Pre-referral judicial proceedings

(a) In general. (1) A military judge detailed under regulations of the Secretary concerned may conduct proceedings under referral of charges and Article 30a, before specifications to court-martial for trial, and may issue such rulings and orders as necessary to further the purpose of the proceedings. A military judge may issue such orders and rulings only when the matters would be subject to consideration by a military judge in a general or special court-martial. (2) The matters that may be considered and ruled upon by a military judge in proceeding under this rule are limited to those matters specified in subsection (b) of this rule. (3) If any matter in a proceeding under this rule becomes a subject at issue with respect to charges that have been referred to a general or special court-martial, the matter, to include any motions, related papers, and the record of the hearing, if any, shall be provided to the military judge detailed to the court-martial. (b) Pre-referral matters. (1) Pre-referral investigative subpoenas. A military judge may, upon application by the Government, consider whether to issue a pre-referral investigative subpoena under R.C.M. 703(g)(3)(C). The proceeding may be conducted ex parte and may be conducted in camera. (2) Pre-referral warrants or orders for wire or electronic communications. A military judge may, upon written application by a federal law enforcement officer or authorized counsel for the Government in connection with an ongoing investigation of an offense or offenses under the UCMJ, consider whether to issue II-18 a warrant or order for wire or electronic communications and related information as provided under R.C.M. 703A. The proceeding may be conducted ex parte and may be conducted in camera. (3) Requests for relief from subpoena or other process. A person in receipt of a pre-referral investigative subpoena under R.C.M. 703(g)(3)(C), a victim named in a specification whose personal and confidential information has been subpoenaed under R.C.M. 703(g)(3)(C)(ii), or a service provider in receipt of a warrant or court order to disclose information about wire or electronic communications under R.C.M. 703A may request relief on grounds that compliance with the subpoena, warrant, or order is unreasonable, oppressive or prohibited by law. The military judge shall review the request and shall either order the person or service provider to comply with the subpoena, warrant, or order, or modify or quash the subpoena, warrant, or order as appropriate. In a proceeding under this paragraph, the United States shall be represented by an authorized counsel for the Government. (4) Pre-referral matters referred by an appellate court. When a Court of Criminal Appeals or the Court of Appeals for the Armed Forces, in the course of exercising the jurisdiction of such court, remands the case for a pre-referral judicial proceeding, a military judge may conduct such a proceeding under this rule. This includes matters referred by a Court of Criminal Appeals under subsection (e) of Article 6b. (5) Pre-referral matters under subsection (c) of Article 6b. The military judge may designate a suitable person to assume the rights of a victim who is under 18 years of age (but who is not a member of the armed forces), or who is incompetent, incapacitated, or deceased. Upon appointment by the military judge, the legal guardian of the victim, the representative of the victim’s estate, a family member, or any other person designated as suitable by the military judge, may assume Under no circumstances may the military judge designate the accused to assume the rights of the victim. the rights of the victim. (6) Pretrial confinement of an accused. After action by the 7-day reviewing officer under R.C.M. 305(i)(2)(C), a military judge may, upon application of an accused for appropriate relief, review the propriety of pretrial confinement. A military judge may order release from pretrial confinement under the provisions of R.C.M. 305(j)(1). (7) The mental capacity or mental responsibility of exercise the authority of the military judge over the proceeding. an accused. (A) A military judge may, under the provisions of R.C.M. 706(b)(1), order an inquiry into the mental capacity or mental responsibility of an accused before referral of charges. The proceeding may be conducted ex parte and may be conducted in camera. (B) A military judge may, under the provisions of R.C.M. 909, conduct a hearing to determine the mental capacity of the accused. (8) A request for individual military counsel. When an accused requests individual military counsel prior to charges being referred to a general or special court- martial, a military judge may review the request subject to the provisions of R.C.M. 506(b). (9) Victim’s petition for relief. (A) A victim of an offense under the UCMJ, as defined in Article 6b(b), may file a motion pre-referral requesting that a military judge require a preliminary hearing officer conducting a preliminary hearing under R.C.M. 405 to comply with: (i) Articles 6b or 32; (ii) R.C.M. 405; or (iii) Mil. R. Evid. 412, 513, 514, or 615. (B) The military judge may grant or deny such a motion. The ruling is subject to further review pursuant to Article 6b(e). (c) Procedure for submissions. The Secretary concerned shall prescribe the procedures for receiving requests for proceedings under this rule and for detailing military judges to such proceedings. (d) Hearings. Any hearing conducted under this rule shall be conducted in accordance with the procedures generally applicable to sessions conducted under Article 39(a), and R.C.M. 803. (e) Record. A separate record of any proceeding under this rule shall be prepared and forwarded to the convening authority or commander with authority to dispose of the charges or offenses in the case. If charges are referred to trial in the case, such record shall be included in the record of trial. (f) Military magistrate. If authorized under regulations of the Secretary concerned, a military judge detailed to a proceeding under this rule, other than a proceeding under paragraph (b)(2), (b)(7)(B), or (b)(8) of this rule, may designate a military magistrate to preside and II-19 CHAPTER IV. FORWARDING AND DISPOSITION OF CHARGES