§ 29:132 — Article 32. Preliminary hearing required before referral to general court-martial

§132. Article 32. Preliminary hearing required before referral to general court-martial
A. Preliminary hearing required. (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 C of this Article.
(b) Under regulations prescribed under Article 36 of this Code, a preliminary hearing
need not be held if the accused submits a written waiver to the convening authority and the
convening authority determines a hearing is not required.
(2) The purpose of the preliminary hearing shall be limited to determining the
following:
(a) Whether or not the specification alleges an offense under this Chapter;
(b) Whether or not there is probable cause to believe that the accused committed the
offense charged;
(c) Whether or not the convening authority has court-martial jurisdiction over the
offense and the accused;
(d) A recommendation as to the disposition that should be made of the case.
B. Hearing officer. (1) A preliminary hearing under this Article shall be conducted
by an impartial hearing officer, who:
(a) Whenever practicable, shall be a judge advocate who is certified under Article
27(B) of this Code; or
(b) When is it not practicable to appoint a judge advocate because of exceptional
circumstances, the convening authority may detail an impartial commissioned officer, who
is not the accuser, as a preliminary hearing officer.
(2) In the case of a hearing officer under Paragraph (1) of this Subsection, a judge
advocate who is certified under Article 27(B) of this Code shall be available to provide legal
advice to the hearing officer.
(3) Whenever practicable, the hearing officer shall be equal in grade or senior in
grade to the military counsel detailed to represent the accused or the government at the
preliminary hearing.
C. Report to convening authority. At the conclusion of a preliminary hearing
conducted pursuant to Subsection A of this Article, the hearing officer shall submit to the
convening authority a written report, accompanied by a recording of the preliminary hearing
under Subsection E of this Article, that includes the following:
(1) For each specification, a statement of the reasoning and conclusion of the hearing
officer with respect to determinations under Paragraph (A)(2) of this Article, including a
summary of relevant witness testimony and documentary evidence presented at this 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 and
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 prescribed under Article 36 of this
Code, is relevant to disposition under Articles 30 and 34 of this Code.
(4) A statement of action taken on evidence adduced with respect to uncharged
offenses, as described in Subsection F of this Article.
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 this Article. 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 that is relevant to the issues for determination under
Paragraph (A)(2) of this Article.
(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.
A declination under this Paragraph shall not serve as the sole basis for ordering a deposition
under Article 49 of this Code.
(4) 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 (A)(2) of this Article.
E. Recording of preliminary hearing. A preliminary hearing under Subsection A of
this Article shall be recorded by a suitable recording device. The victim may request the
recording and shall have access to the recording under such rules prescribed under Article
36 of this Code.
F. Effect of evidence of uncharged offense. If evidence adduced in a preliminary
hearing conducted pursuant to Subsection A of this Article 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 Article.
G. Effect of violation. The requirements of this Article are binding on all persons
administering this Chapter, but failure to follow the requirement does not constitute
jurisdictional error. A defect in a report under Subsection C of this Article is not a basis for
relief if the report is in substantial compliance with that Subsection.
H. Victim defined. For purposes of this Article, "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.

Legislative History

Acts 1974, No. 621, §1; Acts 2017, No. 75, §1, eff. June 8, 2017; Acts 2019, No. 373, §1.