Section 26.05.500. Investigation; preliminary hearing.

   (a) A charge or specification may not be referred to a general court-martial for trial until an investigating officer makes a thorough and impartial investigation of all the matters set out in the charge or specification. The investigating officer shall inquire into the truth of the matters set out in the charges, consider the form of the charges, and recommend a disposition of the case in the interest of justice and discipline.
   (b) The accused has the right to be represented by counsel at an investigation. If the accused requests the appointment of military counsel, the investigating officer shall refer the request to the senior force judge advocate, who shall promptly detail defense counsel to represent the accused at the investigation. Defense counsel detailed under this section shall meet the criteria for counsel under AS 26.05.475(d).
   (c) In cases where there has been no grand jury proceeding on a charge or no grand jury proceeding is required, the authority investigating the accused shall
        (1) advise the accused of the charges against the accused and of the accused's right to be represented by counsel under (b) of this section;
        (2) give the accused the opportunity to cross-examine witnesses against the accused, if the witnesses are available; a victim of an offense under AS 26.05.770 or 26.05.890 - 26.05.900 may not be required to testify at a preliminary hearing; a victim of an offense under AS 26.05.770 or 26.05.890 - 26.05.900 who declines to testify is considered unavailable for the purposes of the preliminary hearing;
        (3) give the accused the opportunity to present evidence on the accused's own behalf, either in defense or mitigation relevant to the limited purposes of the hearing; the investigating officer shall examine available witnesses requested by the accused.
   (d) The presentation of evidence and examination of witnesses at a preliminary hearing, including cross-examination, shall be limited to matters relevant to the limited purposes of the hearing.
   (e) If, after the investigation, the charges are referred to the court-martial, the investigating officer shall prepare a statement of the charges and the substance of the testimony taken, and a copy shall be given to the accused.
   (f) If an investigation of an offense under this chapter is conducted before the accused is charged with the offense and the accused is present at the investigation and provided with counsel and an opportunity to cross-examine witnesses and present evidence under (c) of this section, no further investigation of that charge is necessary under this section unless the accused demands further investigation 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 new evidence in the accused's own behalf.
   (g) If evidence adduced in an investigation under this section indicates that the accused committed an uncharged offense, the investigating officer may investigate the subject matter of that offense without the accused's having first been charged with an offense under this chapter if the accused is
        (1) present at the investigation;
        (2) informed of the nature of each uncharged offense investigated; and
        (3) provided with counsel and an opportunity to cross-examine witnesses and present evidence under (c) of this section.
   (h) In this section, "victim" means a person who is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set out in a charge or specification being considered and who is named in a specification being considered.

Authorities

26.05.510

Notes

References

AS 26.05.510 Advice of judge advocate and reference for trial.

History

(Sec. 4 ch 55 SLA 2016)