Statutes, codes, and regulations
New York Codes, Rules and Regulations
Title 9 - EXECUTIVE DEPARTMENTSubtitle L - Division of Military and Naval AffairsChapter IV - Military Justice
Part 516 - Rules For Courts-martial
Section 516.9 - Trial procedure through findings

N.Y. Comp. Codes R. & Regs. tit. 9 § 516.9

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Current through Register Vol. 46, No. 50, December 11, 2024
Section 516.9 - Trial procedure through findings
(a) Opening session.
(1) Call to order. A court-martial is in session when the military judge so declares.
(2) Announcement of parties. After the court-martial is called to order, the presence or absence of the parties, military judge, and members are announced.
(3) Swearing reporter and interpreter. After the personnel have been accounted for as required in subparagraph (2) of this subdivision, the trial counsel announces whether the reporter and interpreter, if any is present, have been properly sworn. If not sworn, the reporter and interpreter, if any, are sworn.
(4) Counsel.
(i) Trial counsel. The trial counsel must announce the legal qualifications and status as to oaths of the members of the prosecution and whether any member of the prosecution has acted in any manner which might tend to disqualify the counsel.
(ii) Defense counsel. The detailed defense counsel must announce the legal qualifications and status as to oaths of the detailed members of the defense and whether any member of the defense has acted in any manner which might tend to disqualify that counsel. Any defense counsel not detailed must state that counsel's legal qualifications, and whether that counsel has acted in any manner which might tend to disqualify that counsel.
(iii) Disqualification. If it appears that any counsel may be disqualified, the military judge must decide the matter and take appropriate action.
(iv) Inquiry. The military judge must in open session:
(a) inform the accused of the rights to be represented by military counsel detailed to the defense; or by individual military counsel requested by the accused, if such military counsel is reasonably available; and by civilian counsel, either alone or in association with military counsel, if such civilian counsel is provided at no expense to the State;
(b) inform the accused that, if afforded individual military counsel, the accused may request retention of detailed counsel as associate counsel;
(c) ascertain from the accused whether the accused understands these rights;
(d) promptly inquire, whenever two or more accused in a joint or common trial are represented by the same detailed or individual military or civilian counsel, or by civilian counsel who are associated in the practice of law, with respect to such joint representation and must personally advise each accused of the right to effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the military judge must take appropriate measures to protect each accused's right to counsel; and
(e) ascertain from the accused by whom the accused chooses to be represented.
(v) Unsworn counsel. The military judge must administer the oath to any counsel not sworn.
(5) Presence of members. In cases in which a military judge has been detailed, the procedures described in N.Y.R.C.M. 901 through 910 must be conducted without members present in accordance with N.Y.R.C.M. 803.
(b) Disqualification of military judge.
(1) In general. Except as provided in paragraph (5) of this subdivision, a military judge must disqualify himself in any proceeding in which that military judge's impartiality might reasonably be questioned.
(2) Specific grounds. A military judge must also disqualify himself in the following circumstances:
(i) Where the military judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding.
(ii) Where the military judge has acted as counsel, investigating officer, legal officer, staff judge advocate, or convening authority as to an, offense charged or in the same case generally.
(iii) Where the military judge has been or will be a witness in the same case, is the accuser, has forwarded charges in the case with a personal recommendation as to disposition, or, except in the performance of duties as military judge in a previous trial of the same or a related case, has expressed an opinion concerning the guilt or innocence of the accused.
(iv) Where the military judge is not eligible to act because the military judge is not qualified under N.Y.R.C.M. 502(c) or not detailed under N.Y.R.C.M. 503(b).
(v) Where the military judge, the military judge's spouse, or a person within the third degree of relationship to either of them or a spouse of such person:
(a) is a party to the proceeding;
(b) is known by the military judge to have an interest, financial or otherwise, that could be substantially affected by the outcome of the proceeding; or
(c) is to the military judge's knowledge likely to be a material witness in the proceeding.
(3) Definitions. For the purposes of this rule the following words or phrases have the meaning indicated:
(i) proceeding includes pretrial, trial, post-trial, appellate review, or other stages of litigation.
(ii) the degree of relationship is calculated according to the civil law system.
(iii) "military judge" does not include the president of a special court-martial without a military judge.
(4) Procedure.
(i) The military judge must, upon motion of any party or sua sponte, decide whether he is disqualified.
(ii) Each party may question the military judge and present evidence regarding a possible ground for disqualification before the military judge decides the matter.
(iii) Except as provided under paragraph (5) of this subdivision, if the military judge rules that he is disqualified, he must excuse himself.
(5) Waiver. No military judge is to accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in paragraph (2) of this subdivision. Where the ground for disqualification arises only under paragraph (1) of this subdivision, waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.
(c) Accused's elections on composition of court-martial.
(1) Time of elections.
(i) Request for enlisted members. Before the end of the initial session under 130.39(a), ML or, in the absence of such a session, before assembly, the military judge must ascertain, as applicable, whether an enlisted accused elects to be tried by a court-martial including enlisted members (130.25[c][1], ML). The military judge may, as a matter of discretion permit the accused to defer requesting enlisted members until any time before assembly, which time may be determined by the military judge.
(ii) Request for trial by military judge alone. Before the end of the initial session under 130.39(a), ML or, in the absence of such a session, before assembly, the military judge must ascertain, as applicable, whether in a noncapital case, the accused requests trial by the military judge alone (130.16 [1][B], [2][c], ML). The accused may defer requesting trial by military judge alone until any time before assembly.
(2) Form of election.
(i) Request for enlisted members. A request for membership of the court-martial to include enlisted persons must be in writing and signed by the accused or shall be made orally on the record.
(ii) Request for trial by military judge alone. A request for trial by military judge alone must either be in writing and signed by the accused or be made orally on the record.
(3) Action on election.
(i) Request for enlisted members. Upon notice of a timely written request for enlisted members by an enlisted accused, the convening authority shall detail enlisted members to the court-martial in accordance with N.Y.R.C.M. 503 or prepare a detailed written statement explaining why physical conditions or military exigencies prevented this. The trial of the general issue cannot proceed until this is done.
(ii) Request for military judge alone. Upon receipt of a timely request for trial by military judge alone the military judge must:
(a) ascertain whether the accused has consulted with defense counsel and has been informed of the identity of the military judge and of the right to trial by members; and
(b) approve or disapprove the request, in the military judge's discretion.
(iii) Other. In the absence of a request for enlisted members or a request for trial by military judge alone, trial must be by a court-martial composed of officers.
(4) Right to withdraw request.
(i) Enlisted members. A request for enlisted members may be withdrawn, by the accused as a matter of right any time before the end of the initial session under 130.39(a), ML or, in the absence of such a session, before assembly.
(ii) Military judge. A request for trial by military judge alone may be withdrawn by the accused as a matter of right any time before it is approved, or, even after approval, if there is a change of the military judge.
(5) Untimely requests. Failure to request, or failure to withdraw a request for enlisted members or trial by military judge alone in a timely manner waives the right to submit or to withdraw such a request. However, the military judge may until the beginning of the introduction of evidence on the merits, as a matter of discretion, approve an untimely request or withdrawal of a request.
(6) Scope. For purposes of this subdivision, military judge does not include the president of a special court-martial without a military judge.
(d) Arraignment. Arraignment must be conducted in a court-martial session and consists of reading the charges and specification to the accused and calling on the accused to plead. The accused may waive the reading.
(e) Motions generally.
(1) Definitions and form. A motion is an application to the military judge for particular relief. Motions may be oral or, at the discretion of the military judge, written. A motion must state the grounds upon which it is made and must set forth the ruling or relief sought. The substance of a motion, not its form or designation, controls.
(2) Pretrial motions. Any defense, objection, or request which is capable of determination without the trial of the general issue of guilt may be raised before trial. The following must be raised before a plea is entered:
(i) defenses or objections based on defects (other than jurisdictional defects) in the preferral, forwarding, investigation, or referral of charges;
(ii) defenses or objections based on defects in the charges and specifications (other than any failure to show jurisdiction or to charge an offense, which objections must be resolved by the military judge at any time during the pendency of the proceedings);
(iii) motions to suppress evidence;
(iv) motions for discovery under N.Y.R.C.M. 701 or for production of witnesses or evidence;
(v) motions for severance of charges or accused; or
(vi) objections based on denial of request for individual military counsel or for retention of detailed defense counsel when individual military counsel has been granted.
(3) Burden of proof.
(i) Standard. Unless otherwise provided in this Chapter, the burden of proof on any factual issue the resolution of which is necessary to decide a motion is by a preponderance of the evidence.
(ii) Assignment.
(a) Except as otherwise provided in this Chapter the burden of persuasion on any factual issue the resolution of which is necessary to decide a motion is on the moving party.
(b) In the case of a motion to dismiss for lack of jurisdiction, denial of the right to speedy trial under N.Y.R.C.M. 707 or the running of the statute of limitations, the burden of persuasion upon the State.
(4) Ruling on motions. A motion made before pleas are entered must be determined before pleas are entered unless, if otherwise not prohibited by this Chapter, the military judge for good cause orders that determination be deferred until trial of the general issue or after findings, but no such determination be deferred if a party's right to review or appeal is adversely affected. Where factual issues are involved in determining a motion, the military judge must state the essential findings on the record.
(5) Effect of failure to raise defenses or objections. Failure by a party to raise defenses or objections or to make requests which must be made before pleas are entered under paragraph (2) of this subdivision constitutes waiver. The military judge for good cause shown may grant relief from the waiver. Other requests, defenses, or objections, except lack of jurisdiction or failure of a charge to allege an offense, must be raised before the court-martial is finally adjourned for that case and, unless otherwise provided in this Chapter, failure to do so constitutes waiver.
(6) Reconsideration. On request of any party or sua sponte, the military judge may reconsider any ruling, other than one amounting to a finding of not guilty, made by the military judge.
(7) Effect of final determinations. Any matter put in issue and finally determined by a court-martial, reviewing authority, or appellate court which had jurisdiction to determine the matter may not be disputed by the State in any other court-martial of the same accused, except that, when the offenses charged at one court-martial did not arise out of the same transaction as charged at the court-martial at which the determination was made, a determination of law and the application of law to the facts may be disputed by the State. This subdivision also applies to matters which were put in issue and finally determined in any other judicial proceeding in which the accused and the State were parties.
(8) Written motions. Written motions may be submitted to the military judge after referral and when appropriate they may be supported by affidavits, with service and opportunity to reply to the opposing party. Such motions may be disposed of before arraignment and without a session. Upon request, either party is entitled to a session under 130.39(a), ML to present oral argument or have an evidentiary hearing concerning the disposition of written motions.
(9) Service. Written motions are to be served on all other parties. Unless otherwise directed by the military judge, the service is to be made upon counsel for each party.
(10) Applications to convening authority. Except as otherwise provided in this Chapter, any matters which may be resolved upon motion without trial of the general issue of guilt may be submitted by a party to the convening authority before trial for decision. Submissions of such matter to the convening authority is not, except as otherwise provided in this Chapter, required, and is, in any event, without prejudice to the renewal of the issue by timely motion before the military judge.
(11) Production of statements on motion to suppress. Except as provided in this paragraph N.Y.R.C.M. 914 applies at a hearing on a motion to suppress evidence under subparagraph (2)(iii) of this subdivision. For purposes of this paragraph, a law enforcement officer is deemed a witness called by the State, and upon a claim of privilege the military judge must excise portions of the statement containing privileged matter.
(f) Motions for appropriate relief.
(1) In general. A motion for appropriate relief is a request for a ruling to cure a defect which deprives a party of a right or hinders a party from preparing for trial or presenting its case.
(2) Grounds for appropriate relief. The following may be requested by motion for appropriate relief. This list is not exclusive.
(i) Continuances. A continuance may be granted only by the military judge.
(ii) Record of denial of individual military counsel or of denial of request to retain detailed counsel when a request for individual military counsel was granted. If a request for military counsel was denied, which denial was upheld on appeal (if available) or if a request to retain detailed counsel was denied when the accused is represented by individual military counsel, and if the accused so requests, the military judge must ensure that a record of the matter is included in the record of trial, and may make a finding. The trial counsel may request a continuance to inform the convening authority of those findings. The military judge may not dismiss the charges or otherwise effectively prevent further proceedings based on this issue. However, the military judge may grant reasonable continuances until the requested military counsel can be made available if the unavailability results from temporary conditions or if the decision of unavailability is in the process of review in administrative channels.
(iii) Correction of defects in the investigation under 130.32, ML or pretrial advice.
(iv) Amendment of charges or specifications. A charge or specification may not be amended over the accused's objection unless the amendment is minor within the meaning of N.Y.R.C.M. 603(a).
(v) Severance of a duplicious specification into two or more specifications.
(vi) Bill of particulars. A bill of particulars may be amended at any time, subject to such conditions as justice permits.
(vii) Discovery and production of evidence and witnesses.
(viii) Relief from pretrial confinement in violation of N.Y.R.C.M. 305.
(ix) Severance of multiple accused, if it appears than an accused or the State is prejudiced by a joint or common trial. In a common trial, a severance must be granted whenever any accused, other than the moving accused, faces charges unrelated to those charged against the moving accused.
(x) Severance of offenses, but only to prevent manifest injustice.
(xi) Change of place of trial. The place of trial may be changed when necessary to prevent prejudice to the rights of the accused or for the convenience of the State if the rights of the accused are not prejudiced thereby.
(xii) Determination of multiplicity of offenses for sentencing purposes.
(xiii) Preliminary ruling on admissibility of evidence.
(xiv) Motions relating to mental capacity or responsibility of the accused.
(g) Motions to dismiss.
(1) In general. A motion to dismiss is a request to terminate further proceedings as to one or more charges and specifications on grounds capable of resolution without trial of the general issue of guilt.
(2) Grounds for dismissal. Grounds for dismissal include the following:
(i) Nonwaivable grounds. A charge or specification must be dismissed at any stage of the proceedings if:
(a) The court-martial lacks jurisdiction to try the accused for the offense; or
(b) The specification fails to state an offense.
(ii) Waivable grounds. A charge or specification must be dismissed upon motion made by the accused before the final adjournment of the court-martial in that case if:
(a) dismissal is required under N.Y.R.C.M. 707;
(b) the statute of limitations (ML, 130.43) has run, provided that if it appears that the accused is unaware of the right to assert the statute of limitations in bar of trial, the military judge shall inform the accused of this right;
(c) the accused has previously been tried by court-martial under the code or State civilian court for the same offense, provided that:
(1) no court-martial proceeding is a trial in the sense of this rule unless presentation of evidence on the general issue of guilty has begun;
(2) no court-martial proceeding which has been terminated under N.Y.R.C.M. 604(b) or N.Y.R.C.M. 915 bars later prosecution for the same offense or offenses, if so provided in those rules;
(3) no court-martial proceeding in which an accused has been found guilty of any charge or specification is a trial in the sense of this subdivision until the finding of guilty has become final after review of the case has been fully completed; and
(4) no court-martial proceeding which lacked jurisdiction to try the accused for the offense is a trial in the sense of this subdivision;
(d) prosecution is barred by:
(1) a pardon issued by the Governor;
(2) immunity from prosecution granted by a person authorized to do so;
(3) constructive condonation of desertion established by unconditional restoration to duty without trial of a deserter by a general court-martial convening authority who knew of the desertion; or
(4) prior punishment under 130.13 or 130.15, ML for the same offense, if that offense was minor.
(iii) Permissible grounds. A specification may be dismissed upon timely motion by the accused if:
(a) the specification is so defective that it substantially mislead the accused, and the military judge finds that, in the interest of justice, trial should proceed on remaining charges and specifications without undue delay; or
(b) the specification is multiplicious with another specification, is unnecessary to enable the prosecution to meet the exigencies of proof through trial, review, and appellate action, and should be dismissed in the interest of justice.
(h) [Reserved ]
(i) Capacity of the accused to stand trial by court-martial.
(1) In general. No person may be brought to trial by court-martial unless that person possesses sufficient mental capacity to understand the nature of the proceedings against that person and to conduct or cooperate intelligently in the defense of the case.
(2) Presumption of capacity. A person is presumed to have the capacity to stand trial unless the contrary appears.
(3) Determination at trial.
(i) Nature of issue. The mental capacity of the accused is an interlocutory question of fact.
(ii) Standard. Trial may proceed unless it is established by a preponderance of the evidence that the accused is presently suffering from a mental disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings against the accused or conduct or cooperate intelligently in the defense of the case.
(j) Pleas.
(1) Alternatives.
(i) In general. An accused may plead not guilty or guilty (130.45, ML). An accused may plead, by exceptions or by exceptions and substitutions, not guilty to an offense as charged, but guilty to an offense included in that offense. A plea of guilty may not be received as to an offense for which the death penalty may be adjudged by the court-martial.
(ii) Conditional pleas. With the approval of the military judge and the consent of the State, an accused may enter a conditional plea of guilty, reserving in writing the right, of further review or appeal, to review of the adverse determination of any specified pretrial motion. If the accused prevails on further review or appeal, the accused must be allowed to withdraw the plea of guilty. The trial counsel may consent on behalf of the State.
(2) Refusal to plead; irregular plea. If an accused fails or refuses to plead, or makes an irregular plea, the military judge must enter a plea of not guilty for the accused.
(3) Advice to accused. Before accepting a plea of guilty, the military judge must address the accused personally and inform the accused of, and determine that the accused understands, the following:
(i) the nature of the offense to which the plea is offered, the mandatory minimum penalty, if any, provided by law, and the maximum possible penalty provided by law;
(ii) in a general or special court-martial, if the accused is not represented by counsel, the accused has the right to be represented by counsel at every state of the proceedings;
(iii) that the accused has the right to plead not guilty or to persists in that plea if already made, and that the accused has the right to be tried by a court-martial, and that at such trial the accused has the right to confront and cross-examine witnesses against the accused, and the right against self- incrimination;
(iv) that if the accused pleads guilty, there will not be a trial of any kind as to those offenses to which the accused has so pleaded, so that by pleading guilty the accused waived the rights described in subparagraph (iii) of this paragraph; and
(v) that if the accused pleads guilty, the military judge will question the accused about the offenses to which the accused has pleaded guilty, and, if the accused answers these questions under oath, on the record, and in the presence of counsel, the accused's answers may later be used against the accused in a prosecution for perjury or false statement.
(4) Ensuring that the plea is voluntary. The military judge cannot accept a plea of guilty without first, by addressing the accused personally, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement under N.Y.R.C.M. 705. The military judge must also inquire whether the accused's willingness to plead guilty results from prior discussions between the convening authority, a representative of the convening authority, or trial counsel, and the accused or defense counsel.
(5) Determining accuracy of plea. The military judge cannot accept a plea of guilty without making such inquiry of the accused as will satisfy the military judge that there is a factual basis for the plea. The accused must be questioned under oath about the offenses.
(6) Plea agreement inquiry.
(i) In general. A plea agreement may not be accepted if it does not comply with N.Y.R.C.M. 705.
(ii) Notice. The parties must inform the military judge if a plea agreement exists.
(iii) Disclosure. If a plea agreement exists, the military judge must require disclosure of the entire agreement before the plea is accepted, provided that in trial before military judge alone the military judge ordinarily cannot examine any sentence limitation contained in the agreement until after the sentence of the court-martial has been announced.
(iv) Inquiry. The military judge must inquire to ensure:
(a) that the accused understands the agreement; and
(b) that the parties agree to the terms of the agreement.
(7) Findings. Findings based on a plea of guilty may be entered immediately upon acceptance of the plea at a session under ML, 130.39(a), unless:
(i) the plea is to a lesser included offense and the State intends to proceed to trial on the offense as charged; or
(ii) trial is by a special court-martial without a military judge, in which case the president of the court-martial may enter findings based on the pleas without a formal vote except when this subparagraph applies.
(8) Later action.
(i) Withdrawal by accused. If after acceptance of the plea but before the sentence is announced the accused requests to withdraw a plea of guilty and substitute a plea of not guilty or a plea of guilty to a lesser included offense, the military judge may as a matter of discretion permit the accused to do so.
(ii) Statements by accused inconsistent with plea. If after findings but before the sentence is announced the accused makes a statement to the court-martial, in testimony or otherwise, or presents evidence which is inconsistent with a plea of guilty on which a finding is based, the military judge must inquire into the providence of the plea. If, following such inquiry, it appears that the accused entered the plea improvidently or through lack of understanding of its meaning and effect a plea of not guilty must be entered as to the affected charges and specification.
(iii) Pretrial agreement inquiry. After sentence is announced the military judge must inquire into any parts of a pretrial agreement which were not previously examined by the military judge. If the military judge determines that the accused does not understand the material terms of the agreement, or that the parties disagree as to such terms, the military judge must conform, with the consent of the State, the agreement to the accused's under standing or permit the accused to withdraw the plea.
(9) Record of proceedings. Verbatim record of the guilty plea proceedings must be made in cases in which a verbatim record is required under N.Y.C.R.M. 1103. In other special courts- martial, a summary of the explanation and replies shall be included in the record of trial. As to summary courts-martial, see N.Y.R.C.M. 1305.
(10) Waiver. Except as provided in subparagraph (1)(ii) of this subdivision, a plea of guilty which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense(s) to which the plea was made.
(k) Assembly of the court-martial.
(1) The military judge must announce the assembly of the court-martial.
(l) Challenge of selection of members; examination and challenges of members.
(1) Pretrial matters.
(i) Questionnaires. Before trial the trial counsel may, and must upon request of the defense counsel, submit to each member written questions requesting the following information:
(a) date of birth;
(b) sex;
(c) race;
(d) marital status and sex, age, and number of dependents;
(e) home of record;
(f) civilian and military education, including, when available, major areas of study, name of school or institution, years of education, and degrees received;
(g) current unit to which assigned;
(h) past duty assignments;
(i) awards and decorations received;
(j) date of rank; and
(k) whether the member has acted as accuser, counsel, investigating officer, convening authority, or legal officer or staff judge advocate for the convening authority in the case, or has forwarded the charges with a recommendation as to disposition.

Additional information may be requested with the approval of the military judge. Each member's responses to the questions must be written and signed the by member.

(ii) Other materials. A copy of any written materials considered by the convening authority in selecting the members detailed to the court-martial must be provided to any party upon request, except that such materials pertaining solely to persons who were not selected for detail as members need not be provided unless the military judge, for good cause, so directs.
(2) Challenge of selection of members.
(i) Motion. Before the examination of members under paragraph (4) of this subdivision begins, or at the next session after a party discovered or could have discovered by the exercise of diligence, the grounds therefor, whichever is earlier, that party may move to stay the proceedings on the ground that members were selected improperly.
(ii) Procedure. Upon a motion under subparagraph (i) of this paragraph containing an offer of proof of matters which, if true, would constitute improper selection of members, the moving party is entitled to present evidence, including any written materials considered by the convening authority in selecting the members. Any other party may also present evidence on the matter. If the military judge determines that the members have been selected improperly, the military judge must stay any proceedings requiring the presence of members until members are properly selected.
(iii) Waiver. Failure to make a timely motion under this paragraph waives the improper selection unless it constitutes a violation of N.Y.R.C.M. 501(a), 502(a)(1), or 503(a)(2).
(3) Stating grounds for challenge. The trial counsel must state any ground for challenge for cause against any member of which the trial counsel is aware.
(4) Examination of members. The military judge may permit the parties to conduct the examination of members or may personally conduct the examination. In the latter event the military judge is to permit the parties to supplement the examination by such further inquiry as the military judge deems proper or the military judge must submit to the members such additional questions by the parties as the military judge deems proper. A member may be questioned outside the presence of other members when the military judge so directs.
(5) Evidence. Any party may present evidence relating to whether grounds for challenge exist against a member.
(6) Challenges and removal for cause (see ML, 130.42).
(i) Grounds. A member must be excused for cause whenever it appears that the member:
(a) is not competent to serve as a member under ML, 130.25(a), (b) or (c);
(b) has not been properly detailed as a member of the court-martial;
(c) is an accuser as to any offense charged;
(d) will be a witness in the court-martial;
(e) has acted as counsel for any party as to any offense charged;
(f) has been an investigating officer as to any offense charged;
(g) has acted in the same case as convening authority or as the legal officer or staff judge advocate to the convening authority;
(h) will act in the same case as reviewing authority or as the legal officer or staff judge advocate to the reviewing authority;
(i) has forwarded charges in the case with a personal recommendation as to disposition;
(j) upon a rehearing or new or other trial of the case, was a member of the court-martial which heard the case before;
(k) is junior to the accused in grade or rank, unless it is established that this could not be avoided;
(l) is in arrest or confinement;
(m) has informed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged;
(n) should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.
(ii) When made.
(a) Upon completion of examination. Upon completion of any examination under paragraph (4) of this subdivision and the presentation of evidence, if any, on the matter, each party must state any challenges for cause it elects to make.
(b) Other times. A challenge for cause may be made at any other time during trial when it becomes apparent that a ground for challenge may exist. Such examination of the member and presentation of evidence as may be necessary may be made in order to resolve the matter.
(iii) Procedure. Each party may make challenges outside the presence of the members. The party making a challenge must state the grounds for it. Ordinarily the trial counsel enters any challenges for cause before the defense counsel. The military judge rules finally on each challenge. When a challenge for cause is granted, the member concerned is excused. The burden of establishing that grounds for a challenge exist is upon the party making the challenge. A member successfully challenged must be excused.
(iv) Waiver. The grounds for challenge is clause (i)(a) of this paragraph may not be waived except that membership of enlisted members in the same unit as the accused may be waived. Membership of enlisted members in the same unit as the accused and any other ground for challenge is waived if the party knew of or could have discovered by the exercise of diligence the ground for challenge and failed to raise it in a timely manner. Notwithstanding the absence of a challenge or waiver of challenge by the parties, the military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie. When a challenge for cause has been denied, failure by the challenging party to exercise a peremptory challenge against any member constitutes waiver of further consideration of the challenge upon later review. However, when a challenge for cause is denied, a peremptory challenge by the challenging party against any member preserves the issue for later review, provided that when the member who was unsuccessfully challenged for cause is peremptorily challenged by the same party, that party must state that it would have exercised its peremptory challenge against another member is the challenge for cause had been granted.
(7) Peremptory challenges.
(i) Procedure. Each party may challenge one member peremptorily (130.41[b], ML). Any member so challenged must be excused. No party may be required to exercise a peremptory challenge before the examination of members and determination of any challenges for cause has been completed. Ordinarily the trial counsel enters any peremptory challenge before the defense.
(ii) Waiver. Failure to exercise a peremptory challenge when properly called upon to do so waives the right to make such a challenge. The military judge may, for good cause shown, grant relief from the waiver, but a peremptory challenge may not be made after the presentation of evidence before the members has begun. However, nothing in this paragraph bars the exercise of a previously unexercised peremptory challenge against a member newly detailed under N.Y.R.C.M. 505(c)(2)(B), even if presentation of evidence on the merits has begun.
(8) Special courts-martial without a military judge. In a special court-martial without a military judge, the procedures in this subdivision apply, except that challenges must be made in the presence of the members and a ruling on any challenge for cause must be decided by a majority vote of the members upon secret written ballot in closed session. The challenged member cannot be present at the closed session at which the challenge is decided. A tie vote on a challenge disqualifies the member challenged. Before closing, the president must give such instructions as may be necessary to resolve the challenge. Each challenge must be decided separately, and all unexcused members except the challenged member must participate. When only three members are present and one is challenged, the remaining two may decide the challenge. When the president is challenged, the next senior member acts as president for purposes of deciding the challenge.
(9) Definitions.
(i) For purposes of this subdivision, military judge does not include the president of a special court-martial without a military judge.
(ii) For purposes of this subdivision witness includes one who testifies at a court-martial and anyone whose declaration is received in evidence for any purpose, including written declarations made by affidavit or otherwise.
(iii) For purpose of this subdivision, investigating officer includes any person who has investigated charges under N.Y.R.C.M. 405 and any person who as counsel for a member of a court of inquiry, or otherwise personally has conducted an investigation of the general matter involving the offenses charged.
(m) Presentation of the case on the merits.
(1) Preliminary instructions. The military judge may give such preliminary instructions as may be appropriate.
(2) Opening statements. Each party may make one opening statement to the court-martial before presentation of evidence has begun. The defense may elect to make its statement after the prosecution has rested, before the presentation of evidence for the defense. The military judge may, as a matter of discretion, permit the parties to address the court-martial at other times.
(3) Presentation of evidence. Each party has full opportunity to present evidence.
(i) Order of presentation. Ordinarily the following sequence is followed:
(a) presentation of evidence for the prosecution;
(b) presentation of evidence for the defense;
(c) presentation of prosecution evidence in rebuttal;
(d) presentation of defense evidence in surrebuttal;
(e) additional rebuttal evidence in the discretion of the military judge; and
(f) presentation of evidence requested by the military judge or members.
(ii) Taking testimony. The testimony of witnesses is taken orally in open session, unless otherwise provided in this Chapter.
(iii) Views and inspections. The military judge may, as a matter of discretion, permit the court-martial to view or inspect premises or a place or an article or object. Such a view or inspection may take place only in the presence of all parties, the members (if any), and the military judge. A person familiar with the scene may be designated by the military judge to escort the court-martial. Such person must perform the duties of escort under oath. The escort cannot testify, but may point out particular features prescribed by the military judge. Any statement made at the view or inspection by the escort, a party, the military judge, or any member must be made part of the record.
(iv) Evidence subject to exclusion. When offered evidence would be subject to exclusion upon objection, the military judge may, as a matter of discretion, bring the matter to the attention of the parties and may, in the interest of justice, exclude the evidence without an objection by a party.
(v) Reopening case. The military judge may, as a matter of discretion, permit a party to reopen its case after it has rested.
(n) Production of statements of witnesses.
(1) Motion for production. After a witness other than the accused has testified on direct examination, the military judge, on motion of a party who did not call the witness, must order the party who called the witness to produce, for examination and use by the moving party, any statement of the witness that relates to the subject matter concerning which the witness has testified, and that is:
(i) in the case of a witness called by the trial counsel, in the possession of the State; or
(ii) in the case of a witness called by the defense, in the possession of the accused or defense counsel.
(2) Production of entire statement. If the entire contents of the statement relate to the subject matter concerning which the witness has testified, the military judge must order that the statement be delivered to the moving party.
(3) Production of excised statement. If the party who called the witness claims that the statement contains matter that does not relate to the subject matter concerning which the witness has testified, the military judge must order that it be delivered to the military judge. Upon inspection, the military judge must excise the portions of the statement that do not relate to the subject matter concerning which the witness has testified, and must order that the statement, with such material excised, be delivered to the moving party. Any portion of a statement that is withheld from an accused over objection must be preserved by the trial counsel, and, in the event of a conviction, must be made available to the reviewing authorities for the purpose of determining the correctness of the decision to excise the portion of the statement.
(4) Recess for examination of the statement. Upon delivery of the statement to the moving party, the military judge may recess the trial for the examination of the statement and preparation for its use in the trial.
(5) Remedy for failure to produce statement. If the other party elects not to comply with an order to deliver a statement to the moving party, the military judge must order that the testimony of the witness be disregarded by the trier of fact and that the trial proceed, or, if it is the trial counsel who elects not to comply, must declare a mistrial if required in the interest of justice.
(6) Definition. As used in this Part, a statement of a witness means:
(i) a written statement made by the witness that is signed or otherwise adopted or approved by the witness;
(ii) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or
(iii) a statement, however taken or recorded, or a transcription thereof, made by the witness to a State grand jury.
(o) Mistrial.
(1) In general. The military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings. A mistrial may be declared as to some or all charges, and as to the entire proceedings or as to only the proceedings after findings.
(2) Procedure. On motion for a mistrial or when it otherwise appears that grounds for a mistrial may exist, the military judge must inquire into the views of the parties on the matter and then decide the matter as an interlocutory question.
(3) Effect of declaration of mistrial.
(i) Withdrawal of charges. A declaration of a mistrial has the effect of withdrawing the affected charges and specifications from the court-martial.
(ii) Further proceedings. A declaration of a mistrial does not prevent trial by another court-martial on the affected charges and specifications except when the mistrial was declared after jeopardy attached and before findings, and the declaration was:
(a) an abuse of discretion and without the consent of the defense; or
(b) the direct result of intentional prosecutorial misconduct designed to necessitate a mistrial.
(p) Defenses.
(1) In general. As used in this subdivision defenses includes any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly or partially, criminal responsibility for those acts.
(2) Burden of proof. Except for the defense of lack of mental responsibility, once a defense under this subdivision is placed in issue by some evidence, the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist. The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.
(3) Justification. A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful.
(4) Obedience to orders. It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.
(5) Self-defense.
(i) Certain assaults. It is a defense to any assault punishable under ML, 130.86 or 130.87 that the accused:
(a) apprehended, upon reasonable grounds, that bodily harm was about to be inflicted wrongfully on the accused; and
(b) believed that the force the accused used was necessary for protection against bodily harm.
(ii) Loss of right to self-defense. The right to self-defense is lost and the defense described in subparagraph (i)(1) of this paragraph does not apply if the accused was an aggressor, engaged in mutual combat, or provoked the attack which gave rise to the apprehension, unless the accused had withdrawn in good faith after the aggression, combat, or provocation and before the offense alleged occurred.
(iii) Defense of another. The principle of self-defense under subparagraphs (i) and (ii) of this paragraph apply to defense of another. It is a defense to any assault under ML, 130.86 or 130.87 that the accused acted in defense of another, provided that the accused may not use more force than the person defended was lawfully entitled to use under the circumstances.
(6) Accident. A death, injury, or other event which occurs as the unintentional and unexpected result of doing a lawful act in a lawful manner is an accident and excusable.
(7) Entrapment. It is a defense that the criminal design or suggestion to commit the offense originated in the State and the accused had no predisposition to commit the offense.
(8) Coercion or duress. It is a defense to any offense under the code that the accused's participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense does not apply.
(9) Inability. It is a defense to refusal or failure to perform a duty that the accused was, through no fault of the accused, not physically or financially able to perform the duty.
(10) Ignorance or mistake of fact. Except as otherwise provided in this paragraph, it is a defense to an offense that the accused held, as a result of ignorance or mistake, an incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them, the accused would not be guilty of the offense. If the ignorance or mistake goes to an element requiring premeditation, specific intent, willfulness, or knowledge of a particular fact, the ignorance or mistake need only have existed in the mind of the accused. If the ignorance or mistake goes to any other element requiring only general intent or knowledge, the ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. However, if the accused's knowledge or intent is immaterial as to an element, then ignorance or mistake is not a defense.
(11) Lack of mental responsibility.
(i) Lack of mental responsibility. It is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts. Mental disease or defect does not otherwise constitute a defense.
(ii) Partial mental responsibility. A mental condition not amounting to a general lack of mental responsibility under subparagraph (i) of this paragraph but which produces a lack of mental ability at the time of the offense to possess actual knowledge or to entertain a specific intent or a premeditated design to kill is a defense to an offense having one of these states of mind as an element.
(iii) Procedure.
(a) Presumption. The accused is presumed to have been mentally responsible at the time of the alleged offense. This presumption continues until some evidence to the contrary is admitted.
(b) Inquiry. If a question is raised concerning the mental responsibility of the accused, the military judge shall rule finally whether to direct an inquiry under N.Y.R.C.M. 706. In a special court-martial without a military judge, the president must rule finally except to the extent that the question is one of fact, in which case the president rules subject to objection by any member.
(c) Determination. The issue or mental responsibility is not an interlocutory question.
(12) State civilian defenses. Where an appellate court of this State has made a final determination affecting the criminal law of this State with respect to matters of substantive law relating to any of the defenses contained in this section; that determination is, if applicable to the particular case, binding upon the court-martial.
(13) Not defenses generally.
(i) Ignorance or mistake of law. Ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense.
(ii) Voluntary intoxication. Voluntary intoxication, whether caused by alcohol or drugs, is not a defense. However, evidence of any degree of voluntary intoxication may be introduced for the purpose of raising a reasonable doubt as to the existence of actual knowledge, specific intent, willfulness, or a premeditated design to kill, if actual knowledge, specific intent, willfulness, or premeditated design to kill is an element of the offense.
(q) Motion for a finding of not guilty.
(1) In general. The military judge, on motion by the accused or sua sponte,must enter a finding of not guilty of one or more offenses charged after the evidence on either side is closed and before findings on the general issue of guilt are announced if the evidence is insufficient to sustain a conviction of the offense affected. If a motion for a finding of not guilty at the close of the State's case is denied, the defense may offer evidence on that offense without having reserved the right to do so.
(2) Form of motion. The motion must specifically indicate wherein the evidence is insufficient.
(3) Procedure. Before ruling on a motion for a finding of not guilty, whether made by counsel or sua sponte, the military judge must give each party an opportunity to be heard on the matter.
(4) Standard. A motion for a finding of not guilty is granted only in the absence of some evidence which, together with all reasonable inferences and applicable presumptions, could reasonably rend to establish every essential element of an offense charged. The evidence must be viewed in the light most favorable to the State, without an evaluation of the credibility of witnesses.
(5) Motion as to greater offense. A motion for a finding of not guilty may be granted as to part of a specification and, if appropriate, the corresponding charge, as long as a lesser offense charged is alleged in the portion of the specification as to which the motion is not granted. In such cases, the military judge must announce that a finding of not guilty has been granted as to specified language in the specification and, if appropriate, corresponding charge. In cases before members, the military judge must instruct the members accordingly, so that any findings later announced will not be inconsistent with the granting of the motion.
(6) Effect of ruling. A ruling granting a motion for a finding of not guilty is final when announced and may not be reconsidered. Such a ruling is a finding of not guilty of the affected specification, or affected portion thereof, and, when appropriate, of the corresponding charge. A ruling denying a motion for a finding of not guilty may be reconsidered at any time before findings on the general issue of guilt are announced.
(7) Effect of denial on review. If all the evidence admitted before findings, regardless by whom offered, is sufficient to sustain findings of guilty, the findings need not be set aside upon review solely because the motion for finding of not guilty should have been granted upon the state of the evidence when it was made.
(r) Findings.
(1) General findings. The general findings of a court-martial state whether the accused is guilty of each offense charged (ML, 130.53). If two or more accused are tried together, separate findings as to each must be made (ML, 130.51).
(i) As to a specification. General findings as to a specification may be: guilty; guilty with exceptions, with or without substitutions, not guilty of the exceptions but guilty of any substitutions; not guilty only by reason of lack of mental responsibility; or not guilty. Exceptions and substitution may not be used to substantially change the nature of the offense or to increase the seriousness of the offense or the maximum punishment for it.
(ii) As to a charge. General findings as to a charge may be: guilty; not guilty, but guilty of a violation of section ______; not guilty only by reason of lack of mental responsibility; or not guilty.
(2) Special findings. In a trial by court-martial composed of military judge alone, the military judge must make special findings upon request by any party (ML, 130.51). Special findings may be requested only as to matters of fact reasonably in issue as to an offense and need be made only as to offenses of which the accused was found guilty. Special findings may be requested at any time before general findings are announced. Only one set of special findings may be requested by a party in a case. If the request is for findings on specific matters, the military judge may require that the request be written. Special findings may be entered orally on the record at the court-martial or in writing during or after the court-martial, but in any event shall be made before authentication and included in the record of trial.
(3) Basis of findings. Findings may be based on direct or circumstantial evidence. Only matters properly before the court-martial on the merits of the case may be considered. A finding of guilty of any offense may be reached only when the factfinder is satisfied that guilt has been proved beyond a reasonable doubt.
(s) Argument by counsel on findings.
(1) In general. After the closing the evidence, trial counsel must be permitted to open the argument. The defense counsel must be permitted to reply. Trial counsel may reply in rebuttal.
(2) Contents. Arguments may properly include reasonable comment on the evidence in the case, including inferences to be drawn therefrom, in support of a party's theory of the case.
(3) Waiver of objection to improper argument. Failure to object to improper argument before the military judge begins to instruct the members on findings waives the objection.
(t) Instructions on findings.
(1) In general. The military judge must give the members appropriate instructions on findings (ML, 130.51).
(2) When given. Instructions on findings must be given after arguments by counsel and before the members close to deliberate on findings, but the military judge may, upon request of the members, any party, or sua sponte, give additional instructions at a later time.
(3) Requests for instructions. At the close of the evidence or at such other time as the military judge may permit, any party may request that the military judge instruct the members on the law as set forth in the request. The military judge may require the requested instruction to be written. Each party must be given the opportunity to be heard on any proposed instruction on findings before it is given. The military judge must inform the parties of the proposed action on such requests before their closing arguments.
(4) How given. Instructions on findings must be given orally on the record in the presence of all parties and the members. Written copies of the instructions, or, unless a party objects, portions of them, may also be given to the members for their use during deliberations.
(5) Required instructions. Instructions on findings must include:
(i) a description of the elements of each offense charged, unless findings on such offenses are unnecessary because they have been entered pursuant to a plea of guilty;
(ii) a description of the elements of each lesser included offense in issue;
(iii) a description of any special defense under N.Y.R.C.M. 915 in issue;
(iv) a direction that only matters properly before the court-martial may be considered;
(v) a charge that:
(a) the accused must be presumed to be innocent until the accused's guilt is established by legal and competent evidence beyond reasonable doubt;
(b) in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and the accused must be acquitted;
(c) if, when a lesser included offense is in issue, there is a reasonable doubt as to the degree of guilt of the accused, the finding must be in a lower degree as to which there is no reasonable doubt; and
(d) the burden of proof to establish the guilt of the accused is upon the State. [When the issue of lack of mental responsibility is raised, at:] however, the burden of proving the defense of lack of mental responsibility by clear and convincing evidence is upon the accused;
(vi) directions on the procedures under N.Y.R.C.M. 920 for deliberations and voting; and
(vii) such other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given.
(6) Waiver. Failure to object to an instruction or to omission of an instruction before the members close to deliberate waives the objection in the absence of plain error. The military judge may require the party objecting to specify in what respect the instructions given were improper. The parties must be given the opportunity to be heard on any objection outside the presence of the members.
(u) Deliberations and voting on findings.
(1) In general. After the military judge instructs the members on findings, the members must deliberate and vote in a closed session. Only the members shall be present during deliberations and voting. Superiority in rank cannot be used in any manner in an attempt to control the independence of members in the exercise of their judgement (ML, 130.37, 130.51 and 130.52).
(2) Deliberations. Deliberations properly include full and free discussion of the merits of the case. Unless otherwise directed by the military judge, members may take with them in deliberations their notes, if any, any exhibits admitted in evidence, and any written instructions. Members may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced. The military judge may, in the exercise of discretion, grant such request.
(3) Voting.
(i) Secret bills. Voting on the findings for each charge and specification must be by secret written ballot. All members present must vote.
(ii) Number or votes required to convict. A finding of guilty results only if at least two-thirds of the members present vote for a finding of guilty.
(iii) Acquittal. If fewer than two-thirds of the members present vote for a finding of guilty, a finding of not guilty has resulted as to the charge or specification on which the vote was taken.
(iv) Not guilty only by reason of lack of mental responsibility. When the defense of lack of mental responsibility is an issue under N.Y.R.C.M. 916(k)(1), the members shall first vote on whether the prosecution has proven the elements of the offense beyond a reasonable doubt. If at least two-thirds of the members present vote for a finding of guilty, then the members shall vote on whether the accused has proven lack of mental responsibility. If a majority of the members present concur that the accused has proven lack of mental responsibility by clear and convincing evidence, a finding of not guilty only by reason of lack of mental responsibility results. If the vote on lack of mental responsibility does not result in a finding of not guilty only by reason of lack of mental responsibility, then the defense of lack of mental responsibility has been rejected and the finding of guilty stands.
(v) Included offenses. Members cannot vote on a lesser included offense unless a finding of not guilty of the offense charged has been reached. If a finding of not guilty of an offense charged has been reached the members must vote on each included offense on which they have been instructed, in order of severity beginning with the most severe. The members must continue to vote on each included offense on which they have been instructed until a finding of guilty results or findings of not guilty have been reached as to each such offense.
(vi) Procedure for voting.
(a) Order. Each specification must be voted on separately before the corresponding charge. The order of voting on several specifications under a charge or on several charges is determined by the president unless a majority of the members object.
(b) Counting votes. The junior member collects the ballots and counts the votes. The president checks the count and informs the other members of the result.
(4) Action after findings are reached. After the members have reached findings on each charge and specification before them, the court-martial must be opened and the president shall inform the military judge that findings have been reached. The military judge may, in the presence of the parties, examine any writing which the president intends to read to announce the sentence and may assist the members in putting the findings in proper form. Neither that writing nor any oral or written clarification or discussion concerning it constitutes announcement of the findings.
(v) Announcement of findings.
(1) In general. Findings shall be announced in the presence of all parties promptly after they have been determined (ML, 130.53).
(2) Findings by members. The president must announce the findings by the members. If a finding is based on a plea of guilty, the president must so state.
(3) Findings by military judge. The military judge must announce the findings when trial is by military judge alone or when findings may be entered under N.Y.R.C.M. 910(g).
(4) Erroneous announcement. If an error was made in the announcement of the findings of the court-martial, the error may be corrected by a new announcement in accordance with this subdivision. The error must be discovered and the new announcement made before the final adjournment of the court-martial in the case.
(5) Polling prohibited. Except as provided in Mil. R. Evid. 606, members may not be questioned about their deliberations and voting.
(w) Impeachment of findings. Findings which are proper on their face may be impeached only when extraneous prejudicial information was improperly brought to the attention of a member, outside influence was improperly brought to bear upon any member, or unlawful command influence was brought to bear upon any member.
(x) Reconsideration of findings.
(1) Time for reconsideration. Members may reconsider any finding reached by them before such finding is announced in open session. Members may reconsider any finding of guilty reached by them at any time before announcement of the sentence.
(2) Procedure. Any member may propose that a finding be reconsidered. If such a proposal is made in a timely manner the question whether to reconsider shall be determined in closed session by secret written ballot. Any finding of not guilty shall be reconsidered if a majority vote for reconsideration. Any finding of guilty shall be reconsidered if more than one-third of the members vote for reconsideration. Any finding of not guilty only by reason of lack of mental responsibility shall be reconsidered on the issue of the finding of guilty of the elements if more than one-third of the members vote for reconsideration, and on the issue of mental responsibility if a majority vote for reconsideration. If a vote to reconsider a finding succeeds, the procedures in N.Y.R.C.M. 920 shall apply.
(3) Military judge sitting alone. In trial by military judge alone, the military judge may reconsider any finding of guilty at any time before announcement of sentence.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.9