N.Y. Comp. Codes R. & Regs. tit. 9 § 516.6

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

Section 516.6 - Referral, service, amendment and withdrawal of charges

(a) Referral.

(1) In general. Referral is an order of a convening authority that charges against an accused will be tried by a specified court-martial.

(2) Who may refer. Any convening authority may refer charges to a court-martial convened by that convening authority or a predecessor, unless the power to do so has been withheld by superior competent authority.

(3) Disqualification. An accuser may not refer charges to a general or special court-martial.

(4) When charges may be referred.

(i) Basis for referral. If the convening authority finds or is advised by a judge advocate that there are reasonable grounds to believe that an offense triable by a court-martial has been committed and that the accused committed it, and that the specification alleges an offense, the convening authority may refer it. The finding may be based on hearsay in whole or in part. The convening authority or judge advocate may consider information from any source and is not limited to the information reviewed by any previous authority, but a case may not be referred to a general court-martial except in compliance with subparagraph (ii) of this paragraph. The convening authority or judge advocate is not required before charges are referred to resolve legal issues, including objections to evidence, which may arise at trial.

(ii) General courts-martial. The convening authority may not refer a specification under a charge to a general court-martial unless:

(a) there has been substantial compliance with the pretrial investigation requirements of N.Y.R.C.M. 405; and

(b) the convening authority has received the advice of the staff judge advocate required under N.Y.R.C.M. 406.

These requirements may be waived by the accused.

(5) How charges are referred.

(i) Order, instructions. Referral is made by the personal order of the convening authority. The convening authority may include proper instructions in the order.

(ii) Joinder of offenses. In the discretion of the convening authority, two or more offenses charged against an accused may be referred to the same court-martial for trial, whether serious or minor offenses or both, regardless whether related. Additional charges may be joined with other charges for a single trial at any time before arraignment if all necessary procedural requirements concerning the additional charges have been compiled with. After arraignment of the accused upon charges, no additional charges may be referred to the same trial without consent of the accused.

(iii) Joinder of accused. Allegations against two or more accused may be referred for joint trial if the accused are alleged to have participated in the same act or transaction or in the same series of acts; or transactions constituting an offense or offenses. Such accused may be charged in one or more specifications together or separately, and every accused need not be charged in each specification. Related allegations against two or more accused which may be proved by substantially the same evidence may be referred to a common trial.

(6) Superior convening authorities. Except as otherwise provided in these rules, a superior competent authority may cause charges, whether or not referred, to be transmitted to that authority for further consideration, including, if appropriate, referral.

(b) Service of charges. The trial counsel detailed to the court-martial to which charges have been referred for trial must cause to be served upon each accused a copy of the charge sheet. In time or peace, no person may, over objection, be brought to trial, including a session under ML, 130.39(a) before a general court-martial within a period of five days after service of charges, or before a special court-martial within a period of three days after service of charges. In computing these periods, the date of service of charges and the date of trial are excluded; holidays and Sundays are included (ML, 130.35).

(c) Changes to charges and specifications.

(1) Minor changes defined. Minor changes in charges and specifications are any except those which add a party, offense, or substantial matter not fairly included in those previously preferred, or which are likely to mislead the accused as to the offenses charged.

(2) Minor changes before arraignment. Any person forwarding, acting upon, or prosecuting charges on behalf of the State except an investigation officer appointed under N.Y.R.C.M. 405 may make minor changes to charges or specifications before arraignment.

(3) Minor changes after arraignment. After arraignment the military judge may, upon motion, permit minor changes in the charges and specifications at any time before findings are announced if no substantial right of the accused is prejudiced.

(4) Major changes. Changes or amendments to charges or specifications other than minor changes may not be made over the objection of the accused unless the charge or specification affected is preferred anew.

(d) Withdrawal of charges.

(1) Withdrawal. The convening authority or a superior competent authority may for any reason proper cause any charges or specifications to be withdrawn from a court-martial at any time before findings are announced.

(2) Referral of withdrawn charges. Charges which have been withdrawn from a court-martial may be referred to another court-martial unless the withdrawal was for an improper reason. Charges withdrawn after the introduction of evidence on the general issue of guilt may be referred to another court-martial only if the withdrawal was necessitated by urgent and unforeseen military necessity.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.6