ARTICLE 32. Preliminary hearing required before referral to general court-martial.
A. In general.
1.a.Except as provided in subparagraph b of this paragraph, a preliminary hearing shall be held before referral of charges and specifications for trial by general court-martial. The preliminary hearing shall be conducted by an impartial hearing officer, detailed by the convening authority in accordance with subsection B of this section.
2. The purpose of the preliminary hearing shall be limited to determining the following:
B. Hearing officer.
1. A preliminary hearing under this section shall be conducted by an impartial hearing officer, who shall be a judge advocate who is certified under paragraph 2 of subsection B of Section 827 of this title (Article 27, subsection B, paragraph 2).
2. Whenever practicable, the hearing officer shall be equal in grade or senior in grade to military counsel who are detailed to represent the accused or the government at the preliminary hearing.
C. Report to convening authority. After a preliminary hearing under this section, the hearing officer shall submit to the convening authority a written report, accompanied by a recording of the preliminary hearing as required under subsection E of this section, that includes the following:
1. For each specification, a statement of the reasoning and conclusions of the hearing officer with respect to determinations under paragraph 2 of subsection A of this section, including a summary of relevant witness testimony and documentary evidence presented at the hearing and any observations of the hearing officer concerning the testimony of witnesses and the availability and admissibility of evidence at trial;
2. Recommendations for any necessary modifications to the form of the charges or specifications;
3. An analysis of any additional information submitted after the hearing by the parties or by a victim of an offense that, under such rules as the Adjutant General may promulgate, is relevant to disposition under Sections 830 and 834 of this title (Articles 30 and 34); and
4. A statement of action taken on evidence adduced with respect to uncharged offenses, as described in subsection F of this section.
D. Rights of accused.
1. The accused shall be advised of the charges against the accused and of the accused's right to be represented by counsel at the preliminary hearing under this section. The accused has the right to be represented at the preliminary hearing as provided in Section 838 of this title (Article 38) and in regulations prescribed under that article.
2. The accused may cross-examine witnesses who testify at the preliminary hearing and present additional evidence that is relevant to the issues for determination under paragraph 2 of subsection A of this section.
3. The presentation of evidence and examination, including cross-examination, of witnesses at a preliminary hearing shall be limited to the matters relevant to determinations under paragraph 2 of subsection A of this section.
E. Effect of evidence of uncharged offense. If evidence adduced in a preliminary hearing conducted under subsection A of this section indicates that the accused committed an uncharged offense, the hearing officer may consider the subject matter of that offense without the accused having first been charged with the offense if the accused:
1. Is present at the preliminary hearing;
2. Is informed of the nature of each uncharged offense considered; and
3. Is afforded the opportunities for representation, cross-examination, and presentation consistent with subsection D of this section.
F. Effect of violation. The requirements of this section are binding on all persons administering the Code, but failure to follow the requirements does not constitute jurisdictional error. A defect in a report under subsection C of this section is not a basis for relief if the report is in substantial compliance with subsection C of this section.
Added by Laws 2019, c. 408, § 39, eff. Oct. 1, 2019.