[§124B-54] Preliminary hearing required before referral to general court-martial. (a) Except as provided in subsection (b), 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 (d).
(b) In accordance with rules adopted by the governor or 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.
(c) The purpose of the preliminary hearing shall be limited to determining the following:
(d) A preliminary hearing under this section shall be conducted by an impartial hearing officer, who:
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.
(e) 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 under subsection (i), that includes the following:
(f) 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 shall have the right to be represented at the preliminary hearing as provided in section 124B-63 and in rules adopted thereunder. 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 (c).
(g) A victim shall not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to not be available for purposes of the preliminary hearing. A declination under this subsection shall not serve as the sole basis for ordering a deposition under section 124B-74.
(h) 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 (c).
(i) 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 in accordance with rules adopted by the governor or adjutant general.
(j) 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 is:
(k) The requirements of this section are binding on all persons administering this chapter; provided that failure to follow the requirements shall not constitute jurisdictional error. A defect in a report under subsection (e) shall not be a basis for relief if the report is in substantial compliance with that subsection.
(l) For purposes of this section, the term "victim" means a person who is: