Okla. Stat. tit. 44, § 44-832: Preliminary hearing required before referral to general

court-martial.

ARTICLE 32. Preliminary hearing required before referral to

general court-martial.

A. In general.

1. a. Except as provided in subparagraph b of this

paragraph, 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 B of this section.

b. Under regulations promulgated by the 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.

2. The purpose of the preliminary hearing shall be limited to

determining the following:

a. whether or not the specification alleges an offense

under the Oklahoma Uniform Code of Military Justice,

b. whether or not there is probable cause to believe that

the accused committed the offense charged,

c. whether or not the convening authority has court-

martial jurisdiction over the accused and over the

offense, and

d. a recommendation as to the disposition that should be

made of the case.

B. Hearing officer.

1. A preliminary hearing under this section shall be conducted

by an impartial hearing officer, who shall be a judge advocate who

is certified under paragraph 2 of subsection B of Section 827 of

this title (Article 27, subsection B, paragraph 2).

2. 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.

C. Report to convening authority. 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 as required under subsection E of this

section, that includes the following:

1. For each specification, a statement of the reasoning and

conclusions of the hearing officer with respect to determinations

under paragraph 2 of subsection A 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;

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, under

such rules as the Adjutant General may promulgate, is relevant to

disposition under Sections 830 and 834 of this title (Articles 30

and 34); and

4. A statement of action taken on evidence adduced with respect

to uncharged offenses, as described in subsection F of this section.

D. Rights of accused.

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 this section. The accused has the

right to be represented at the preliminary hearing as provided in

Section 838 of this title (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 that is relevant

to the issues for determination under paragraph 2 of subsection A of

this section.

3. 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 paragraph 2

of subsection A of this section.

E. Effect of evidence of uncharged offense. If evidence

adduced in a preliminary hearing conducted under subsection A of

r paragraph 2 of subsection A of

this section.

3. 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 paragraph 2

of subsection A of this section.

E. Effect of evidence of uncharged offense. If evidence

adduced in a preliminary hearing conducted under subsection A of

this section 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 the opportunities for representation, cross-

examination, and presentation consistent with subsection D of this

section.

F. Effect of violation. The requirements of this section are

binding on all persons administering the Code, but failure to follow

the requirements does not constitute jurisdictional error. A defect

in a report under subsection C of this section is not a basis for

relief if the report is in substantial compliance with subsection C

of this section.