(a)Discovery.(1) Disclosure by the trial counsel. Except as otherwise provided in paragraph (6) and subparagraph (7)(ii) of this subdivision, the trial counsel must provide the following information or matters to the defense.
(i) Papers accompanying charges; convening order; statements. As soon as practicable after service of charges under N.Y.R.C.M. 602, the trial counsel must provide the defense with copies of, or, if extraordinary circumstances make it impracticable to provide copies, permit the defense to inspect:(a) any paper which accompanied the charges when they were referred to the court-martial, including papers sent with charges upon a rehearing or new trial;(b) the convening order and any amending orders; and(c) any sworn or signed statement relating to an offense charged in the case which is in the possession of the trial counsel.(ii) Documents, tangible objects, reports. After service of charges, upon request of the defense, the trial counsel must permit the defense to inspect:(a) any books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial, or were obtained from or belong to the accused; and(b) any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of military authorities, the existence of which is known, or by the exercise of due diligence may become known, to the trial counsel, and which are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial.(iii) Witnesses. Before the beginning of trial on the merits the trial counsel must notify the defense of the names and addresses of the witnesses the trial counsel intends to call: (a) in the prosecution case-in-chief; and(b) to rebut a defense of alibi or lack of mental responsibility, when trial counsel has received timely notice under subparagraph (2)(i) or (ii) of this subdivision.(iv) Prior convictions of accused offered on the merits. Before arraignment the trial counsel must notify the defense of any records of prior civilian or court-martial convictions of the accused of which the trial counsel is aware and which the trial counsel may offer on the merits for any purpose, including impeachment, and must permit the defense to inspect such records when they are in the trial counsel's possession.(v) Information to be offered at sentencing. Upon request of the defense the trial counsel must: (a) permit the defense to inspect such written material as will be presented by the prosecution at the presentencing proceedings; and(b) notify the defense of the names and addresses of the witnesses the trial counsel intends to call at the presentencing proceedings under N.Y.R.C.M. 1001(b).(vi) Evidence favorable to the defense. The trial counsel must, as soon as practicable, disclose to the defense the existence of evidence known to the trial counsel which reasonably tends to: (a) negate the guilt of the accused to an offense charged;(b) reduce the degree of guilt of the accused to an offense charged; or(c) reduce the punishment.(2) Disclosure by the defense. Except as otherwise provided in paragraph (6) and subparagraph (7)(ii) of this subdivision, the defense must provide the following information to the trial counsel:
(i) Notice of alibi. The defense must notify the trial counsel before the beginning of trial on the merits of its intent to offer a defense of alibi. Such notice by the defense must disclose the specific place or places at which the defense claims the accused to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the accused intends to rely to establish such alibi.(ii) Mental responsibility. If the defense intends to rely upon the defense of lack of mental responsibility or to introduce expert testimony relating to the defense of lack of mental responsibility, the defense must, before the beginning of trial on the merits, notify the trial counsel of such intention.(iii) Documents and tangible objects. If the defense requests disclosure under clause (1)(ii)(a) of this subdivision, upon compliance with such request by the Government, the defense, on request of the trial counsel, must permit the trial counsel to inspect books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody, or control of the defense and which the defense intends to introduce as evidence in the defense case-in-chief at trial.(iv) Reports of examination and tests. If the defense requests disclosure under clause (1)(ii)(b) of this subdivision, upon compliance with such request by the government, the defense, on request of the trial counsel, must (except as provided in N.Y.R.C.M. 706 and Mil. R. Evid. 302) permit the trial counsel to inspect any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, which are within the possession, custody, or control or the defense which the defense intends to introduce as evidence in the defense case-in-chief at trial or which were prepared by a witness whom the defense intends to call at trial when the results or reports relate to that witness' testimony.(v) Inadmissibility of withdrawn defense. If an intention to rely upon a defense under subparagraph (i) or (ii) of this paragraph is withdrawn, evidence of such intention and disclosures by the accused or defense counsel made in connection with such intention is not admissible in any court-martial against the accused who gave notice of the intention.(3) Failure to call witness. The fact that a witness' name is on a list of expected or intended witnesses provided to an opposing party, whether required by this subdivision or not, is not ground for comment upon a failure to call the witness.
(4) Continuing duty to disclose. If, before or during the court-martial, a party discovers additional evidence or material previously requested or required to be produced, which is subject to discovery or inspection under this subdivision, that party must promptly notify the other party or the military judge of the existence of the additional evidence or material.
(5) Access to witnesses and evidence. Each party must have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence. No party may unreasonably impede the access of another party to a witness or evidence.
(6) Information not subject to disclosure. Nothing in this subdivision is to be construed to require the disclosure of information protected from disclosure by the Military Rules of Evidence. Nothing in this rule requires the disclosure or production of notes, memoranda, or similar working papers prepared by counsel and counsel's assistants and representatives.
(7) Regulation of discovery. (i) Time, place, and manner. The military judge may, consistent with this rule, specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just.(ii) Protective and modifying orders. Upon a sufficient showing the military judge may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the military judge may permit the party to make such showing, in whole or in part, in writing to be inspected only by the military judge. If the military judge grants relief after such an ex parte showing, the entire text of the party's statement must be sealed and attached to the record of trial as an appellate exhibit. Such material may be examined by reviewing authorities in closed proceedings for the purpose of reviewing the determination of the military judge.(iii) Failure to comply. If at any time during the court-martial it is brought to the attention of the military judge that a party has failed to comply with this subdivision, the military judge may take one or more of the following actions: (a) order the party to permit discovery;(c) prohibit the party from introducing evidence or raising a defense not disclosed; and(d) enter such other order as is just under the circumstances. This subdivision does not limit the right of the accused to testify in the accused's behalf.
(8) Inspect. As used in this subdivision inspect includes the right to photograph and copy.
(c)Production of witnesses and evidence.(1) In general. The prosecution and defense and the court-martial are to have equal opportunity to obtain witnesses and evidence, including the benefit of compulsory process. Compulsory process runs to any part of the State and to any other state in which the court-martial may be sitting (see 130.46, ML). Military courts are empowered to issue all process and mandates necessary and proper to carry into full force and effect the powers vested in them (ML, 131.7[a]).
(2) Right to witnesses.(i) On the merits or on interlocutory questions. Each party is entitled to the production of any witness whose testimony on a matter in issue on the merits or on an interlocutory question would be relevant and necessary.(ii) On sentencing. Each party is entitled to the production of witness whose testimony on sentencing is required under N.Y.R.C.M. 1001(e).(iii) Unavailable witness. Notwithstanding subparagraphs (i) and (ii) of this paragraph, a party is not entitled to the presence of a witness who is unavailable within the meaning of Mil. R. Evid. 804(a). However, if the testimony of a witness who is unavailable is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such testimony, the military judge must grant a continuance or other relief in order to attempt to secure the witness' presence or must abate the proceedings, unless the unavailability of the witness is the fault of or could have been prevented by the requesting party.(3) Determining which witness will be produced.(i) Witnesses for the prosecution. The trial counsel must obtain the presence of witnesses whose testimony the trial counsel considers relevant and necessary for the prosecution.(ii) Witnesses for the defense. (a) Request. The defense must submit to the trial counsel a written list of witnesses whose production by the State the defense requests.(b) Contents of request. (1) Witnesses on merits or interlocutory questions. A list of witnesses whose testimony the defense considers relevant and necessary on the merits or on an interlocutory question must include the name, telephone number, if known, an address or location of the witness such that the witness can be found upon the exercise of due diligence and a synopsis of the expected testimony sufficient to show its relevance and necessity.(2) Witnesses on sentencing. A list of witnesses wanted for presentencing proceedings must include the name, telephone number, if known, and address or location of the witness such that the witness can be found upon the exercise of due diligence, a synopsis of the testimony that it is expected the witness will give, and the reasons why the witness' personal appearance will be necessary under the standards set forth in N.Y.R.C.M. 1001(e).(c) Time of request. A list of witnesses under this subsection must be submitted in time reasonably to allow production of each witness on the date when the witness' presence will be necessary. The military judge may set a specific date by which such lists must be submitted. Failure to submit the name of a witness in a timely manner permits denial of a motion for production of the witness, but relief from such denial may be granted for good cause shown.(d) Determination. The trial counsel must arrange for the presence of any witness listed by the defense unless the trial counsel contends that the witness' production is not required under this subdivision. If the trial counsel contends that the witness' production is not required by this subdivision, the matter may be submitted to the military judge. If the military judge grants a motion for a witness, the trial counsel must produce the witness or the proceedings will be abated.(4) Employment of expert witnesses. When the employment at State expense of an expert is considered necessary by a party, the party must, in advance of employment of the expert, and with notice to the opposing part, submit a request to the Adjutant General of the State to authorize the employment and to fix the compensation for the expert. The request must include a complete statement of reasons why employment of the expert is necessary and the estimated cost of employment. A request denied by the Adjutant General of the State may be renewed before the military judge who must determine whether the testimony of the expert is relevant and necessary, and if so, whether the State has provided or will provide an adequate substitute. If the military judge grants a motion for employment of an expert or finds that the State is required to provide a substitute, the proceedings will be abated if the State fails to comply with the ruling. In the absence of advance authorization, an expert witness may not be paid fees other than those to which entitled under clause (5)(ii)( d) of this subdivision.
(5) Procedures for production of witnesses. (i) Military witnesses. The attendance of a military witness may be obtained by notifying the commander of the witness of the time, place, and date the witness' presence is required and requesting the commander to issue any necessary orders to the witness.(ii) Civilian witnesses-subpoena. (a) In general. The presence of witnesses not on active State duty or on a duty status other than active State duty may be obtained by subpoena.(b) Contents. A subpoena must state the command by which the proceding is directed, and the title, if any, of the proceeding. A subpoena must command each person to whom it is directed to attend and give testimony at the time and place specified therein. A subpoena may also command the person to whom it is directed to produce books, papers, documents or other objects designated therein at the proceeding or at an earlier time for inspection by the parties.(c) Who may issue. A subpoena may be issued by the summary court-martial, provost courts, and the military judge or president of other military courts to secure witnesses or evidence for that court-martial.(d) Service. A subpoena may be served by any person at least 18 years of age; the marshals of the military court or any peace officer as defined in section 2.10 of the Criminal Procedure Law, when acting pursuant to his special duties, or any police officer. Service is made by delivering a copy of the subpoena to the person named and by tendering to the person named the fees and mileage of a witness at the rates allowed to witnesses attending the Supreme Court of the State (See CPLR 8001). (See Appendices 4 and 5 for format.)(e) Place for service. (1) In general. A subpoena requiring the attendance of a witness at a deposition, court-martial, or court of inquiry may be served at any place within the State or within any other state in which the court-martial may be sitting.(2) Foreign territory. In foreign territory, the attendance of civilian witnesses may be obtained in accordance with existing agreements or, in the absence of agreements, with principles of international law.(3) Occupied territory. In occupied enemy territory, the appropriate commander may compel the attendance of civilian witnesses located within the occupied territory.(f) Relief. If a person subpoenaed requests relief on grounds that compliance is unreasonable or oppressive, the convening authority or, after referral, the military judge may direct that the subpoena be modified or withdrawn if appropriate.(g) Neglect or refusal to appear. (1) In general. A person not on active State duty or in a duty status other than active State duty who willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or produce any evidence which such person may have been subpoenaed to produce is guilty of an offense against the State and may be punished by the military court which issued the subpoena in the same manner and to the same extent as provided for the failure to appear, refusal and to qualify as a witness or to testify or refusal or failure to produce any evidence which such person may have been duly subpoenaed to produce, as provided in actions or proceedings in the Supreme Court of the State (ML, 130.47[a][3]).(2) Issuance of warrant of attachment. The military judge or, if there is no military judge, the convening authority may, in accordance with this subdivision, issue a warrant of attachment to compel the attendance of a witness or production of documents (ML, 131.7[a]).(3) Requirements. A warrant of attachment be issued only upon probable cause to believe that the witness was duly served with a subpoena, that the subpoena was issued in accordance with these rules, that appropriate fees and mileage were tendered to the witness, that the witness is material, that the witness refused or willfully neglected to appear at the time and place specified on the subpoena, and that no valid excuse reasonably appear; for the witness' failure to appear.(4) Form. A warrant of attachment must be written. All documents in support of the warrant of attachment must be attached to the warrant, together with the charge sheet and convening orders.(5) Execution. A warrant of attachment may be executed by a person authorized under paragraph (5)(ii)(d) of this subdivision as the authority issuing the warrant may direct. Only such nondeadly force as may be necessary to bring the witness before the court-martial or other proceeding may be used to execute the warrant. A witness attached under this subdivision must be brought before the court-martial or proceeding without delay and must testify as soon as practicable and be released.(6) Definition. For purposes of clause (g) of this subparagraph military judge does not include a summary court-martial or the president of a special court-martial without a military judge.(6) Right to evidence. (i) In general. Each party is entitled to the production of evidence which is relevant and necessary.(ii) Unavailable evidence. Notwithstanding subparagraph (i) of this paragraph, a party is not entitled to the production of evidence which is destroyed, lost, or otherwise not subject to compulsory process. However, if such evidence is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such evidence, military judge must grant a continuance or other relief in order to produce the evidence or must abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party.(iii) Determining what evidence will be produced. The procedures in paragraph (3) of this subdivision apply to a determination of what evidence will be produced, except that any defense request for the production of evidence must list the items of evidence to be produced and must include a description of each item sufficient to show its relevance and necessity, a statement where it can be obtained, and, if known, the name, address, and telephone number of the custodian of the evidence.(iv) Procedures for production of evidence.(a) Evidence under the control of the State. Evidence under the control of the State may be obtained by notifying the custodian of the evidence of the time, place, and date the evidence is required and requesting the custodian to send or deliver the evidence.(b) Evidence not under the control of the State. Evidence not under the control of the State may be obtained by subpoena issued in accordance with subparagraph (5)(ii) of this subdivision.(c) Relief. If the person having custody of evidence requests relief on grounds that compliance with the subpoena or order of production is unreasonable or oppressive, the convening authority or, after referral, the military judge may direct that the subpoena or order of production be withdrawn or modified. Subject to Mil. R. Evid. 505 and 506, the military judge may direct that the evidence be submitted to the military judge for an in camera inspection in order to determine whether such relief should be granted.(d)Immunity.(1) Types of immunity. Two types of immunity may be granted under this rule.(i) Transactional immunity. A person may be granted transactional immunity from trial by court-martial for one or more offenses under the code.(ii) Testimonial immunity. A person may be granted immunity from the use of testimony, statements, and any information directly or indirectly derived from such testimony or statements by that person in a later court-martial.(2) Scope. Nothing in this subdivision bars:
(i) a later court-martial for perjury, false swearing, making a false official statement, or failure to comply with an order to testify; or(ii) use in a court-martial under subparagraph (ii) of this paragraph of testimony or statements derived from such testimony or statements.(3) Authority to grant immunity. Only a general court-martial convening authority may grant immunity, and may do so only in accordance with this subdivision.
(i) Persons subject to the code. A general court-martial convening authority may grant immunity to any person subject to the code. However, a general court-martial convening authority may not grant immunity as to any prosecution in any court of the State having appropriate criminal or civil jurisdiction except when specifically authorized to do so by the person or authority empowered by law to prosecute such criminal or civil action in any such court.(ii) Persons not subject to the code. A general court-martial convening authority may grant immunity to persons not subject to the code only when specifically authorized to do so by the person or authority empowered by law to prosecute in any court of the State having appropriate criminal or civil jurisdiction.(iii) Other limitations. The authority to grant immunity under this subdivision may not be delegated. The authority to grant immunity may be limited by superior authority.(4) Procedure. A grant of immunity must be written and signed by the convening authority who issues it. The grant must include a statement of the authority under which it is made and must identify the matters to which it extends.
(5) Decision to grant immunity. Unless limited by superior competent authority, the decision whether to grant immunity is a matter within the sole discretion of the appropriate general court-martial convening authority However, if a defense request to immunize a witness has been denied, the military judge may, upon motion by the defense, grant appropriate relief directing that either an appropriate convening authority grant testimonial immunity to a defense witness or, as to the affected charges and specifications, the proceedings against the accused be abated, upon findings that:
(i) the witness' testimony would be of such central importance to the defense case that it is essential to a fair trial; and(ii) the witness intends to invoke the right against self-incrimination to the extent permitted by law if called to testify.(g)Speedy trial.(1) In general. The accused shall be brought to trial within 120 days after notice to the accused of preferral of charges under N.Y.R.C.M. 308 or the imposition of restraint under N.Y.R.C.M. 304, whichever is earlier.
(2) Accountability. (i) In general. The date on which the accused is notified of the preferral of charges or the date on which pretrial restraint is imposed does not count for the purpose of computing the time under paragraph (1) of this subdivision. The date on which the accused is brought to trial counts.(ii) Inception. If charges are dismissed, if a mistrial is granted, or - when no charges are pending - if the accused is released from pretrial restraint for a significant period, the time under this rule runs only from the date on which charges or restraint are reinstituted.(iii) Termination. An accused is brought to trial within the meaning of this subdivision when: (a) a plea of guilty is entered to an offense; or(b) presentation to the factfinder of evidence on the merits begins.(iv) Multiple charges. When charges are preferred at different times, the inception for each is to be determined from the date on which the accused was notified of preferral or on which restraint was imposed on the basis of that offense.(3) Exclusions. The following periods are to be excluded when determining whether the period in paragraph (1) of this subdivision has run:
(i) Any periods of delay resulting from other proceedings in the case including:(a) any examination into the mental capacity or responsibility of the accused;(b) any hearing on the capacity of the accused to stand trial and any time during which the accused lacks capacity to stand trial;(c) any session on pretrial motions;(d) any petition for extraordinary relief by either party.(ii) Any period of delay resulting from unavailability of a military judge when the unavailability results from extraordinary circumstances.(iii) Any period of delay resulting from a delay in a proceeding or a continuance in the court-martial granted at the request or with the consent of the defense.(iv) Any period of delay resulting from a failure of the defense to provide notice, make a request, or submit any matter in a timely manner as otherwise required by this Chapter.(v) Any period of delay resulting from a delay in the hearing under ML, 130.32 or a continuance in the court-martial at the request of the prosecution if:(a) the delay or continuance is granted because of unavailability of substantial evidence relevant and necessary to the prosecution's case when the State has exercised due diligence to obtain such evidence and there exists at the time of the delay grounds to believe that such evidence would be available within a reasonable time; or(b) the continuance is granted to allow the trial counsel additional time to prepare the prosecution's case and additional time is justified because of the exceptional circumstances of the case.(vi) Any period of delay resulting from the absence or unavailability of the accused.(vii) Any reasonable period of delay when the accused is joined for trial with a co-accused as to whom the time for trial has not yet run and there is no good cause for not granting a severance.(viii) Any other period of delay for good cause, including unusual operational requirements and military exigencies.(4) Arrest or confinement. When the accused is in pretrial arrest or confinement under N.Y.R.C.M. 304 or 305, immediate steps shall be taken to bring the accused to trial (ML, 130.10). No accused is to be held in pretrial arrest of confinement in excess of 90 days for the same or related charges. Except for any periods under subparagraph (3)(vii) of this subdivision, the periods described in paragraph (3) of this subdivision are to be excluded for the purpose of computing when 90 days has run. The military judge may, upon a showing of extraordinary circumstances, extend the period by 10 days.
(5) Remedy. Failure to comply with this subdivision results in dismissal of the affected charges upon timely motion by the accused.