Art. 32. Preliminary hearing required before referral to general court-martial

10 U.S.C. § 832

• Title: 10 — Armed Forces
• Chapter: SUBCHAPTER VI—PRE-TRIAL PROCEDURE

Text

(a) In General.—(1)(A) Except as provided in subparagraph (B), 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 in accordance with subparagraph (C).
(B) Under regulations prescribed by the President, a preliminary hearing need not be held if the accused submits a written waiver to—
(i) except as provided in clause (ii), the convening authority and the convening authority determines that a hearing is not required; and
(ii) with respect to charges and specifications over which the special trial counsel is exercising authority in accordance with section 824a of this title (article 24a), the special trial counsel and the special trial counsel determines that a hearing is not required.
(C)(i) Except as provided in clause (ii), the convening authority shall detail a hearing officer.
(ii) If a special trial counsel is exercising authority over the charges and specifications subject to a preliminary hearing under this section (article), the special trial counsel shall request a hearing officer and a hearing officer shall be provided by the convening authority, in accordance with regulations prescribed by the President.
(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 accused and over the offense.
(D) A recommendation as to the disposition that should be made of the case.
(b) Hearing Officer.—(1) A preliminary hearing under this section shall be conducted by an impartial hearing officer, who—
(A) whenever practicable, shall be a judge advocate who is certified under section 827(b)(2) of this title (article 27(b)(2)); or
(B) when it is not practicable to appoint a judge advocate because of exceptional circumstances, is not a judge advocate so certified.
(2) In the case of a hearing officer under paragraph (1)(B), a judge advocate who is certified under section 827(b)(2) of this title (article 27(b)(2)) 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 military counsel who are detailed to represent the accused or the Government at the preliminary hearing.
(c) Report to Convening Authority or Special Trial Counsel.—After a preliminary hearing under this section, the hearing officer shall submit to the convening authority or, in the case of a preliminary hearing in which the hearing officer is provided at the request of a special trial counsel to the special trial counsel, a written report (accompanied by a recording of the preliminary hearing under subsection (e)) that includes the following:
(1) For each specification, a statement of the reasoning and conclusions of the hearing officer with respect to determinations under subsection (a)(2), 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 President may prescribe, is relevant to disposition under sections 830 and 834 of this title (articles 30 and 34).
(4) A statement of action taken on evidence adduced with respect to uncharged offenses, as described in subsection (f).
(d) Rights of Accused and Victim.—(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 section.
(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 subsection (a)(2).
(3) A victim may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing. A declination under this paragraph shall not serve as the sole basis for ordering a deposition under section 849 of this title (article 49).
(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 subsection (a)(2).
(e) Recording of Preliminary Hearing.—A preliminary hearing under subsection (a) shall be recorded by a suitable recording device. The victim may request the recording and shall have access to the recording under such rules as the President may prescribe.
(f) Effect of Evidence of Uncharged Offense.—If evidence adduced in a preliminary hearing under subsection (a) 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).
(g) Effect of Violation.—The requirements of this section are binding on all persons administering this chapter, but failure to follow the requirements does not constitute jurisdictional error. A defect in a report under subsection (c) is not a basis for relief if the report is in substantial compliance with that subsection.
(h) Victim Defined.—In this section, the term "victim" means 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.

History

(Aug. 10, 1956, ch. 1041, 70A Stat. 48; Pub. L. 97–81, §4(a), Nov. 20, 1981, 95 Stat. 1088; Pub. L. 104–106, div. A, title XI, §1131, Feb. 10, 1996, 110 Stat. 464; Pub. L. 113–66, div. A, title XVII, §1702(a)(1), Dec. 26, 2013, 127 Stat. 954; Pub. L. 113–291, div. A, title V, §531(a)(4)(A), Dec. 19, 2014, 128 Stat. 3363; Pub. L. 114–328, div. E, title LVI, §5203(a)–(d), Dec. 23, 2016, 130 Stat. 2905, 2906; Pub. L. 117–81, div. A, title V, §536, Dec. 27, 2021, 135 Stat. 1696.)

Editorial Notes

In subsection (a), the word "may" is substituted for the word "shall". The words "consideration of the" and "a recommendation as to" are inserted in the interest of accuracy and precision of statement.
In subsection (b), the word "detailed" is substituted for the word "appointed", since the filling of the position involved is not appointment to an office in the constitutional sense.
In subsection (c), the word "before" is substituted for the words "prior to the time". The words "of this section" are omitted as surplusage.
In subsection (d), the word "are" is substituted for the words "shall be." The word "does" is substituted for the words "in any case shall".

Editorial Notes

Amendments
2021—Subsec. (a)(1)(A). Pub. L. 117–81, §536(a)(1), substituted "hearing officer detailed in accordance with subparagraph (C)." for "hearing officer, detailed by the convening authority in accordance with subsection (b)."
Subsec. (a)(1)(B). Pub. L. 117–81, §536(a)(2), substituted "written waiver to—" and cls. (i) and (ii) for "written waiver to the convening authority and the convening authority determines that a hearing is not required."
Subsec. (a)(1)(C). Pub. L. 117–81, §536(a)(3), added subpar. (C).
Subsec. (c). Pub. L. 117–81, §536(b), inserted "or Special Trial Counsel" after "Convening Authority" in heading and substituted "to the convening authority or, in the case of a preliminary hearing in which the hearing officer is provided at the request of a special trial counsel to the special trial counsel," for "to the convening authority" in introductory provisions.
2016—Pub. L. 114–328, §5203(a), substituted "Preliminary hearing required before referral to general court-martial" for "Preliminary hearing" in section catchline.
Subsecs. (a) to (c). Pub. L. 114–328, §5203(a), added subsecs. (a) to (c) and struck out former subsecs. (a) to (c) which related to requirement of preliminary hearing, hearing officer, and report of hearing results, respectively.
Subsec. (d)(1). Pub. L. 114–328, §5203(b)(1), substituted "this section" for "subsection (a)".
Subsec. (d)(2). Pub. L. 114–328, §5203(b)(2), substituted "that is relevant to the issues for determination under subsection (a)(2)." for "in defense and mitigation, relevant to the limited purposes of the hearing, as provided for in paragraph (4) and subsection (a)(2)."
Subsec. (d)(3). Pub. L. 114–328, §5203(b)(3), inserted at end "A declination under this paragraph shall not serve as the sole basis for ordering a deposition under section 849 of this title (article 49)."
Subsec. (d)(4). Pub. L. 114–328, §5203(b)(4), substituted "determinations under subsection (a)(2)" for "the limited purposes of the hearing, as provided in subsection (a)(2)".
Subsec. (e). Pub. L. 114–328, §5203(c), substituted "under such rules as the President may prescribe" for "as prescribed by the Manual for Courts-Martial".
Subsec. (g). Pub. L. 114–328, §5203(d), inserted at end "A defect in a report under subsection (c) is not a basis for relief if the report is in substantial compliance with that subsection."
2014—Subsec. (a)(1). Pub. L. 113–291 inserted ", unless such hearing is waived by the accused" after "preliminary hearing".
2013—Pub. L. 113–66 substituted "Preliminary hearing" for "Investigation" in section catchline and amended text generally. Prior to amendment, section provided that no charge or specification may be referred to general court-martial for trial until thorough and impartial investigation of all the matters had been made.
1996—Subsecs. (d), (e). Pub. L. 104–106 added subsec. (d) and redesignated former subsec. (d) as (e).
1981—Subsec. (b). Pub. L. 97–81 substituted "The accused has the right to be represented at that investigation as provided in section 838 of this title (article 38) and in regulations prescribed under that section" for "Upon his own request he shall be represented by civilian counsel if provided by him, or military counsel of his own selection if such counsel is reasonably available, or by counsel detailed by the officer exercising general court-martial jurisdiction over the command".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment
Amendment by Pub. L. 117–81 effective on the date that is two years after Dec. 27, 2021, and applicable with respect to offenses that occur after that date, with provisions for delayed effect and applicability if regulations are not prescribed by the President before the date that is two years after Dec. 27, 2021, see section 539C of Pub. L. 117–81, set out as a note under section 801 of this title.

Effective Date of 2016 Amendment
Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2013 Amendment
Amendment by Pub. L. 113–66 effective on the later of Dec. 26, 2014, or the date of the enactment of the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) and applicable with respect to preliminary hearings conducted on or after that effective date, see section 1702(d)(1) of Pub. L. 113–66, set out as a note under section 802 of this title.

Effective Date of 1981 Amendment
Amendment by Pub. L. 97–81 to take effect at end of 60-day period beginning on Nov. 20, 1981, and to apply with respect to investigations under this section that begin on or after that date, see section 7(a) and (b)(3) of Pub. L. 97–81, set out as an Effective Date note under section 706 of this title.