Sec. 5203. PRELIMINARY HEARING REQUIRED BEFORE REFERRAL TO GENERAL COURT-MARTIAL

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## SEC. 5203 PRELIMINARY HEARING REQUIRED BEFORE REFERRAL TO GENERAL COURT-MARTIAL ###

(a)In General Section 832 of title 10, United States Code (article 32 of the Uniform Code of Military Justice), is amended by striking the section heading and subsections (a), (b), and

(c)and inserting the following: > > ## “SEC. 832 Art. 32. Preliminary hearing required before referral to general court-martial > > > ### “(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 by the convening authority in accordance with subsection (b). > > > ##### “(B) > > Under regulations prescribed by the President, a preliminary hearing need not be held if the accused submits a written waiver to the convening authority and the convening authority determines that 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 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 > > After a preliminary hearing under this section, the hearing officer shall submit to the convening authority 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).” > . ###

(b)Sundry Amendments Subsection

(d)of such section (article) is amended— ####

(1)in paragraph (1), by striking “subsection (a)” in the first sentence and inserting “this section”; ####

(2)in paragraph (2), by striking “in defense” and all that follows through the end and inserting “that is relevant to the issues for determination under subsection (a)(2).”; ####

(3)in paragraph (3), by adding at the end the following new sentence: “A declination under this paragraph shall not serve as the sole basis for ordering a deposition under section 849 of this title (article 49).”; and ####

(4)in paragraph (4), by striking “the limited purposes of the hearing, as provided in subsection (a)(2)” and inserting “determinations under subsection (a)(2)”. ###

(c)Reference to MCM Subsection

(e)of such section (article) is amended by striking “as prescribed by the Manual for Courts-Martial” in the second sentence and inserting “under such rules as the President may prescribe”. ###

(d)Effect of Violation Subsection

(g)of such section (article) is amended by adding at the end the following new sentence: “A defect in a report under subsection

(c)is not a basis for relief if the report is in substantial compliance with that subsection.”. ###

(e)Conforming Amendments The following provisions are each amended by striking “investigating officer” and inserting “preliminary hearing officer”: ####

(1)Section 806b(a)(3) of title 10, United States Code (article 6b(a)(3) of the Uniform Code of Military Justice). ####

(2)Section 825(d)(2) of such title (article 25(d)(2) of the Uniform Code of Military Justice). ####

(3)Section 826(d) of such title (article 26(d) of the Uniform Code of Military Justice).