required unless demanded by the accused to recall witnesses for further cross-examination and to offer new evidence (ML, 130.32[c]).

(3) Who may direct investigation. An investigation may be directed under this subdivision by any court-martial convening authority. The Chief of Staff to the Governor may also give procedural instructions not inconsistent with these rules.

(4) Personnel.

(i) Investigating officer. The commander directing an investigation under this subdivision must detail an officer, not the accuser, as investigating officer, who must conduct the investigation and make a report of conclusions and recommendations. The investigating officer is disqualified to act later in the case in any other capacity.

(ii) Defense counsel.

(a) Detailed counsel. Except as provided in clause (b) of this subparagraph, military counsel appointed by the Chief of Staff to the Governor who is a member of the Bar of the State of New York must be detailed to represent the accused.

(b) Individual military counsel. The accused may request to be represented by individual military counsel. Such request are to be acted on in accordance with N.Y.R.C.M. 506(b). When the accused is represented by individual military counsel, counsel detailed to represent the accused is excused, unless the authority who detailed the defense counsel, as a matter of discretion, approves a request by the accused for retention of detailed counsel. The investigating officer must forward any request by the accused for individual investigation. That commander shall follow the procedures in N.Y.R.C.M. 506(b).

(c) Civilian counsel. The accused may be represented by a civilian counsel at no expense to the State. Upon request, the accused is entitled to reasonable time to obtain civilian counsel and to have such counsel present for the investigation. However, the investigation must not be unduly delayed for this purpose. Representation by civilian counsel must not limit the rights to military counsel under clauses (a) and (b) of this subparagraph.

(iii) Others. The commander who directed the investigation may also, as a matter of discretion, detail or request an appropriate authority to detail:

(a) counsel to represent the State; and

(b) a reporter; and

(c) an interpreter.

(5) Scope of investigation. The investigating officer must inquire into the truth and form of the charges, and such other matters as may be necessary to make a recommendation as to the disposition of the charges.

(6) Rights of the accused. At any pretrial investigation under this subdivision the accused has the right to:

(i) be informed of the charges under investigation;

(ii) be informed of the identity of the accuser;

(iii) except in circumstances described in N.Y.R.C.M. 804(b)(2), be present throughout the taking of evidence;

(iv) be represented by counsel;

(v) be informed of the witnesses and other evidence then known to the investigating officer;

(vi) be informed of the purpose of the investigation;

(vii) be informed of the right against self-incrimination under ML, 130.31;

(viii) cross-examine witnesses who are produced under paragraph (7) of this subdivision;

(ix) have witnesses produced as provided for in paragraph (7) of this subdivision;

(x) have evidence, including documents or physical evidence, within the control of military authorities produced as provided under paragraph (7) of this subdivision;

(xi) present anything in defense, extenuation, or mitigation for consideration by the investigating officer; and

(xii) make a statement in any form.

(7) Production of witnesses and evidence; alternatives.

(i) In general.

(a) Witnesses. Except as provided in clause (iv)(a) of this paragraph, any witness whose testimony would be relevant to the investigation and not cumulative, must be produced if reasonably available. This includes witnesses requested by the accused, if the request is timely. A witness is "reasonably available" when the significance of the testimony and personal appearance of the witness outweighs the difficulty, expense, delay, and effect on military operations of obtaining the witness' appearance. A witness who is unavailable under Mil. R. Evid., 804(a)(1) through (6), is "not reasonably" available.

(b) Evidence. Subject to Mil. R. Evid., section V, evidence, including documents or physical evidence, which is under the control of the State and which is relevant to the investigation and not cumulative must be produced if reasonably available. Such evidence includes evidence requested by the accused, if the request is timely. Evidence is reasonably available if its significance outweighs the difficulty, expense, delay, and effect on military operations of obtaining the evidence.

(ii) Determination of reasonable availability.

(a) Military witnesses. The investigating officer must make an initial determination whether a military witness is reasonably available. If the investigating officer decides that the witness is not reasonably available, the investigating officer must inform the parties. Otherwise, the immediate commander of the witness must be requested to make the witness available. A determination by the immediate commander that the witness is not reasonably available is not subject to appeal by the accused but may be reviewed by the military judge under N.Y.R.C.M. 906(b)(3).

(b) Civilian witnesses. The investigating officer must decide whether a civilian witness is reasonably available to appear as a witness.

(c) Evidence. The investigating officer must make an initial determination whether evidence is reasonably available. If the investigating officer decides that it is not reasonably available, the investigating officer must so inform the parties. Otherwise, the custodian of the evidence must be requested to provide the evidence. A determination by the custodian that the evidence is not reasonably available is not subject to appeal by the accused, but may be reviewed by the military judge under N.Y.R.C.M. 906(b)(3).

(d) Action when witness or evidence is not reasonably available. If the defense objects to a determination that a witness or evidence is not reasonably available, the investigating officer must include a statement of the reasons for the determination in the report of investigation.

(iii) Witness expenses. Transportation expenses and a per diem allowance may be paid to civilians requested to testify in connection with an investigation under this subdivision.

(iv) Alternatives to testimony.

(a) Unless the defense objects, an investigating officer may consider, regardless of the availability of the witness:

(1) sworn statements;

(2) statements under oath taken by telephone, radio, or similar means providing each party the opportunity to question the witness under circumstances by which the investigating officer may reasonably conclude that the witness' identity is as claimed;

(3) prior testimony under oath;

(4) depositions;

(5) stipulations of fact or expected testimony;

(6) unsworn statements; and

(7) offers of proof of expected testimony of that witness.

(b) The investigating officer may consider, over objection of the defense, when the witness is not reasonably available:

(1) sworn statements;

(2) statements under oath taken by telephone, radio, or similar means providing each party the opportunity to question the witness under circumstances by which the investigating officer may reasonably conclude that the witness' identity is as claimed;

(3) prior testimony under oath; and

(4) depositions of that witness.

(v) Alternatives to evidence.

(a) Unless the defense objects, an investigating officer may consider, regardless of the availability of the evidence:

(1) testimony describing the evidence;

(2) an authenticated copy, photograph, or reproduction of similar accuracy of the evidence;

(3) an alternative to testimony, when permitted under clause (iv)(b) of this paragraph, in which the evidence is described;

(4) a stipulation of fact, document's contents, or expected testimony;

(5) an unsworn statement describing the evidence; or

(6) an offer of proof concerning pertinent characteristics of the evidence.

(b) The investigating officer may consider, over objection of the defense, when the evidence is not reasonably available:

(1) testimony describing the evidence;

(2) an authenticated copy, photograph, or reproduction of similar accuracy of the evidence; or

(3) an alternative to testimony, when permitted under clause (iv)(b) of this paragraph, in which the evidence is described.

(8) Procedure.

(i) Presentation of evidence.

(a) Testimony. All testimony is to be taken under oath, except that the accused may make an unsworn statement. The defense is to be given wide latitude in cross-examining witnesses.

(b) Other evidence. The investigating officer must inform the parties what other evidence will be considered. The parties must be permitted to examine all other evidence considered by the investigating officer (ML, 130.32[b]).

(c) Defense evidence. The defense has full opportunity to present any matters in defense, extenuation, or mitigation (ML, 130.32[b]).

(ii) Objections. Any objection alleging failure to comply with this subdivision, except paragraph (10) of this subdivision, must be made to the investigating officer promptly upon discovery of the alleged error. The investigating officer cannot rule on any objection. An objection is to be noted in the report of investigation if a party so requests. The investigating officer may require a party to file any objection in writing.

(iii) Access by spectators. Access by spectators to all or part of the proceeding may be restricted or foreclosed in the discretion of the commander who directed the investigation or by the investigating officer.

(iv) Presence of accused. The further progress of the taking of evidence must not be prevented and the accused must be considered to have waived the right to be present, whenever the accused:

(a) after being notified of the time and place of the proceeding is voluntarily absent (whether or not informed by the investigating officer of the obligation to be present); or

(b) after being warned by the investigating officer that disruptive conduct will cause removal from the proceeding, persists in conduct which is such as to justify exclusion from the proceeding.

(9) Military Rules of Evidence. The Military Rules of Evidence--other than Mil. R. Evid. 301, 302, 303, 305, and section V--do not apply in pretrial investigations under this subdivision.

(10) Report of investigation.

(i) In general. The investigating officer must make a timely written report of the investigation to the commander who directed the investigation.

(ii) Contents. The report of investigation must include:

(a) a statement of names and organizations or addresses of defense counsel and whether defense counsel was present throughout the taking of evidence, or if not present the reason why;

(b) the substance of the testimony taken on both sides, including any stipulated testimony (ML, 130.32[b]);

(c) any other statements, documents, or matters considered by the investigating officer, or recitals of the substance or nature of such evidence; and

(d) a statement of any reasonable grounds for belief that the accused was not mentally responsible for the offense or was not competent to participate in the defense during the investigation.

(iii) Distribution of the report. The investigating officer must cause the report to be delivered to the commander who directed the investigation. That commander must promptly cause a copy of the report to be delivered to each accused.

(iv) Objections. Any objection to the report must be made to the commander who directed the investigation within five days of its receipt by the accused. This paragraph does not prohibit a convening authority from referring the charges or taking other action within the five-day period.

(11) Waiver. The accused may waive an investigation under this subdivision. Such waiver must be in writing. In addition, failure to make a timely objection under this subdivision, including an objection to the report, constitutes waiver of the objection. Relief from the waiver may be granted by the investigating officer, the commander who directed the investigation, the convening authority, or the military judge, as appropriate, for good cause shown.

(f) Pretrial advice.

(1) In general. Before any charge may be referred for trial by a general court-martial, it must be referred to the staff judge advocate of the convening authority for consideration and advice (ML, 130.34[a]).

(2) Contents. The advice of the staff judge advocate must include a written and signed statement which sets forth that person's:

(i) conclusion with respect to whether each specification alleges an offense under the code;

(ii) conclusion with respect to whether the allegation of each offense is warranted by the evidence indicated in the report of investigation (if there is such a report);

(iii) conclusion with respect to whether a court-martial would have jurisdiction over the accused and the offense; and

(iv) recommendation of the action to be taken by the convening authority.

(3) Distribution. A copy of the advice of the staff judge advocate must be provided to the defense if charges are referred to trial by general court-martial.

(g) Action by commander exercising general court-martial jurisdiction.

(1) Disposition. When in receipt of charges, a commander exercising general court-martial jurisdiction may:

(i) dismiss any charges;

(ii) forward charges (or, after dismissing charges, the matter) to a subordinate commander for disposition;

(iii) forward any charges to a superior commander for disposition;

(iv) refer charges to a summary court-martial or a special court-martial for trial;

(v) unless otherwise prescribed by the Chief of Staff to the Governor, direct a pretrial investigation under N.Y.R.C.M. 405, after which additional action under this subdivision may be taken; or

(vi) subject to N.Y.R.C.M. 601(d), refer charges to a general court-martial.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.4