|  Article
32 of the Uniform Code of Military Justice provides that before
charges may be referred to a General Court-Martial, the charges
must be subjected to a pre-trial investigation. The immediate commander
of an accused will make the determination as to the necessity of
the case being referred to an Article 32 investigation. Generally
speaking, only allegations of serious misconduct warrant trial by
a General Court-Martial.
An Investigating Officer will be appointed to conduct the Art.
32 hearing. In the Navy, this officer is frequently a JAG officer,
however this is not required. In the other branches of the service,
the Investigating Officer is frequently a line officer, in the pay
grade of 0-4 or higher, who may have literally no prior experience
in the military justice system. If that occurs, a legal advisor
will be appointed to give guidance to the Investigating Officer.
The Article 32 hearing is similar to a preliminary hearing in the
civilian courts, however the rights of the accused at an Art. 32
are much broader than available to the defendant at a civilian preliminary
hearing. In the civilian judicial system, the hearing is for determination
of probable cause only and is not to be used as a discovery device
by the defense. Once probable case is established, the hearing is
effectively over. In the military, the Art. 32 hearing can be utilized
by the defense as a discovery tool, to give the defense the opportunity
to obtain as much information as possible at that point about the
charges. The accused has a right to call witnesses, however there
is no subpoena power at an Art. 32, so there is no way to compel
civilian witness to appear at the Art. 32. Military witnesses will
be produced if “reasonably available,” which generally
means that they are within a 100 mile radius of the Art. 32 hearing
and not otherwise precluded from appearing due to military commitments.
Telephonic testimony of witnesses out of the area is frequently
secured in lieu of live appearance. If a civilian witness refuses
to testify, or if a military witness is “unavailable,”
the Rules for Courts-Martial provide for acceptance by the Investigation
Officer of “alternative” evidence. What is frequently
encountered is the situation where the witness has previously made
a sworn statement and can not be produced at the Art 32. –
in that event the sworn statement of that witness is admissible
at the Art. 32 hearing. Although the Rules of Evidence are specifically
not applicable in most respects at the Art. 32, I have frequently
utilized the Rules for Courts-Martial to limit the admissibility
of classic “hearsay evidence” (I was told by John that
he saw ****). The argument here is that John’s statement is
unsworn, and is therefore not admissible at the Art. 32 over the
defense objection. In actuality, it is possible to have no witnesses
“available” for the Art. 32, which effectively means
the Art. 32 becomes a “paper hearing.”
At the Art. 32, if the key Government witness does testify, the
defense will be allowed broad entitlement to cross–examine
the witness. This is an excellent opportunity for the defense and
can frequently lead to the favorable resolution of the case. In
many cases, I have been able to effectively undermine the testimony
and/or credibility of the key prosecution witness at the Art. 32,
resulting in the withdrawal of the charges. This is also an opportunity
for the defense to “pin down” witnesses, a tactic that
can prove invaluable at trial if the witness changes his testimony.
If there are witnesses out there who may be adverse to the defense,
I generally will call them to testify at the Art. 32 so that I can
firm up what they are going to say at trial. There is no room for
surprises in a Court-Martial, so it is generally helpful to get
it all out on the table. A risk however in doing this is that the
Art. 32 Investigation Officer has the ability to recommend that
additional charges be referred based upon the evidence produced
at the Art. 32, so this is an area that the defense must proceed
in with due caution.
The accused has the right to present evidence at the Art. 32,
however this is a right that I frequently do not utilize, since
to do so gives the Government advance notice of my case. As to the
testimony of the accused, there are several options for the defense.
The accused certainly has the right to testify under oath –
that is a move that is almost universally not advised. The reason
for this is that the Government and the Investigating Officer will
have the full right to cross-examine the accused. This is something
the defense should want to avoid. The accused also has the right
to make an unsworn statement, verbally or in writing, and even through
his counsel. While this avoids the cross-examination problems as
noted above, it again is generally not a real wise move since that
statement not only gives the Government notice as what the defense
evidence may be at trial, it also can be used at trial to impeach
(contradict) the testimony of the accused at trial if there are
any inconsistencies. Finally the accused has the right to make no
statement – this is what I normally do to best preserve my
case and to protect my client.
After the Art. 32 is completed, the Investigating Officer must
file a report, summarizing the evidence presented at the Art. 32,
addressing legal issues in the case that were raised and making
recommendations for disposition of the charges. The Investigating
Officer can recommend the charges be handled in numerous ways, from
dismissal of the charges, all the way up to a General Court-Martial.
The recommendation of the Investigating Officer is just that –
a recommendation. As such, it may not be accepted by the appointing
authority. I have encountered numerous cases where the Art. 32 Investigation
Officer recommends either dismissal of the charges, or some lessor
form of action, only to have the case go to a General Court-Martial.
Waiver of the Art. 32 is something I see happen all too frequently
in my opinion. Certainly there are reasons to waive the Art. 32,
such as to secure a pre-trial agreement, but I have seen too many
occasions where the Art. 32 was waived when it probably should not
have been. If there are pre-trial negotiations in the works prior
to the Art. 32, a waiver of the Art. 32 may be required to secure
favorable endorsement of the pre-trial agreement that has been proposed.
In this event, what I would insist upon is that the waiver be a
conditional waiver, which means that if I do not get the deal I
have submitted, then we get the Art. 32 back. This tactic can be
very helpful in our efforts to secure the deal we want since the
Convening Authority knows we are right back at the Art. 32 if things
fall apart in the negotiation process.
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