N.Y. Comp. Codes R. & Regs. tit. 9 § 516.8

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

Section 516.8 - Trial procedure generally

(a) Military judge's responsibilities; other matters.

(1) Responsibilities of military judge. The military judge is the presiding officer in a court-martial (ML, 130.26[a]). The military judge must:

(i) determine the time and uniform for each session of a court-martial;

(ii) ensure that the dignity and decorum of the proceedings are maintained;

(iii) subject to the code and this Chapter, exercise reasonable control over the proceedings to promote the purposes of these rules and this Chapter;

(iv) subject to paragraph (5) of this subdivision, rule on all interlocutory questions and all questions of law raised during the court-martial; and

(v) instruct the members on questions of law and procedure which may arise.

(2) Rules of court; contempt. The military judge may:

(i) subject to N.Y.R.C.M. 108, promulgate and enforce rules of court; and

(ii) subject to N.Y.R.C.M. 809, exercise contempt power.

(3) Obtaining evidence. The court-martial may act to obtain evidence in addition to that presented by the parties. The right of the members to have additional evidence obtained is subject to an interlocutory ruling by the military judge.

(4) Uncharged offenses. If during the trial there is evidence that the accused may be guilty of an untried offense not alleged in any specification before the court-martial, the court-martial must proceed with the trial of the offense charged.

(5) Interlocutory questions and questions of law. For purposes of this paragraph "military judge" does not include the president of a special court-martial without a military judge.

(i) Rulings by the military judge.

(a) Finality of rulings. Any ruling by the military judge upon a question of law, including a motion for a finding of not guilty, or upon any interlocutory question is final.

(b) Changing a ruling. The military judge may change a ruling made by that or another military judge in the case except a previously granted motion for a finding of not guilty, at any time during the trial.

(c) Sessions under ML, 130.39(a). When required by this Chapter or otherwise deemed appropriate by the military judge, interlocutory questions or questions of law must be presented and decided at sessions held without members under N.Y.R.C.M. 803.

(ii) Rulings by the president of a special court-martial without a military judge.

(a) Questions of law. Any ruling by the president of a special court-martial without a military judge on any question of law other than a motion for a finding of not guilty is final.

(b) Questions of fact. Any ruling by the president of a special court-martial without a military judge on any interlocutory question of fact, including a factual issue of mental capacity of the accused, or on a motion for a finding of not guilty, is final unless objected to by a member.

(c) Changing a ruling. The president of a special court-martial without a military judge may change a ruling made by that or another president in the case except a previously granted motion for a finding of not guilty, at any time during the trial.

(d) Presence of members. Except as provided in N.Y.R.C.M. 505 and 911, all members will be present at all sessions of a special court-martial without military judge, including sessions at which questions of law or interlocutory questions are litigated. However, the president of a special court-martial without a military judge may examine an offered item of real or documentary evidence before ruling on its admissibility without exposing it to other members.

(iii) Procedures for rulings by the president of a special court-martial without a military judge which are subject to objection by a member.

(a) Determination. The president of a special court-martial without a military judge determines whether a ruling is subject to objection.

(b) Instructions. When a ruling by the president of a special court-martial without a military judge which is subject to objection, the president is to so advise the members and must give such instructions on the issue as may be necessary to enable the members to understand the issue and the legal standards by which they will determine it if objection is made.

(c) Voting. When a member objects to a ruling by the president of a special court-martial without a military judge which is subject to objection, the court-martial must be closed, and the members must vote orally, beginning with the junior in rank, and the question must be decided by a majority vote. A tie vote on a motion for a finding of not guilty is a determination against the accused. A tie vote on any other question is a determination in favor of the accused.

(d) Consultation. The president of a special court-martial without a military judge may close the court-martial and consult with other members before ruling on a matter, when such ruling is subject to the objection of any member.

(iv) Standard of proof. Questions of fact in an interlocutory question are to be determined by a preponderance of the evidence, unless otherwise stated in this Chapter. In the absence of a subdivision in this Chapter assigning the burden of persuasion, the party making the motion or raising the objection bears the burden of persuasion.

(v) Scope. This paragraph applies to the disposition of questions of law and interlocutory questions arising during trial except the question whether a challenge should be sustained.

(6) Rulings on record. All sessions involving rulings or instructions made or given by the military judge or the president of a special court-martial without a military judge are to be made a part of the record. All rulings and instructions are to be made or given in open session in the presence of the parties and the members, except as otherwise may be determined in the discretion of the military judge. For purposes of this paragraph, "military judge" does not include the president of a special court-martial without a military judge.

(7) Effect of failure to raise defenses or objections. Failure by a party to raise defenses or objections or to make requests or motions which must be made at the time set by this Chapter or by the military judge under authority or this Chapter, or prior to any extension thereof made by the military judge constitutes waiver thereof, but the military judge for good cause shown may grant relief from the waiver.

(b) Conferences.

(1) In general. After referral, the military judge may, upon request of any party or sua sponte, order one or more conferences with the parties to consider such matters as will promote a fair and expeditious trial.

(2) Matters on record. Conferences need not be made part of the record, but matters agreed upon at a conference are to be included in the record orally or in writing. Failure of a party to object at trial to failure to comply with this paragraph waives this requirement.

(3) Rights of parties. A conference cannot proceed over the objection of any party. No party may be prevented under this rule from presenting evidence or from making any argument, objection, or motion at trial.

(4) Accused's presence. The presence of the accused is neither required nor prohibited at a conference.

(5) Admission. No admissions made by the accused or defense counsel at a conference are to be used against the accused unless the admissions are reduced to writing and signed by the accused and defense counsel.

(6) Limitations. This subdivision cannot be invoked in the case of an accused who is not represented by counsel, or in special courts-martial without a military judge.

(c) Court-martial sessions without members under 130.39(a), ML. A military judge who has been detailed to the court-martial may, under 130.39(a), ML, after service of charges, call the court-martial into session without the presence of members. Such sessions may be held before and after assembly of the court-martial, and when authorized in these rules, after adjournment and before action by the convening authority. All such sessions are a part of the trial and must be conducted in the presence of the accused, defense counsel, and trial counsel, in accordance with N.Y.R.C.M 804 and 805, and must be made a part of the record. For purposes of this rule "military judge" does not include the president of a special court-martial without a military judge.

(d) Presence of the accused at trial proceedings.

(1) Presence required. The accused shall be present at the arraignment, the time of the plea, every stage of the trial including sessions conducted under 130.39(a), ML, voir dire and challenges of members, the return of the findings, sentencing proceedings, and post-trial sessions, if any, except as otherwise provided by this subdivision.

(2) Continued presence not required. The further progress of the trial to and including the return of the findings and, if necessary, determination of a sentence cannot be prevented and the accused must be considered to have waived the right to be present whenever an accused, initially present:

(i) is voluntarily absent after arraignment (where informed by the military judge of the obligation to remain during the trial); or

(ii) after being warned by the military judge that disruptive conduct will cause the accused to be removed from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom.

(3) Persons charged with absence without leave under 130.82, ML. The presence of the accused at any time described in paragraph (1) of this subdivision is not required at a special court-martial empowered to adjudge a bad conduct discharge where, and the accused must be considered to have waived the right to be present at such court-martial if such court-martial obtains in personam jurisdiction over him by any method of personal service described in 130.3(d), ML; provided that a warning accompanies the charge sheet in substantially the following format:

"WARNING: You have a right to be present at your court-martial. In the event you fail to appear, the court-martial may proceed in your absence."

(4) Appearance and security of accused.

(i) Appearance. The accused must be properly attired in the uniform or dress prescribed by the military judge. An accused service member must wear the insignia of grade and may wear any decorations, emblems, or ribbons to which entitled. The accused and defense counsel are responsible for ensuring that the accused is properly attired; however, upon request, the accused's commander is to render such assistance as may be reasonably necessary to ensure that the accused is properly attired.

(ii) Custody. Responsibility for maintaining custody or control of an accused before and during trial may be assigned, subject to N.Y.R.C.M. 304 and 305, and subparagraph (iii) of this paragraph.

(iii) Restraint. Physical restraint cannot be imposed on the accused during open sessions of the court-martial unless prescribed by the military judge.

(e) Presence of military judge, members, and counsel.

(1) Military judge. No court- martial proceeding, except the deliberations of the members, may take place in the absence of the military judge, if detailed (ML, 130.26[a]).

(2) Members. Unless trial is by military judge alone pursuant to a request by the accused, no court-martial proceeding may take place in the absence of any detailed member except: sessions under ML, 130.39(a) under N.Y.R.C.M. 803; examination of members under N.Y.R.C.M. 910(d); when the member has been excused under N.Y.R.C.M. 505 or 910(f); or as otherwise provided in N.Y.R.C.M. 1102 (See ML, 130.29[a]). No general court-martial proceeding requiring the presence of members may be conducted unless at least 5 members are present and, except as provided in N.Y.R.C.M. 910(h), no special court-martial proceeding requiring the presence of members may be conducted unless at least three members are present (ML, 130.29[b] and [c]). Except as provided in N.Y.R.C.M. 503(b), when an enlisted accused has requested enlisted members, no proceeding requiring the presence of members may be conducted unless at least one-third of the members actually sitting on the court-martial are enlisted persons (ML, 130.25[c][1]).

(3) Counsel. As long as at least one qualified counsel for each party is present, other counsel for each party may be absent from a court-martial session. An assistant counsel who lacks the qualifications necessary to serve as counsel for a party may not act at a session in the absence of such qualified counsel.

(4) Effect of replacement of member or military judge.

(i) Members. When after the presentation of evidence on the merits has begun, a new member is detailed under N.Y.R.C.M. 505(c)(2)(B), trial may not proceed unless the testimony and evidence previously admitted on the merits, if recorded verbatim, is read to the new member in the presence of the military judge, the accused, and counsel for both sides; or, if not recorded verbatim, and in the absence of a stipulation as to such testimony and evidence, the trial proceeds as if no evidence has been presented (ML, 130.29[b] and [c]).

(ii) Military judge. When, after the presentation of evidence on the merits has begun in trial before military judge alone, a new military judge is detailed under N.Y.R.C.M. 505(e)(2) trial may not proceed unless the accused requests, and the military judge approves, trial by military judge alone, and a verbatim record of the testimony and evidence or a stipulation thereof is read to the military judge in the presence of the new military judge, the accused, and counsel for both sides; or the trial proceeds as if no evidence has been presented (ML, 130.29[d]).

(f) Public trial.

(1) In general. Except as otherwise provided in this subdivision, courts-martial are open to the public. For purposes of this subdivision, public includes members of both the military and civilian communities.

(2) Control of spectators. In order to maintain the dignity and decorum of the proceedings or for other good cause, the military judge may reasonably limit the number of spectators in, and the means of access to, the courtroom, exclude specific persons from the courtroom, and close a session; however, a session may be closed over the objection of the accused only when expressly authorized by another provision of this Chapter.

(3) Photography and broadcasting prohibited. Video and audio recording and the taking of photographs -- except for the purpose of preparing the record of trial -- in the courtroom during the proceedings and radio or television broadcasting of proceedings from the courtroom shall not be permitted. However, the military judge may, as a matter of discretion permit contemporaneous closed-circuit video or audio transmission to permit viewing or hearing by an accused removed under N.Y.R.C.M. 804 or by spectators when courtroom facilities are inadequate to accommodate a reasonable number of spectators.

(g) Oaths.

(1) Definition. Oath includes "affirmation".

(2) Oaths in court-martial.

(i) Who must be sworn.

(a) Court-martial personnel. The military judge, members of a general or special court-martial, trial counsel, assistant trial counsel, defense counsel, associate defense counsel, assistant defense counsel, reporter, interpreter, and escort must take an oath to perform their duties faithfully (130.42[a], ML). For purposes of this subdivision, "defense counsel", "associate defense counsel", and "assistant defense counsel" include detailed and individual military and civilian counsel.

(b) Witnesses. Each witness before a court-martial must be examined on oath. (ML, 130.42[b]).

(ii) Procedure for administering oaths. Any procedure which appeals to the conscience of the person to whom the oath is administered and which binds that person to speak the truth, or, in the case of one other than a witness, properly to perform certain duties, is sufficient.

(h) Record of trial. The trial counsel of a general or special court-martial must take such action as may be necessary to ensure that a record which will meet the requirements of N.Y.R.C.M. 1103 can be prepared.

(i) Contempt proceedings.

(1) In general. Courts-martial may exercise contempt power under ML, 130.48.

(2) Method of disposition.

(i) Summary disposition. When conduct constituting con tempt is directly witnessed by the court-martial, the conduct may be punished summarily. In such cases, the regular proceedings must be suspended while the contempt is disposed of.

(ii) Disposition upon notice and hearing. When the conduct apparently constituting contempt is not directly witnessed by the court-martial, the alleged offender must be brought before the court-martial and informed orally or in writing of the alleged contempt. The alleged offender must be given a reasonable opportunity to present evidence, including calling witnesses. The alleged offender must have the right to be represented by counsel and evidence, including calling witnesses. The alleged offender must have the right to be represented by counsel and shall be so advised. The contempt must be proved beyond a reasonable doubt before it may be punished.

(3) Procedure; who may punish for contempt.

(i) Members not present. When the conduct allegedly constituting contempt occurs during a session when the members are not present, the military judge must determine whether to punish for contempt, and, if so, what the punishment is to be. The military judge may punish summarily under subparagraph (2)(i) of this subdivision only if the military judge recited the facts for the record and states that they were directly witnessed by the military judge in the actual presence of the court-martial.

(ii) Members present. When the conduct allegedly constituting contempt occurs during a session when the members are present, contempt proceedings may be initiated by the military judge or upon motion of any member, unless the military judge rules that as a matter of law, contempt has not been committed. If contempt proceedings are initiated the following procedures apply.

(a) Instructions. The military judge must instruct the members so that they can properly decide the questions presented.

(b) Findings. The members must decide in a closed session, upon vote by secret written ballot whether to hold an alleged offender in contempt. At least two-thirds of the members must concur in a finding of contempt to convict unless that member directly witnessed the conduct in question in the presence of the court-martial and finds it to be contemptuous.

(c) Sentence. If the members find the offender in contempt, they must, without reopening the court-martial, determine the punishment in accordance with the procedures in N.Y.R.C.M. 1006.

(d) Announcement. After reaching findings, and, if necessary, a sentence, the court-martial must be reopened and the results announced by the president.

(4) Record; review. A record of the contempt proceedings must be part of the record of the court-martial during which it occurred. If the person was held in contempt, then a separate record of the contempt proceedings must be prepared and forwarded to the convening authority for review. The convening authority may approve or disapprove all or part of the sentence. The action of the convening authority is not subject to further review or appeal.

(5) Sentence. A sentence of confinement pursuant to a finding of contempt begins to run when it is adjudged unless deferred, suspended, or disapproved by the convening authority. The place of confinement for a civilian or military person who is held in contempt and is to be punished by confinement must be designated by the convening authority. A fine does not become effective until ordered executed by the convening authority. The military judge may delay announcing the sentence after a finding of contempt to permit the person involved to continue to participate in the proceedings.

(6) Informing person held in contempt. The person held in contempt must be informed by the convening authority in writing of the holding and sentence, if any, of the court-martial and of the action of the convening authority upon the sentence.

(j) Procedures for rehearings, new trials, and other trials.

(1) In general.

(i) Rehearings in full and new or other trials. In rehearings which require findings on all charges and specifications referred to a court-martial and in new or other trials, the procedure is the same as in an original trial except as otherwise provided in this subdivision.

(ii) Rehearings on sentence only. In a rehearing on sentence only, the procedure is the same as in an original trial, except that the portion of the procedure which ordinarily occurs after challenges and through and including the findings is omitted, and except as otherwise provided in this subdivision.

(a) Contents of the record. The contents of the record of the original trial consisting of evidence properly admitted on the merits relating to each offense of which the accused stands convicted but not sentenced may be established by any party whether or not testimony so read is otherwise admissible under Mil. R. Evid. 804(b)(1) and whether or not it was given through an interpreter.

(b) Plea. The accused at a rehearing only on sentence may not withdraw any plea of guilty upon which findings of guilty are based. However, if such a plea is found to be improvident, the rehearing must be suspended and the matter reported to the authority ordering the rehearing.

(iii) Combined rehearings. When a rehearing on sentence is combined with a trial on the merits of one of more specifications referred to the court-martial, whether or not such specifications are being tried for the first time or reheard, the trial will proceed first on the merits, without reference to the offenses being reheard on sentence only. After findings on the merits are announced, the members, if any, must be advised of the offenses on which the rehearing on sentence has bean directed. Additional challenges for cause may be permitted, and the sentencing procedure must be the same as at an original trial, except as otherwise provided in this subdivision. A single sentence must be adjudged for all offenses.

(2) Composition.

(i) Members. No member of the court-martial which previously heard the case may sit as a member of the court-martial at any rehearing, new trial, or other trial of the same case (ML, 130.62).

(ii) Military judge. The military judge at a rehearing may be the same military judge who presided over a previous trial of the same case. The existence or absence of a request for trial by military judge alone at a previous hearing has no effect on the composition of a court-martial on rehearing.

(iii) Accused's election. The accused at a rehearing or new or other trial has the same right to request enlisted members or trial by military judge alone as the accused would have at an original trial.

(3) Examination of record of former proceedings. No member may, upon a rehearing or upon a new or other trial, examine the record of any former proceedings in the same case except:

(i) when permitted to do so by the military judge after such matters have been received in evidence; or

(ii) that the president of a special court-martial without a military judge may examine that part of the record of former proceedings which relates to errors committed at the former proceedings when necessary to decide the admissibility of offered evidence or other questions of law, and such a part of the record may be read to the members when necessary for them to consider a matter subject to objection by any member.

(4) Sentence limitations.

(i) In general. Except as otherwise provided in paragraph (ii) of this paragraph, offenses on which a rehearing, new trial, or other trial has been ordered cannot be the basis for punishment in excess of or more severe than the legal sentence adjudged at the previous trial or hearing, as ultimately reduced by the convening or higher authority, unless the sentence prescribed for the offense is mandatory (ML, 130.62). When a rehearing on sentencing is combined with trial on new charges, the maximum punishment is the maximum punishment for the offenses being reheard as limited above plus the total maximum punishment under N.Y.R.C.M. 1003 for any new charges of which the accused has been found guilty. In the case of an "other trial" no sentence limitations apply if the original trial was invalid because a summary or special court-martial improperly tried an offense involving a mandatory punishment or one otherwise considered capital.

(ii) Pretrial agreement. If, after the earlier court-martial, the sentence was approved in accordance with a pretrial agreement and at the rehearing the accused fails to comply with the pretrial agreement, by failing to enter a plea of guilty or otherwise, the sentence as to the affected charges and specifications may include any otherwise lawful punishment not in excess of or more severe than that lawfully adjudged at the earlier court-martial.

(5) Definition. Other trial means another trial of a case in which the original proceedings were declared invalid because of lack of jurisdiction or failure of a charge to state an offense.

(k) Stipulations.

(1) In general. The parties may make an oral or written stipulation to any fact, the contents of a document, or the expected testimony of a witness.

(2) Authority to reject. The military judge may, in the interest of justice, decline to accept a stipulation.

(3) Requirements. Before accepting a stipulation in evidence, the military judge must be satisfied that the parties consent to its admission.

(4) Withdrawal. A party may withdraw from an agreement to stipulate or from a stipulation at any time before a stipulation is accepted; the stipulation may not then be accepted. After a stipulation has been accepted a party may withdraw from it only if permitted to do so in the discretion of the military judge.

(5) Effect of stipulations. Unless properly withdrawn or ordered stricken from the record, a stipulation of fact that has been accepted is binding on the court-martial and may not be contradicted by the parties thereto. The contents of a stipulation of expected testimony or of a document's contents may be attacked, contradicted, or explained in the same way as if the witness had actually so testified or the document had been actually admitted. The fact that the parties so stipulated does not admit the truth of the indicated testimony or document's contents, nor does it add anything to the evidentiary nature of the testimony or document. The Military Rules of Evidence apply to the contents of stipulation.

(6) Procedure. When offered, a written stipulation must be presented to the military judge and must be included in the record whether accepted or not. Once accepted, a written stipulation of expected testimony must be read to the members, if any, but cannot be presented to them; a written stipulation of fact or of a document's contents may be read to the members, if any, presented to them, or both. Once accepted, an oral stipulation must be announced to the members, if any.

(l) Joint and common trials. In joint trials and in common trials, each accused must be accorded the rights and privileges as if tried separately.

(m) Announcing personnel of the court-martial and accused.

(1) Opening sessions. When the court-martial is called to order for the first time in a case, the military judge must ensure that the following is announced:

(i) the order, including any amendment, by which the court-martial is convened;

(ii) the name, rank, and unit or address or the accused;

(iii) the name and rank of the military judge, if one has been detailed;

(iv) the names and ranks of the members, if any, who are present;

(v) the names and ranks of members who are absent, if presence of members is required;

(vi) the names and ranks (if any) of counsel who are present; and

(vii) the names and ranks (if any) of counsel who are absent;

(viii) the name and rank (if any) of any detailed court reporter.

(2) Later proceedings. When the court-martial is called to order after a recess or adjournment or after it has been closed for any reason, the military judge must ensure that the record reflects whether all parties and members who were present at the time of the adjournment or recess, or at the time the court-martial closed, are present.

(3) Additions, replacement, and absences of personnel. Whenever there is a replacement of the military judge, any member, or counsel, either through the appearance of new personnel or personnel previously absent or through the absence of personnel previously present, the military judge must ensure the record reflects the change and the reason for it.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.8