§ 832.
Art. 32. Preliminary hearing required before referral to general court-martial
(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.
([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].)