Mass. Gen. Laws ch. 33A, sec. 32 — MA Code / Part I / Title V / Chapter 33A / Section 32
Investigation
Status: in_force

Article 32. Investigation. (a)(1) No charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing, unless such hearing is waived by the accused. (2) The purpose of the preliminary hearing shall be limited to the following: (A) determining whether there is probable cause to believe an offense has been committed and the accused committed the offense; (B) determining whether the convening authority has court-martial jurisdiction over the offense and the accused; (C) considering the form of charges; and (D) recommending the disposition that should be made of the case. (b)(1) A preliminary hearing held under subsection (a) shall be conducted by an impartial judge advocate certified under subsection (b) of article 27, whenever practicable, or, in exceptional circumstances warranted by the interests of justice, by an impartial hearing officer who is not a judge advocate. If the hearing officer is not a judge advocate, a judge advocate certified under subsection (b) of article 27 shall be available to provide legal advice to the hearing officer. (2) Whenever practicable, when the judge advocate or other hearing officer is detailed to conduct the preliminary hearing, the officer shall be equal to or senior in grade to military counsel detailed to represent the accused or the government at the preliminary hearing. (c) After conducting a preliminary hearing under subsection (a), the judge advocate or other officer conducting the preliminary hearing shall prepare a report that addresses the matters specified in subsections (a) and (f). (d)(1) 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 subsection (a). The accused has the right to be represented at the preliminary hearing as provided in article 38 and in regulations prescribed under that article. (2) The accused may cross-examine witnesses who testify at the preliminary hearing and present additional evidence in defense and mitigation, relevant to the limited purposes of the hearing, as provided for in paragraph (4) of this subsection and in paragraph (2) of subsection (a). (3) A victim may not be required to testify at a preliminary hearing. A victim who declines to testify shall be considered unavailable for purposes of the preliminary hearing. (4) The presentation of evidence and examination, including cross-examination, of witnesses at a preliminary hearing shall be limited to matters relevant to the purposes of the hearing, as provided in paragraph (2) of subsection (a). (e) 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. (f) 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: (1) is present at the preliminary hearing; (2) is informed of the nature of each uncharged offense considered; and (3) is afforded opportunities for representation, cross-examination and presentation consistent with subsection (d). (g) This article shall be binding on all persons administering this chapter, but failure to follow the requirements shall not constitute jurisdictional error. (h) For purposes of this article, the term ''victim'' shall mean a person who: (1) 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 (2) is named in 1 of the specifications.

Article 32. Investigation.

(a)(1) No charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing, unless such hearing is waived by the accused.

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

(A) determining whether there is probable cause to believe an offense has been committed and the accused committed the offense;

(B) determining whether the convening authority has court-martial jurisdiction over the offense and the accused;

(C) considering the form of charges; and

(D) recommending the disposition that should be made of the case.

(b)(1) A preliminary hearing held under subsection (a) shall be conducted by an impartial judge advocate certified under subsection (b) of article 27, whenever practicable, or, in exceptional circumstances warranted by the interests of justice, by an impartial hearing officer who is not a judge advocate. If the hearing officer is not a judge advocate, a judge advocate certified under subsection (b) of article 27 shall be available to provide legal advice to the hearing officer.

(2) Whenever practicable, when the judge advocate or other hearing officer is detailed to conduct the preliminary hearing, the officer shall be equal to or senior in grade to military counsel detailed to represent the accused or the government at the preliminary hearing.

(c) After conducting a preliminary hearing under subsection (a), the judge advocate or other officer conducting the preliminary hearing shall prepare a report that addresses the matters specified in subsections (a) and (f).

(d)(1) 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 subsection (a). The accused has the right to be represented at the preliminary hearing as provided in article 38 and in regulations prescribed under that article.

(2) The accused may cross-examine witnesses who testify at the preliminary hearing and present additional evidence in defense and mitigation, relevant to the limited purposes of the hearing, as provided for in paragraph (4) of this subsection and in paragraph (2) of subsection (a).

(3) A victim may not be required to testify at a preliminary hearing. A victim who declines to testify shall be considered unavailable for purposes of the preliminary hearing.

(4) The presentation of evidence and examination, including cross-examination, of witnesses at a preliminary hearing shall be limited to matters relevant to the purposes of the hearing, as provided in paragraph (2) of subsection (a).

(e) 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.

(f) 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:

(1) is present at the preliminary hearing;

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

(3) is afforded opportunities for representation, cross-examination and presentation consistent with subsection (d).

(g) This article shall be binding on all persons administering this chapter, but failure to follow the requirements shall not constitute jurisdictional error.

(h) For purposes of this article, the term ''victim'' shall mean a person who:

(1) 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

(2) is named in 1 of the specifications.