N.Y. Comp. Codes R. & Regs. tit. 9 § 517.1

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

Section 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.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 517.1