Preliminary hearing

(a) In general. Except as provided in subsection (m), no charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing in substantial compliance with this rule. The issues for determination at a preliminary hearing are limited to the following: whether each specification alleges an offense; whether there is probable cause to believe that the accused committed the offense or offenses charged; whether the convening authority has court-martial jurisdiction over the accused and over the offense; and to recommend the disposition that should be made of the case. Failure to comply with this rule shall have no effect on the disposition of any charge if the charge is not referred to a general court-martial. (b) Earlier preliminary hearing. If a preliminary hearing on the subject matter of an offense has been conducted before the accused is charged with an offense, and the preliminary hearing and afforded the rights to counsel, cross-examination, and presentation of evidence required by this rule, no further preliminary hearing is required. (c) Who may direct a preliminary hearing. Unless prohibited by regulations of the Secretary concerned, a preliminary hearing may be directed under this rule by any court-martial convening authority. That authority may also give procedural instructions not inconsistent with these rules. (d) Personnel. the accused was present at (1) Preliminary hearing officer. (A) The convening authority directing the II-21 preliminary hearing shall detail an impartial judge advocate, not the accuser, who is certified under Article 27(b)(2) to conduct the hearing. When it is impracticable to appoint a judge advocate certified under Article exceptional circumstances: 27(b)(2) due to (i) The convening authority may detail an impartial commissioned officer as the preliminary hearing officer, and (ii) An impartial judge advocate certified under Article 27(b)(2) shall be available to provide legal advice to the detailed preliminary hearing officer. (B) Whenever practicable, the preliminary hearing officer shall be equal or senior in grade to the military counsel detailed to represent the accused and the Government at the preliminary hearing. (C) The Secretary concerned may prescribe additional limitations on the detailing of preliminary hearing officers. (D) The preliminary hearing officer shall not depart from an impartial role and become an advocate for either side. The preliminary hearing officer is disqualified to act later in the same case in any other capacity. (2) Counsel for the Government. A judge advocate, not the accuser, shall serve as counsel to represent the Government. (3) Defense counsel. (A) Detailed counsel. Military counsel certified in accordance with Article 27(b) shall be detailed to represent the accused. (B) Individual military counsel. The accused may request to be represented by individual military counsel. Such requests shall be acted on in accordance with R.C.M. 506(b). (C) Civilian counsel. The accused may be represented by civilian counsel at no expense to the Government. Upon request, the accused is entitled to a reasonable time to obtain civilian counsel and to have such counsel present for the preliminary hearing. However, the preliminary hearing shall not be unduly delayed for this purpose. Representation by civilian counsel shall not limit the rights to military counsel under subparagraphs (A) and (B). (4) Others. The convening authority who directed the preliminary hearing may also detail or request an appropriate authority to detail a reporter, an interpreter, or both. II-22 (e) Scope of preliminary hearing. (1) The preliminary hearing officer shall limit the inquiry to the examination of evidence, including witnesses, relevant to the issues for determination under subsection (a). (2) If evidence adduced during the preliminary hearing indicates that the accused committed any uncharged offense, the preliminary hearing officer may examine evidence and hear witnesses presented by the parties relating to the subject matter of such offense and make the determinations specified in subsection (a) regarding such offense without the accused first having been charged with the offense. The rights of the accused under subsection (f), and, where it would not cause undue delay to the proceedings, the procedure applicable for production of witnesses and other evidence under subsection (h), are the same with regard to both charged and uncharged offenses. When considering uncharged offenses identified during the preliminary hearing, the preliminary hearing officer shall inform the accused of the general nature of each uncharged offense considered, and otherwise afford the accused the same opportunity for representation, cross examination, and presentation afforded during the preliminary hearing of any charged offense. (f) Rights of the accused. At any preliminary hearing under this rule the accused shall have the right to: (1) Be advised of the charges under consideration; (2) Be represented by counsel; (3) Be informed of the purpose of the preliminary hearing; (4) Be informed of the right against self- incrimination under Article 31; (5) In accordance with the terms of R.C.M. 405(j)(4), be present throughout the preliminary hearing; (6) Cross-examine witnesses on matters relevant to the issues for determination under subsection (a) of this rule; (7) Present matters relevant to the issues for determination under subsection (a); and (8) Make a sworn or unsworn statement relevant to the issues for determination under subsection (a). (g) Notice to and presence of victim. (1) For the purposes of this rule, a “victim” is an individual who is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the commission of an offense under the UCMJ. (2) A victim of an offense under the UCMJ has the right to reasonable, accurate, and timely notice of a preliminary hearing relating to the alleged offense and the reasonable right to confer with counsel for the Government. (3) A victim has the right not to be excluded from any public proceeding of the preliminary hearing, except to the extent a similarly situated victim would be excluded at trial. (h) Notice, Production of Witnesses, and Production of Other Evidence. (1) Notice. Prior to any preliminary hearing under this rule the parties shall, in accordance with timelines set by the preliminary hearing officer, provide to the preliminary hearing officer and the opposing party the following notices: (A) Notice of the name and contact information for each witness the party intends to call at the preliminary hearing; and relevant, not cumulative, and necessary, counsel for the Government shall request that the commanding officer of the proposed military witness make that person available to provide testimony. The commanding officer shall determine whether the individual is available, and if so, whether the witness will testify in person, by video teleconference, by telephone, or by similar means of remote testimony, based on operational necessity or mission requirements. If the commanding officer determines that the military witness is available, counsel for the Government shall make arrangements for that individual’s testimony. of officer’s The unavailability due to operational necessity or mission requirements is final. A victim 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 under consideration and is named in one of the specifications under consideration shall not be required to testify at a preliminary hearing. determination commanding (B) Notice of any other evidence that the party (B) Civilian Witnesses. intends to offer at the preliminary hearing; and (C) Notice of any additional information the party intends to submit under subsection (k). (2) Production of Witnesses. (A) Military Witnesses. (i) Prior to the preliminary hearing, defense counsel shall provide to counsel for the Government the names of proposed military witnesses whom the accused requests that the Government produce to testify at the preliminary hearing, and the requested form of the testimony, in accordance with the timeline established by the preliminary hearing officer. Counsel for the Government shall respond that either (1) the Government agrees that the witness’ testimony is relevant, not cumulative, and necessary to a determination of the issues under subsection (a) and will seek to secure the witness’ testimony for the hearing; or (2) the Government objects to the proposed defense witness on the grounds that the testimony would be irrelevant, cumulative, or unnecessary to a determination of the issues under subsection (a). (ii) If the Government objects to the proposed defense witness, defense counsel may request that the preliminary hearing officer determine whether the witness is relevant, not cumulative, and necessary to a determination of the issues under subsection (a). (iii) If the Government does not object to the proposed defense military witness or the preliminary hearing officer determines that the military witness is that the accused requests (i) Defense counsel shall provide to counsel for the Government the names of proposed civilian witnesses whom the Government produce to testify at the preliminary hearing, and the requested form of the testimony, in accordance with the timeline established by the the preliminary hearing officer. Counsel Government shall the that either Government agrees that the witness’ testimony is relevant, not cumulative, and necessary to a determination of the issues under subsection (a) and will seek to secure the witness’ testimony for the hearing; or (2) the Government objects to the proposed defense witness on the grounds that the testimony would be irrelevant, cumulative, or unnecessary to a determination of the issues under subsection (a). for (1) respond (ii) If the Government objects to the proposed defense witness, defense counsel may request that the preliminary hearing officer determine whether the witness is relevant, not cumulative, and necessary to a determination of the issues under subsection (a). (iii) If the Government does not object to the proposed civilian witness or the preliminary hearing officer determines that the civilian witness’ testimony is relevant, not cumulative, and necessary, counsel for the Government shall invite the civilian witness to provide testimony and, if the individual agrees, shall make arrangements for that witness’ testimony. If expense to the Government is to be incurred, the II-23 convening authority who directed the preliminary hearing, or the convening authority’s delegate, shall determine whether the witness testifies in person, by video teleconference, by telephone, or by similar means of remote testimony. (3) Production of other evidence. (A) Evidence under the control of the Government. (i) Prior to the preliminary hearing, defense counsel shall provide to counsel for the Government a list of evidence under the control of the Government the accused requests the Government produce to the defense for introduction at the preliminary hearing. The preliminary hearing officer may set a deadline by which defense requests must be received. Counsel for the Government shall respond that either (1) the Government agrees that the evidence is relevant, not cumulative, and necessary to a determination of the issues under subsection (a) and shall make reasonable efforts to obtain the evidence; or (2) the Government objects to production of the evidence on the grounds that the evidence would be irrelevant, cumulative, or unnecessary to a determination of the issues under subsection (a). (ii) If the Government objects to production of the evidence, defense counsel may request that the preliminary hearing officer determine whether the evidence should be produced. The preliminary hearing officer shall determine whether the evidence is relevant, not cumulative, and necessary to a determination of the issues under subsection (a). If the the preliminary hearing officer determines evidence shall be produced, counsel the Government shall make reasonable efforts to obtain the evidence. that for (iii) The preliminary hearing officer may not order the production of any privileged matters, however, when a party offers evidence that an opposing party claims is privileged, the preliminary hearing officer may rule on whether a privilege applies. (B) Evidence not under the control of the Government. (i) Evidence not under the control of the Government may be obtained through noncompulsory means or by a pre-referral investigative subpoena issued by a military judge under R.C.M. 309 or counsel for the Government in accordance with the process established by R.C.M. 703(g)(3)(C). (ii) Prior to the preliminary hearing, defense II-24 the control of counsel shall provide to counsel for the Government a list of evidence not under the Government that the accused requests the Government obtain. The preliminary hearing officer may set a deadline by which defense requests must be received. Counsel for the Government shall respond that either (1) the Government agrees that the evidence is relevant, not cumulative, and necessary to a determination of the issues under subsection (a) and shall issue a pre-referral investigative subpoena for the evidence; or (2) the Government objects to production of the evidence on the grounds that the evidence would to a be determination of the issues under subsection (a). irrelevant, cumulative, or unnecessary (iii) If the Government objects to production of the evidence, defense counsel may request that the preliminary hearing officer determine whether the evidence should be produced. If the preliminary hearing officer determines that the evidence is relevant, not cumulative, and necessary to a determination of the issues under subsection (a) of this rule and that the issuance of a pre-referral investigative subpoena would not cause undue delay to the preliminary hearing, the preliminary hearing officer shall direct counsel for the Government investigative to seek a pre-referral subpoena for the defense-requested evidence from a military judge in accordance with R.C.M. 309 or authorization from the general court-martial convening authority to issue an investigative subpoena. If counsel for the Government refuses or is unable to obtain an investigative subpoena, the counsel shall set forth the reasons why the investigative subpoena was not obtained in a written statement that shall be included in the preliminary hearing report under subsection (l) of this rule. (iv) The preliminary hearing officer may not order the production of any privileged matters; however, when a party offers evidence that an opposing party claims is privileged, the preliminary hearing officer may rule on whether a privilege applies. (i) Military Rules of Evidence. (1) In general. (A) Only the following Military Rules of Evidence apply to preliminary hearings: (i) Mil. R. Evid. 301–303 and 305. (ii) Mil. R. Evid. 412(a), except as provided in paragraph (2) of this subsection. (iii) Mil. R. Evid., Section V, Privileges, except that Mil. R. Evid. 505(f)-(h) and (j); 506(f)-(h), (j), (k), and (m); and 514(d)(6) shall not apply. (B) In applying the rules to a preliminary hearing in accordance with subparagraph (A), the term “military judge,” as used in such rules, means the preliminary hearing officer, who shall assume the military judge’s authority to exclude evidence from the preliminary hearing, and who shall, in discharging this duty, follow the procedures set forth in such rules. Evidence offered in violation of the procedural requirements of the rules in subparagraph (A) shall be excluded from the preliminary hearing, unless good cause is shown. (2) Sex-offense cases. (A) Inadmissibility of certain evidence. In a case of an alleged sexual offense, as defined under Mil. R. Evid. 412(d), evidence offered to prove that the alleged victim engaged in other sexual behavior or evidence offered to prove any alleged victim’s sexual predisposition is not admissible at a preliminary hearing unless— (i) the evidence would be admissible at trial under Mil. R. Evid. 412(b)(1) or (2); and (ii) the evidence is not cumulative and is necessary to a determination of the issues under subsection (a) of this rule. (B) Initial procedure to determine admissibility. A party intending to offer evidence under subparagraph (A) shall, no later than five days before the preliminary hearing begins, submit a written motion specifically describing the evidence and stating why the evidence is admissible. The preliminary hearing officer may permit a different filing time, but any motion shall be filed prior to the beginning of the preliminary hearing. The moving party shall serve the motion on the opposing party, who shall have the opportunity to respond in writing. Counsel for the Government shall cause the motion and any written responses to be served on the victim, or victim’s counsel, if any, or, when the victim’s guardian or representative. After reviewing the motion and any written responses, the preliminary hearing officer shall either— appropriate, (i) deny the motion on the grounds that the evidence does not meet the criteria specified in clauses (i)(2)(A)(i) or (ii); or (ii) conduct a hearing to determine the admissibility of the evidence. (C) Admissibility hearing. If the preliminary hearing officer conducts a hearing to determine the admissibility of the evidence, the admissibility hearing shall be closed and should ordinarily be conducted at the end of the preliminary hearing, after all other evidence offered by the parties has been admitted. At the admissibility hearing, the parties may call witnesses and offer relevant evidence. The victim shall be afforded a reasonable opportunity to attend and be heard, to include being heard through counsel. If the the preliminary hearing officer determines evidence should be admitted, the victim may directly petition the Court of Criminal Appeals for a writ of mandamus pursuant to Article 6b. that (D) Sealing. The motions, related papers, and the record of an admissibility hearing shall be sealed and remain under seal in accordance with R.C.M. 1113. (j) Preliminary hearing procedure. (1) Generally. The preliminary hearing shall begin with the preliminary hearing officer informing the accused of the accused’s rights under subsection (f). Counsel for then present the Government will evidence. Upon the conclusion of counsel for the Government’s presentation of evidence, defense counsel may present matters. Both counsel for the Government and defense counsel shall be afforded an opportunity to cross-examine adverse witnesses. The preliminary hearing officer may also question witnesses called by the parties. If the preliminary hearing officer determines that additional evidence is necessary for a determination of the issues under subsection (a), the preliminary hearing officer may provide the parties an opportunity to present additional testimony or evidence. Except as provided in subparagraph (l)(2)(J), the preliminary hearing officer shall not consider evidence not presented at the preliminary hearing in making the determinations under subsection (a). The preliminary hearing officer shall not call witnesses sua sponte. (2) Presentation of evidence. (A) Testimony. Witness testimony may be provided in person, by video teleconference, by telephone, or by similar means of remote testimony. All testimony shall be taken under oath, except that the accused may make an unsworn statement. The preliminary hearing officer shall only consider testimony for to relevant determination under subsection (a). issues that the is (B) Other evidence. If relevant to the issues for determination under subsection (a) and not cumulative, a preliminary hearing officer may consider other evidence offered by either counsel for the Government II-25 or defense counsel, in addition to or in lieu of witness testimony, including statements, tangible evidence, or reproductions thereof, that the preliminary hearing officer determines is reliable. This other evidence need not be sworn. that outweighs (3) Access by spectators. Preliminary hearings are public proceedings and should remain open to the public whenever possible, whether conducted in person or via remote means. If there is an overriding interest the value of an open preliminary hearing, the convening authority or the preliminary hearing officer may restrict or foreclose access by spectators to all or part of the proceedings. Any restriction or closure must be narrowly tailored to protect involved. Before ordering any restriction or closure, a convening authority or preliminary hearing officer must determine whether any reasonable alternatives to such restriction or closure exist, or if some lesser means can be used to protect the overriding interest in the case. The convening authority or preliminary hearing officer shall make specific findings of fact in writing that support the restriction or closure. The written findings of fact shall be included in the preliminary hearing report. the overriding interest (4) Presence of accused. The accused shall be present for the preliminary hearing. (A) Remote presence of the accused. The convening authority that directed the preliminary the use of audio-visual hearing may authorize technology between the parties and the preliminary hearing officer. In such circumstances the “presence” requirement of the accused is met only when the accused has a defense counsel physically present at the accused’s location or when the accused consents to presence by remote means with the opportunity for confidential consultation with defense counsel during the proceeding. Such technology may include two or more remote sites as long as all parties can see and hear each other. (B) The accused shall be considered to have waived the right to be present at the preliminary hearing if the accused: (i) After being notified of the time and place of the proceeding is voluntarily absent; or (ii) After being warned by the preliminary hearing officer that disruptive conduct will cause removal from the proceeding, persists in conduct that is such as to justify exclusion from the proceeding. (5) Recording of the preliminary hearing. Counsel II-26 for the Government shall ensure that the preliminary hearing is recorded by a suitable recording device. A victim named in one of the specifications under consideration may request access to, or a copy of, the recording of the proceedings. Upon request, counsel for the Government shall provide the requested access to, or a copy of, the recording or, at the Government’s discretion, a transcript, to the victim not later than a reasonable time following dismissal of the charges, unless charges are dismissed for the purpose of rereferral, or court-martial adjournment. This rule does not entitle the victim to classified information or sealed materials consistent with an order issued in accordance with R.C.M. 1113(a). (6) Recording and broadcasting prohibited. Video and audio recording, broadcasting, and the taking of photographs—except as required in paragraph (j)(5) of this rule—are prohibited. The convening authority may, as a matter of discretion permit contemporaneous closed-circuit video or audio transmission to permit viewing or hearing by an accused removed under paragraph (j)(4) of this rule or by spectators when the facilities are inadequate to accommodate a reasonable number of spectators. (7) Objections. Any objection alleging a failure to comply with this rule, other than an objection under subsection (l), shall be made to the preliminary hearing officer promptly upon discovery of the alleged error. The preliminary hearing officer is not required to rule on any objection. An objection shall be noted in the preliminary hearing report if the person objecting so requests. The preliminary hearing officer may require a party to file any objection in writing. (8) Sealed exhibits and proceedings. The preliminary hearing officer has the authority to order exhibits, recordings of proceedings, or other matters sealed as described in R.C.M. 1113. (k) Supplementary information for the convening authority. (1) No later than 24 hours from the closure of the preliminary hearing, counsel for the Government, defense counsel, and any victim named in one of the specifications under consideration (or, if applicable, counsel for such a victim) may submit to the for preliminary hearing officer, the additional defense Government, information that the submitter deems relevant to the convening authority’s disposition of the charges and specifications. counsel counsel and (2) Defense counsel may submit additional matters the submissions of counsel for that rebut the Government or any victim provided under paragraph (k)(1). Such matters must be provided the preliminary hearing officer and to the counsel for the Government within 5 days of the closure of the preliminary hearing. to information (3) The preliminary hearing officer shall examine all under supplementary subsection (k) and shall seal, in accordance with R.C.M. 1113, any matters the preliminary hearing officer deems privileged or otherwise not subject to disclosure. submitted (A) The preliminary hearing officer shall provide the a written summary and an analysis of supplementary under information subsection (k) that is not sealed and is relevant to disposition for inclusion in the report to the convening authority under subsection (l). submitted submitted information (B) If the preliminary hearing officer seals any supplementary under subsection (k), the preliminary hearing officer shall provide an analysis of those materials. The analysis of the sealed materials shall be sealed. Additionally, the preliminary hearing officer shall generally describe those matters and detail the basis for sealing them in a separate cover sheet. This cover sheet shall accompany the sealed matters and shall not contain privileged information or be sealed. (4) The supplementary information and any summary and analysis provided by the preliminary hearing officer, and any sealed matters and cover sheets, as applicable, shall be forwarded to the convening authority for consideration in making a disposition determination. (5) Submissions under subsection (k) shall be maintained as an attachment to the preliminary hearing report provided under subsection (l). (l) Preliminary hearing report. (1) In general. The preliminary hearing officer shall make a timely written report of the preliminary hearing to the convening authority. This report is advisory and does not bind the staff judge advocate or convening authority. (2) Contents. The preliminary hearing report shall include: (A) A statement of names and organizations or addresses of counsel for the Government and defense counsel and, if applicable, a statement of why either counsel was not present at any time during the proceedings; (B) The recording of the preliminary hearing under paragraph (j)(5); for determination under subsection (C) For each specification, the preliminary hearing officer’s reasoning and conclusions with respect to the issues (a), including a summary of relevant witness testimony and documentary evidence presented at the hearing and any observations concerning the testimony of witnesses and the availability and admissibility of evidence at trial; (D) If applicable, a statement that an essential witness may not be available for trial; (E) An explanation of any delays in the preliminary hearing; (F) A notation if counsel for the Government refused to issue a pre-referral investigative subpoena that was directed by the preliminary hearing officer and the counsel’s statement of the reasons for such refusal; any necessary the charges and (G) Recommendations to the form of for modifications specifications; (H) A statement of whether the preliminary hearing officer examined evidence or heard witnesses relating to any uncharged offenses in accordance with paragraph (e)(2), and, for each such offense, the preliminary and conclusions as to whether there is probable cause to believe that the accused committed the offense and whether the convening authority would have court- martial jurisdiction over the offense if it were charged; (I) A notation of any objections if required under reasoning officer’s hearing paragraph (j)(7); (J) The recommendation of the preliminary hearing officer as to the disposition that should be made of the charges and specifications in the interest of justice and discipline. In making this disposition recommendation, the preliminary hearing officer may consider any evidence admitted during the preliminary hearing and matters submitted under subsection (k); and (K) The written summary and analysis required by subparagraph (k)(3)(A). (3) Sealed exhibits and proceedings. If the exhibits, report preliminary hearing proceedings, or other matters ordered sealed by the preliminary hearing officer in accordance with R.C.M. 1113, counsel for the Government shall cause such materials to be sealed so as to prevent unauthorized contains II-27 viewing or disclosure. the offense; and (4) Distribution of preliminary hearing report. The preliminary hearing officer shall promptly cause the preliminary hearing report to be delivered to the convening authority. That convening authority shall promptly cause a copy of the report to be delivered to each accused and, in accordance with R.C.M. 401(b), shall promptly determine what disposition will be made in the interest of justice and discipline. If applicable, the convening authority shall promptly forward the report, together with the charges, to a superior commander for disposition. the preliminary hearing, via (5) Objections. Any objection to the preliminary hearing report shall be made to the convening authority who directed the preliminary hearing officer. Upon receipt of the report, the accused has 5 days to submit objections to the preliminary hearing officer. The preliminary hearing officer will forward the objections to the convening authority as soon as practicable. This paragraph does not prohibit a convening authority from referring any charge or taking other action within the 5-day period. (m) Waiver. The accused may waive a preliminary hearing. However, the convening authority authorized to direct the preliminary hearing may direct that a preliminary hearing be conducted notwithstanding the waiver. Failure to make a timely objection under this rule, including an objection to the report, shall constitute forfeiture of the objection. Relief from the waiver or forfeiture may be granted by the convening authority who directed the preliminary hearing, a superior convening authority, or the military judge, as appropriate, for good cause shown.