(a) No charge or specification may be referred to a general court-martial for trial until the completion of a preliminary hearing, unless the preliminary hearing is waived by the accused. The purpose of the preliminary hearing shall be limited to the following:
(1) Determining whether there is probable cause to believe an offense has been committed and the accused committed the offense.
(2) Determining whether the convening authority has court-martial jurisdiction over the offense and the accused.
(3) Considering the form of charges.
(4) Recommending the disposition that should be made of the case.
(b) A preliminary hearing under subsection (a) shall be conducted by a hearing officer who satisfies all of the following:
(1) The hearing officer shall be an impartial judge advocate whenever practicable or, in exceptional circumstances in which the interests of justice warrant, an impartial hearing officer who is not a judge advocate. If the hearing officer is not a judge advocate, a judge advocate shall be available to provide legal advice to the hearing officer.
(2) Whenever practicable, the hearing officer shall be equal to or senior in grade to military counsel detailed to represent the accused or the government at the preliminary hearing.
(c) After conducting a preliminary hearing under subsection (a), the judge advocate or other officer conducting the preliminary hearing shall prepare a report that addresses the matters specified in subsections (a) and (f).
(d) The rights of the accused and victim at the preliminary hearing are as follows:
(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 subsection (a). The accused has the right to be represented at the preliminary hearing as provided in Section 31-2A-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 in defense and mitigation, relevant to the limited purposes of the hearing, as provided for in subdivision (4) and subsection (a).
(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.
(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 purposes of the hearing, as provided in subsection (a).
(e) 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 as prescribed by the Manual for Courts-Martial.
(f) 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 is all of the following:
(1) Present at the preliminary hearing.
(2) Informed of the nature of each uncharged offense considered.
(3) Afforded the opportunities for representation, cross-examination, and presentation consistent with subsection (d).
(g) The requirements of this section are binding on all persons administering this chapter, but failure to follow the requirements does not constitute jurisdictional error.
(h) For the purposes of this section, the term "victim" means a person who 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 is named in one of the specifications.
Last modified: May 3, 2021