10 U.S.C. § 832 — Art. 32. Preliminary hearing required be-

Page 747 TITLE 10—ARMED FORCES § 832 2017—Subsec. (a)(1). Pub. L. 115–91, § 531(b)(1), inserted ‘‘, or otherwise act on,’’ after ‘‘to review’’ in introduc- tory provisions. Subsec. (a)(1)(D). Pub. L. 115–91, § 531(b)(2), added sub- par. (D). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2017 AMENDMENT Amendment by Pub. L. 115–91 effective immediately after this section takes effect as provided for in section 5542 of Pub. L. 114–328 (10 U.S.C. 801 note), see section 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title. EFFECTIVE DATE Section effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provi- sions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. 13825, set out as notes under section 801 of this title. § 831. Art. 31. Compulsory self-incrimination pro- hibited (a) No person subject to this chapter may com- pel any person to incriminate himself or to an- swer any question the answer to which may tend to incriminate him. (b) No person subject to this chapter may in- terrogate, or request any statement from, an ac- cused or a person suspected of an offense with- out first informing him of the nature of the ac- cusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial. (c) No person subject to this chapter may com- pel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him. (d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful in- ducement may be received in evidence against him in a trial by court-martial. (Aug. 10, 1956, ch. 1041, 70A Stat. 48.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 831(a) ...... 831(b) ...... 50:602(a). 50:602(b). May 5, 1950, ch. 169, § 1 (Art 31), 64 Stat. 118. 831(c) ...... 50:602(c). 831(d) ...... 50:602(d). The word ‘‘may’’ is substituted for the word ‘‘shall’’ throughout the revised section. § 832. Art. 32. Preliminary hearing required be- fore referral to general court-martial (a) IN GENERAL.—(1)(A) Except as provided in subparagraph (B), a preliminary hearing shall be held before referral of charges and specifications for trial by general court-martial. The prelimi- nary hearing shall be conducted by an impartial hearing officer detailed in accordance with sub- paragraph (C). (B) Under regulations prescribed by the Presi- dent, a preliminary hearing need not be held if the accused submits a written waiver to— (i) except as provided in clause (ii), the con- vening authority and the convening authority determines that a hearing is not required; and (ii) with respect to charges and specifica- tions over which the special trial counsel is exercising authority in accordance with sec- tion 824a of this title (article 24a), the special trial counsel and the special trial counsel de- termines that a hearing is not required. (C)(i) Except as provided in clause (ii), the convening authority shall detail a hearing offi- cer. (ii) If a special trial counsel is exercising au- thority over the charges and specifications sub- ject to a preliminary hearing under this section (article), the special trial counsel shall request a hearing officer and a hearing officer shall be provided by the convening authority, in accord- ance with regulations prescribed by the Presi- dent. (2) The purpose of the preliminary hearing shall be limited to determining the following: (A) Whether or not the specification alleges an offense under this chapter. (B) Whether or not there is probable cause to believe that the accused committed the of- fense charged. (C) Whether or not the convening authority has court-martial jurisdiction over the ac- cused and over the offense. (D) A recommendation as to the disposition that should be made of the case. (b) HEARING OFFICER.—(1) A preliminary hear- ing under this section shall be conducted by an impartial hearing officer, who— (A) whenever practicable, shall be a judge advocate who is certified under section 827(b)(2) of this title (article 27(b)(2)); or (B) when it is not practicable to appoint a judge advocate because of exceptional cir- cumstances, is not a judge advocate so cer- tified. (2) In the case of a hearing officer under para- graph (1)(B), a judge advocate who is certified under section 827(b)(2) of this title (article 27(b)(2)) shall be available to provide legal ad- vice to the hearing officer. (3) 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 prelimi- nary hearing. (c) REPORT TO CONVENING AUTHORITY OR SPE- CIAL TRIAL COUNSEL.—After a preliminary hear- ing under this section, the hearing officer shall submit to the convening authority or, in the case of a preliminary hearing in which the hear- ing officer is provided at the request of a special trial counsel to the special trial counsel, a writ- ten report (accompanied by a recording of the preliminary hearing under subsection (e)) that includes the following: (1) For each specification, a statement of the reasoning and conclusions of the hearing offi- cer with respect to determinations under sub- section (a)(2), including a summary of relevant witness testimony and documentary evidence presented at the hearing and any observations of the hearing officer concerning the testi- mony of witnesses and the availability and ad- missibility of evidence at trial. (2) Recommendations for any necessary modifications to the form of the charges or specifications. Page 748 TITLE 10—ARMED FORCES § 832 (3) An analysis of any additional informa- tion submitted after the hearing by the parties or by a victim of an offense, that, under such rules as the President may prescribe, is rel- evant to disposition under sections 830 and 834 of this title (articles 30 and 34). (4) A statement of action taken on evidence adduced with respect to uncharged offenses, as described in subsection (f). (d) RIGHTS OF ACCUSED AND VICTIM.—(1) The accused shall be advised of the charges against the accused and of the accused’s right to be rep- resented 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 section. (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 subsection (a)(2). (3) A victim may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing. A declina- tion under this paragraph shall not serve as the sole basis for ordering a deposition under sec- tion 849 of this title (article 49). (4) The presentation of evidence and examina- tion (including cross-examination) of witnesses at a preliminary hearing shall be limited to the matters relevant to determinations under sub- section (a)(2). (e) RECORDING OF PRELIMINARY HEARING.—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 under such rules as the President may prescribe. (f) EFFECT OF EVIDENCE OF UNCHARGED OF- FENSE.—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 un- charged offense considered; and (3) is afforded the opportunities for represen- tation, cross-examination, and presentation consistent with subsection (d). (g) EFFECT OF VIOLATION.—The requirements of this section are binding on all persons admin- istering this chapter, but failure to follow the requirements does not constitute jurisdictional error. A defect in a report under subsection (c) is not a basis for relief if the report is in sub- stantial compliance with that subsection. (h) VICTIM DEFINED.—In this section, the term ‘‘victim’’ means a person who— (1) is alleged to have suffered a direct phys- ical, emotional, or pecuniary harm as a result of the matters set forth in a charge or speci- fication being considered; and (2) is named in one of the specifications. (Aug. 10, 1956, ch. 1041, 70A Stat. 48; Pub. L. 97–81, § 4(a), Nov. 20, 1981, 95 Stat. 1088; Pub. L. 104–106, div. A, title XI, § 1131, Feb. 10, 1996, 110 Stat. 464; Pub. L. 113–66, div. A, title XVII, § 1702(a)(1), Dec. 26, 2013, 127 Stat. 954; Pub. L. 113–291, div. A, title V, § 531(a)(4)(A), Dec. 19, 2014, 128 Stat. 3363; Pub. L. 114–328, div. E, title LVI, § 5203(a)–(d), Dec. 23, 2016, 130 Stat. 2905, 2906; Pub. L. 117–81, div. A, title V, § 536, Dec. 27, 2021, 135 Stat. 1696.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 832(a) ...... 832(b) ...... 50:603(a). 50:603(b). May 5, 1950, ch. 169, § 1 (Art. 32), 64 Stat. 118. 832(c) ...... 50:603(c). 832(d) ...... 50:603(d). In subsection (a), the word ‘‘may’’ is substituted for the word ‘‘shall’’. The words ‘‘consideration of the’’ and ‘‘a recommendation as to’’ are inserted in the interest of accuracy and precision of statement. In subsection (b), the word ‘‘detailed’’ is substituted for the word ‘‘appointed’’, since the filling of the posi- tion involved is not appointment to an office in the constitutional sense. In subsection (c), the word ‘‘before’’ is substituted for the words ‘‘prior to the time’’. The words ‘‘of this sec- tion’’ are omitted as surplusage. In subsection (d), the word ‘‘are’’ is substituted for the words ‘‘shall be.’’ The word ‘‘does’’ is substituted for the words ‘‘in any case shall’’. Editorial Notes AMENDMENTS 2021—Subsec. (a)(1)(A). Pub. L. 117–81, § 536(a)(1), sub- stituted ‘‘hearing officer detailed in accordance with subparagraph (C).’’ for ‘‘hearing officer, detailed by the convening authority in accordance with subsection (b).’’ Subsec. (a)(1)(B). Pub. L. 117–81, § 536(a)(2), substituted ‘‘written waiver to—’’ and cls. (i) and (ii) for ‘‘written waiver to the convening authority and the convening authority determines that a hearing is not required.’’ Subsec. (a)(1)(C). Pub. L. 117–81, § 536(a)(3), added sub- par. (C). Subsec. (c). Pub. L. 117–81, § 536(b), inserted ‘‘or Spe- cial Trial Counsel’’ after ‘‘Convening Authority’’ in heading and substituted ‘‘to the convening authority or, in the case of a preliminary hearing in which the hearing officer is provided at the request of a special trial counsel to the special trial counsel,’’ for ‘‘to the convening authority’’ in introductory provisions. 2016—Pub. L. 114–328, § 5203(a), substituted ‘‘Prelimi- nary hearing required before referral to general court- martial’’ for ‘‘Preliminary hearing’’ in section catch- line. Subsecs. (a) to (c). Pub. L. 114–328, § 5203(a), added sub- secs. (a) to (c) and struck out former subsecs. (a) to (c) which related to requirement of preliminary hearing, hearing officer, and report of hearing results, respec- tively. Subsec. (d)(1). Pub. L. 114–328, § 5203(b)(1), substituted ‘‘this section’’ for ‘‘subsection (a)’’. Subsec. (d)(2). Pub. L. 114–328, § 5203(b)(2), substituted ‘‘that is relevant to the issues for determination under subsection (a)(2).’’ for ‘‘in defense and mitigation, rel- evant to the limited purposes of the hearing, as pro- vided for in paragraph (4) and subsection (a)(2).’’ Subsec. (d)(3). Pub. L. 114–328, § 5203(b)(3), inserted at end ‘‘A declination under this paragraph shall not serve as the sole basis for ordering a deposition under section 849 of this title (article 49).’’ Subsec. (d)(4). Pub. L. 114–328, § 5203(b)(4), substituted ‘‘determinations under subsection (a)(2)’’ for ‘‘the lim- ited purposes of the hearing, as provided in subsection (a)(2)’’. Subsec. (e). Pub. L. 114–328, § 5203(c), substituted ‘‘under such rules as the President may prescribe’’ for ‘‘as prescribed by the Manual for Courts-Martial’’. Page 749 TITLE 10—ARMED FORCES § 834 Subsec. (g). Pub. L. 114–328, § 5203(d), inserted at end ‘‘A defect in a report under subsection (c) is not a basis for relief if the report is in substantial compliance with that subsection.’’ 2014—Subsec. (a)(1). Pub. L. 113–291 inserted ‘‘, unless such hearing is waived by the accused’’ after ‘‘prelimi- nary hearing’’. 2013—Pub. L. 113–66 substituted ‘‘Preliminary hear- ing’’ for ‘‘Investigation’’ in section catchline and amended text generally. Prior to amendment, section provided that no charge or specification may be re- ferred to general court-martial for trial until thorough and impartial investigation of all the matters had been made. 1996—Subsecs. (d), (e). Pub. L. 104–106 added subsec. (d) and redesignated former subsec. (d) as (e). 1981—Subsec. (b). Pub. L. 97–81 substituted ‘‘The ac- cused has the right to be represented at that investiga- tion as provided in section 838 of this title (article 38) and in regulations prescribed under that section’’ for ‘‘Upon his own request he shall be represented by civil- ian counsel if provided by him, or military counsel of his own selection if such counsel is reasonably avail- able, or by counsel detailed by the officer exercising general court-martial jurisdiction over the command’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 effective on the date that is two years after Dec. 27, 2021, and applicable with respect to offenses that occur after that date, with pro- visions for delayed effect and applicability if regula- tions are not prescribed by the President before the date that is two years after Dec. 27, 2021, see section 539C of Pub. L. 117–81, set out as a note under section 801 of this title. EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title. EFFECTIVE DATE OF 2013 AMENDMENT Amendment by Pub. L. 113–66 effective on the later of Dec. 26, 2014, or the date of the enactment of the Carl Levin and Howard P. ‘‘Buck’’ McKeon National Defense Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) and applicable with respect to preliminary hearings conducted on or after that effective date, see section 1702(d)(1) of Pub. L. 113–66, set out as a note under sec- tion 802 of this title. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–81 to take effect at end of 60-day period beginning on Nov. 20, 1981, and to apply with respect to investigations under this section that begin on or after that date, see section 7(a) and (b)(3) of Pub. L. 97–81, set out as an Effective Date note under section 706 of this title. § 833. Art. 33. Disposition guidance The President shall direct the Secretary of De- fense to issue, in consultation with the Sec- retary of the department in which the Coast Guard is operating when it is not operating as a service in the Navy, non-binding guidance re- garding factors that commanders, convening au- thorities, staff judge advocates, and judge advo- cates should take into account when exercising their duties with respect to disposition of charges and specifications in the interest of jus- tice and discipline under sections 830 and 834 of this title (articles 30 and 34). Such guidance shall take into account, with appropriate con- sideration of military requirements, the prin- ciples contained in official guidance of the At- torney General to attorneys for the Government with respect to disposition of Federal criminal cases in accordance with the principle of fair and evenhanded administration of Federal criminal law. (Aug. 10, 1956, ch. 1041, 70A Stat. 49; Pub. L. 114–328, div. E, title LVI, § 5204, Dec. 23, 2016, 130 Stat. 2906.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 833 .......... 50:604. May 5, 1950, ch. 169, § 1 (Art. 33), 64 Stat. 119. Editorial Notes AMENDMENTS 2016—Pub. L. 114–328 amended section generally. Prior to amendment, text read as follows: ‘‘When a person is held for trial by general court-martial the commanding officer shall, within eight days after the accused is or- dered into arrest or confinement, if practicable, for- ward the charges, together with the investigation and allied papers, to the officer exercising general court- martial jurisdiction. If that is not practicable, he shall report in writing to that officer the reasons for delay.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title. § 834. Art. 34. Advice to convening authority be- fore referral for trial (a) GENERAL COURT-MARTIAL.— (1) STAFF JUDGE ADVOCATE ADVICE REQUIRED BEFORE REFERRAL.—Subject to subsection (c), before referral of charges and specifications to a general court-martial for trial, the con- vening authority shall submit the matter to the staff judge advocate for advice, which the staff judge advocate shall provide to the con- vening authority in writing. The convening authority may not refer a specification under a charge to a general court-martial unless the staff judge advocate advises the convening au- thority in writing that— (A) the specification alleges an offense under this chapter; (B) there is probable cause to believe that the accused committed the offense charged; and (C) a court-martial would have jurisdiction over the accused and the offense. (2) STAFF JUDGE ADVOCATE RECOMMENDATION AS TO DISPOSITION.—Together with the written advice provided under paragraph (1), the staff judge advocate shall provide a written rec- ommendation to the convening authority as to the disposition that should be made of the specification in the interest of justice and dis- cipline.