(a) No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.
(b) The accused shall be advised of the charges against him and of his right to be represented at that investigation by counsel. 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. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.
(c) If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (b), no further investigation of that charge is necessary under this article unless it is demanded by the accused after he is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in his own behalf.
(d) If evidence adduced in an investigation under this article indicates that the accused committed an uncharged offense, the investigating officer may investigate the subject matter of that offense without the accused having first been charged with the offense if the accused—
(1) is present at the investigation;
(2) is informed of the nature of each uncharged offense investigated; and
(3) is afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (b).
(e) The requirements of this article are binding on all persons administering this chapter but failure to follow them does not constitute jurisdictional error.
(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. 113–66, div. A, title XVII, §1702(a)(1), (d)(1), Dec. 26, 2013, 127 Stat. 954, 958, provided that, effective one year after Dec. 26, 2013, and applicable with respect to offenses committed under this chapter on or after that effective date, this section is amended to read as follows:
(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 charges.
(D) Recommending the disposition that should be made of the case.
(2) Whenever practicable, when the judge advocate or other hearing officer is detailed to conduct the preliminary hearing, the officer shall be equal to or senior in grade to military counsel detailed to represent the accused or the Government at the preliminary hearing.
(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) and 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.
(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)(2).
(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).
(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.
See 2013 Amendment note below.
|Revised section||Source (U.S. Code)||Source (Statutes at Large)|
|May 5, 1950, ch. 169, §1 (Art. 32), 64 Stat. 118.|
Last modified: October 26, 2015