Section 400.510  Pretrial Investigation

a)         No charge or specification may be referred to a general or special court-martial for trial until a thorough and impartial investigation of all matters set forth in the charge or specification has been made.  This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation of the disposition that should be made of the case in the interest of justice and discipline. (Code Section 32(a))

b)         Who May Direct Investigation.  Unless prohibited by applicable law or regulation, an investigation may be directed under the Code by any court-martial convening authority (see Section 400.410).  That authority may also give procedural instructions not inconsistent with this Manual.

c)         Investigating Officer.  The commander directing an investigation under this Manual shall detail a judge advocate officer who is not the accuser to be the investigating officer. The investigating officer shall conduct the investigation and make a report of conclusions and recommendations.  The investigating officer is disqualified to act later in the same case in any other capacity.

d)         Scope of Investigation.  The investigating officer shall inquire into the truth and form of the charges, and such other matters as may be necessary to make a recommendation of the disposition of the charges.

e)         The accused shall be advised of the charges against him or her and of the right to be represented by counsel at the investigation (see Section 400.805).  At the investigation, full opportunity shall be given to the accused to cross-examine witnesses, if they are available, and to present anything the accused may desire on the accused's own behalf, either in defense or mitigation. The investigating officer shall examine available witnesses requested by the accused.  If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides. A copy shall be given to the accused. (Code Section 32(b))

f)         If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination and presentation prescribed in subsection (e), no further investigation of that charge is necessary under this Section unless it is demanded by the accused 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 any new evidence in the accused's own behalf. (Code Section 32(c))

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 and make appropriate conclusions and recommendations as to disposition without the accused having first been charged with the offense, if the accused is:

1)         present at the investigation;

2)         informed of the nature of each uncharged offense investigated; and

3)         afforded the opportunities for representation, cross-examination and presentation prescribed in subsection (e). (Code Section 32(d))

h)         Witnesses.  In general, any witness whose testimony would be relevant and not cumulative shall be produced if reasonably available.  If not reasonably available, the investigating officer may consider alternatives to testimony (see RCM 405g(4), incorporated by reference in Section 400.105).

i)          Evidence. Subject to Section 400.700, evidence, including documents or physical evidence that is under the control of the government and that is relevant and not cumulative shall be produced if reasonably available.  This evidence includes evidence requested by the accused if the request is timely.  Evidence is reasonably available if its significance outweighs the difficulty, expense, delay and effect on military operations of obtaining the evidence.  If the evidence is not reasonably available, the investigating officer may consider alternatives to evidence as provided in RCM 405g(5), incorporated by reference in Section 400.105.

j)          Procedure for Presentation of Evidence, Objections, Access by Spectators, and Presence of the Accused.  The provisions of RCM 405(h), incorporated by reference in Section 400.105, shall apply.

k)         Illinois Military Rules of Evidence.  Subpart F, other than Sections 400.610, 400.615, 400.620, 400.625, 400.695 and 400.700, shall not apply in pretrial investigations under this Manual.

l)          Report of Investigation.  The provisions of RCM 405(j), incorporated by reference in Section 400.105, shall apply.

m)        Waiver.  The accused may waive an investigation under this Manual.  In addition, failure to make a timely objection under this Manual, including an objection to the report, shall constitute a waiver of the objection. Relief from the waiver may be granted by the investigating officer, the commander who directed the investigation, the convening authority, or the military judge, as appropriate, for good cause shown.

n)         The requirements of this Section are binding on all persons administering the Code, but failure to follow them does not constitute jurisdictional error. (Code Section 32(e))