(l) R.C.M. 405(i)(3)(A)(ii) is amended to read as follows: "(ii) If the Government objects to the production of the evidence, defense counsel may request that the preliminary hearing officer determine whether the evidence should be produced. The preliminary hearing officer shall determine whether the evidence is relevant, not cumulative, and necessary to a determination of the issues under R.C.M. 405(a). If the preliminary hearing officer determines that the evidence shall be produced, counsel for the Government shall make reasonable efforts to obtain the evidence. If such evidence is not reasonably available, the Government will include a written explanation documenting the unavailability of the evidence or efforts to obtain such evidence, which shall be included in the preliminary hearing report under R.C.M. 405(m)."

Original text (before tracking)