Title 13A. Maryland Code of Military Justice — Subtitle 6. Pre–trial Procedure

that the signer has personal knowledge of, or has investigated, the matters set forth therein; and

that they are true in fact to the best of the signer’s knowledge and belief.

pre–referral investigative subpoenas;

pre–referral warrants or orders for electronic communications;

pre–referral matters referred by an appellate court;

pre–referral matters under § 13A–603(c) or (d) of this subtitle; or

arrest warrants when probable cause exists to believe a military member committed a crime as described under the punitive provisions.

include procedures for the review of such rulings that may be ordered under this section as the adjutant general considers appropriate; and

provide such limitations on the relief that may be ordered under this section as the Adjutant General considers appropriate.

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

is named in one of the specifications.

A charge or specification may not be referred to a general court–martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made.

This investigation shall include:

The accused shall be advised of the charges against the accused and of the right to be represented at the investigation by counsel.

The accused has the right to be represented at the investigation as provided in § 13A–703 of this title and in regulations prescribed under that section.

At the investigation, full opportunity shall be given to the accused to cross–examine witnesses against the accused, if they are available, and to present anything the accused may desire in the accused’s own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused.

If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy of the charges shall be given to the accused.

If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross–examination, and presentation prescribed in subsection (c) of this section, no further investigation of that charge is necessary under this section unless it is demanded by the accused after the accused is informed of the charge.

A demand for further investigation entitles the accused to recall witnesses for further cross–examination and to offer any new evidence in the accused’s own behalf.

present at the investigation;

informed of the nature of each uncharged offense investigated; and

afforded the opportunities for representation, cross–examination, and presentation prescribed in subsection (b) of this section.

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

In the case of the appointment of a hearing officer under paragraph (1)(ii) of this subsection, a judge advocate who is certified under § 13A–506 of this title 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.

for each specification, a statement of the reasoning and conclusions of the hearing officer with respect to determinations under subsection (b)(2) of this section, 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;

recommendations for any necessary modifications to the form of the charges or specifications;

an analysis of any additional information submitted after the hearing by the parties or by a victim of an offense, that, under rules prescribed under § 13A–701 of this title, is relevant to disposition under this section and § 13A–601 of this subtitle; and

a statement of action taken on evidence adduced with respect to uncharged offenses, as described in subsection (l) of this section.

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 (b)(2) of this section.

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 (b)(2) of this section.

A preliminary hearing under subsection (b) of this section 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 are prescribed in § 13A–701 of this title.

present at the preliminary hearing;

informed of the nature of each uncharged offense considered; and

afforded the opportunities for representation, cross–examination, and presentation consistent with subsection (i) of this section.

The requirements of this section are binding on all persons administering this title, but failure to follow the requirements does not constitute jurisdictional error.

A defect in a report under subsection (i) of this section is not a basis for relief if the report is in substantial compliance with that subsection.

Before directing the trial of any charge by general court–martial, the convening authority shall refer the charge to a judge advocate for consideration and advice.

The convening authority may not refer a specification under a charge to a general court–martial for trial unless the convening authority has been advised in writing by a judge advocate that:

The advice of the judge advocate under subsection (a) of this section with respect to a specification under a charge shall include a written and signed statement by the judge advocate:

If the specification is referred for trial, the recommendation of the judge advocate shall accompany the specification.

Subject to paragraphs (2) and (3) of this subsection, a trial or other proceeding of a general court–martial or a special court–martial, including a session under § 13A–704 of this title may not be held over the objection of the accused: