[§124B-54]  Preliminary hearing required before referral to general court-martial.  (a)  Except as provided in subsection (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 (d).

     (b)  In accordance with rules adopted by the governor or adjutant general, 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.

     (c)  The purpose of the preliminary hearing shall be limited to determining the following:

     (1)  Whether the specification alleges an offense under this chapter;

     (2)  Whether there is probable cause to believe that the accused committed the offense charged;

     (3)  Whether the convening authority has court-martial jurisdiction over the accused and over the offense; and

     (4)  A recommendation as to the disposition that should be made of the case.

     (d)  A preliminary hearing under this section shall be conducted by an impartial hearing officer, who:

     (1)  Whenever practicable, shall be a judge advocate who is certified under section 124B-47; or

     (2)  Is not a judge advocate so certified, when it is not practicable to appoint a judge advocate because of exceptional circumstances.  In the case of a hearing officer under this paragraph, a judge advocate who is certified under section 124B-47 shall be available to provide legal advice to the hearing officer.

     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.

     (e)  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 (i), 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 (c), 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 is relevant to a disposition under sections 124B-51 and 124B-54, in accordance with rules adopted by the governor or adjutant general; and

     (4)  A statement of action taken on evidence adduced with respect to uncharged offenses, as described in subsection (j).

     (f)  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 shall have the right to be represented at the preliminary hearing as provided in section 124B-63 and in rules adopted thereunder.  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 (c).

     (g)  A victim shall not be required to testify at the preliminary hearing.  A victim who declines to testify shall be deemed to not be available for purposes of the preliminary hearing.  A declination under this subsection shall not serve as the sole basis for ordering a deposition under section 124B-74.

     (h)  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 (c).

     (i)  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 in accordance with rules adopted by the governor or adjutant general.

     (j)  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 is:

     (1)  Present at the preliminary hearing;

     (2)  Informed of the nature of each uncharged offense considered; and

     (3)  Afforded the opportunities for representation, cross-examination, and presentation consistent with subsection (f).

     (k)  The requirements of this section are binding on all persons administering this chapter; provided that failure to follow the requirements shall not constitute jurisdictional error.  A defect in a report under subsection (e) shall not be a basis for relief if the report is in substantial compliance with that subsection.

     (l)  For purposes of this section, the term "victim" means a person who is:

     (1)  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)  Named in one of the specifications. [L 2022, c 286, pt of §2]