New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle L - Division of Military and Naval Affairs › Chapter IV - Military Justice › Part 517 - Military Rules Of Evidence › Section 517.3 - Exclusionary rules and related matters concerning self-incrimination, search and seizure, and eyewitness identification

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Privilege concerning compulsory
				  self-incrimination.
(1) General rule. The
				  privileges against self-incrimination provided by the Fifth Amendment to the
				  Constitution of the United States and Military Law, section 130.31 are
				  applicable only to evidence of a testimonial or communicative nature. The
				  privilege most beneficial to the individual asserting the privilege shall be
				  applied.
(2) Standing.
(i) In general. The privilege of a witness to
				  refuse to respond to a question the answer to which may tend to incriminate the
				  witness is a personal one that the witness may exercise or waive at the
				  discretion of the witness.
(ii)
				  Judicial advice. If a witness who is apparently uninformed of the privileges
				  under this subdivision appears likely to incriminate himself or herself, the
				  military judge should advise the witness of the right to decline to make any
				  answer that might tend to incriminate the witness and that any
				  self-incriminating answer the witness might make can later be used as evidence
				  against the witness. Counsel for any party or for the witness may request the
				  military judge to so advise a witness provided that such a request is made out
				  of the hearing of the witness and, except in a special court-martial without a
				  military judge, the members. Failure to so advise a witness does not make the
				  testimony of the witness inadmissible.
(3) Exercise of the privilege. If a witness
				  states that the answer to a question may tend to incriminate him or her, the
				  witness may not be required to answer unless facts and circumstances are such
				  that no answer the witness might make to the question could have the effect of
				  tending to incriminate the witness or that the witness has, with respect to the
				  question, waived the privilege against self-incrimination. A witness may not
				  assert the privilege if the witness is not subject to criminal penalty as a
				  result of an answer by reason of immunity, running of the statute of
				  limitations, or similar reason.
(i) Immunity
				  generally. The minimum grant of immunity adequate to overcome the privilege is
				  that which under either N.Y.R.C.M. 704 or other proper authority provides that
				  neither the testimony of the witness nor any evidence obtained from the
				  testimony may be used against the witness at any subsequent trial other than in
				  a prosecution for perjury, false swearing, the making of a false official
				  statement, or failure to comply with an order to testify after the military
				  judge has ruled that the privilege may not be asserted by reason of
				  immunity.
(ii) Notification of
				  immunity or leniency. When a prosecution witness before a court-martial has
				  been granted immunity or leniency in exchange for testimony, the grant shall be
				  reduced to writing and shall be served on the accused prior to arraignment or
				  within a reasonable time before the witness testifies. If notification is not
				  made as required by this subdivision, the military judge may grant a
				  continuance until notification is made, prohibit or strike the testimony of the
				  witness, or enter such other order as may be required.
(4) Waiver by a witness. A witness who
				  answers a question without having asserted the privilege against
				  self-incrimination and thereby admits a self-incriminating fact may be required
				  to disclose all information relevant to that fact except when there is a real
				  danger of further self-incrimination. This limited waiver of the privilege
				  applies only at the trial in which the answer is given, does not extend to a
				  rehearing or new or other trial, and is subject to Mil. R. Evid.
				  608(b).
(5) Waiver by the accused.
				  When an accused testifies voluntarily as a witness, the accused thereby waives
				  the privilege against self-incrimination with respect to the matters concerning
				  which he or she so testifies. If the accused is on trial for two or more
				  offenses and on direct examination testifies concerning the issue of guilt or
				  innocence as to only one or some of the offenses, the accused may not be
				  cross-examined as to guilt or innocence with respect to the other offenses
				  unless the cross-examination is relevant to an offense concerning which the
				  accused has testified. This waiver is subject to Mil. R. Evid.
				  608(b).
(6) Effect of claiming the
				  privilege.
(i) Generally. The fact that a
				  witness has asserted the privilege against self-incrimination in refusing to
				  answer a question cannot be considered as raising any inference unfavorable to
				  either the accused or the government.
(ii) On cross-examination. If a witness
				  asserts the privilege against self-incrimination on cross-examination, the
				  military judge, upon motion, may strike the direct testimony of the witness in
				  whole or in part, unless the matters to which the witness refuses to testify
				  are purely collateral.
(iii)
				  Pretrial. The fact that the accused during official questioning and in exercise
				  of rights under the Fifth Amendment to the Constitution of the United States or
				  Military Law, section 130.31, remained silent, refused to answer a certain
				  question, requested counsel, or requested that the questioning be terminated is
				  inadmissible against the accused.
(7) Instructions. When the accused does not
				  testify at trial, defense counsel may request that the members of the court be
				  instructed to disregard that fact and not to draw any adverse inference from
				  it. Defense counsel may request that the members not be so instructed. Defense
				  counsel's election shall be binding upon the military judge except that the
				  military judge may give the instruction when the instruction is necessary in
				  the interests of justice.