§132. Article 32. Preliminary hearing

A. Preliminary Hearing Required.

(1) No charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing, unless such hearing is waived by the accused.

(2) The purpose of the preliminary hearing shall be limited to the following:

(a) determining whether there is probable cause to believe an offense has been committed and the accused committed the offense;

(b) determining whether the convening authority has court-martial jurisdiction over the offense and the accused;

(c) considering the form of the charges; and

(d) recommending the disposition that should be made of the case.

B. Hearing officer. (1) A preliminary hearing conducted pursuant to Subsection A of this Section shall be conducted by an impartial judge advocate certified under Article 27(B) of this code whenever practicable or, in exceptional circumstances in which the interests of justice warrant, by an impartial hearing officer who is not a judge advocate. If the hearing officer is not a judge advocate, a judge advocate certified under Article 27(B) shall be available to provide legal advice to the hearing officer.

(2) Whenever practicable, the judge advocate or other hearing officer detailed to conduct a preliminary hearing shall be equal to or senior in grade to the military counsel detailed to represent the accused or the government at a preliminary hearing.

C. Report of results. At the conclusion of a preliminary hearing conducted pursuant to Subsection A of this Section, the judge advocate or other officer that conducted the preliminary hearing shall prepare a report that addresses the matters specified in Paragraph (A)(2) and Subsection F of this Section.

D. Rights of accused and victim. (1)The accused shall be advised of the charges against him and of his right to be represented by counsel at a preliminary hearing conducted pursuant to Subsection A of this Section. The accused has the right to be represented at the preliminary hearing as provided in Article 38 of this Code and in regulations prescribed under that Article.

(2) The accused may cross-examine witnesses who testify at the preliminary hearing and present additional evidence in defense and mitigation, relevant to the limited purposes of the hearing, as provided for in Paragraph (4) of this Subsection and Paragraph (A)(2) of this Section.

(3) A victim may not be required to testify at a preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of a preliminary hearing.

(4) The presentation of evidence and examination, including cross-examination, of witnesses at a preliminary hearing shall be limited to the matters relevant to the limited purpose of the hearing, as provided in Paragraph (A)(2) of this Section.

E. Recording of preliminary hearing. A preliminary hearing under Subsection A of this Section shall be recorded by a suitable recording device. The victim may request the recording and shall have access to the recording as prescribed by the Manual for Courts-Martial.

F. Effect of evidence of uncharged offense. If evidence adduced in a preliminary hearing conducted pursuant to 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 all of the following occur in that the accused:

(1) Is present at the preliminary hearing.

(2) Is informed of the nature of each uncharged offense considered.

(3) Is afforded the opportunities for representation, cross-examination, and presentation consistent with Subsection D of this Section.

G. Effect of violation. The requirements of this Section are binding on all persons administering this Chapter, but failure to follow the requirement does not constitute jurisdictional error.

H. Victim defined. For purposes of this Section, "victim" shall mean a person who:

(1) is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification being considered; and

(2) is named in one of the specifications.

Acts 1974, No. 621, §1; Acts 2017, No. 75, §1, eff. June 8, 2017.