When The Military Investigators Come Calling…®

MCNABB ON THE ARTICLE 32 HEARING-
WHAT THE ACCUSED AND HIS FAMILY NEEDS TO KNOW

For a service-member "caught up" in the military justice system, the worst part may be the uncertainty. He is probably completely unfamiliar with the mechanisms of the court-martial process. He will most likely hear unfamiliar words and acronyms such as "OSI," "CID," "charge sheet," and others.

If he hears the phrase "Article 32 hearing," it can mean many things, but it always means that the case is very serious. In this article, we will describe what an Article 32 hearing (also called an Article 32 investigation) is all about, who the participants are, what the defense needs to do before it takes place and what to do when it is over.

The Fifth Amendment of the United States Constitution guarantees that no person will have to face trial for a capital or infamous crime (read that as cases where the defendant could get the death penalty or other felony cases) without the prosecution first going through the "grand jury" process. A grand jury is a secret group of your fellow citizens that are called together to consider whether potential defendants should go to trial (in courts-martial, the defendant is called the accused). At a grand jury, the prosecutor that wants to turn a particular person into a defendant puts on a summarized case. There is no judge, no defense lawyer, and the potential defendant probably doesn't know the grand jury is taking place. The rules of evidence don't apply, so the prosecutor can bring a witness that says, "My friend Joe talked to a guy named Ed, and Ed told him that Martha says so-and-so committed a crime." After presenting his case to the grand jury, the prosecutor asks the grand jury to return an indictment, which means that the grand jury thinks that there is "probable cause" that the person in question did what the prosecutor claims he did. Once that happens, the foreperson of the grand jury signs a paper, an indictment, and the person in question has been indicted. The prosecution can now go forward with the case.

Fortunately, for servicemen and women potentially facing a general court-martial, the "guarantee" of a grand jury doesn't apply. Instead, the Uniform Code of Military Justice (U.C.M.J.) demands a vaguely similar proceeding, an Article 32 hearing. As you will see, there are differences between a grand jury and an Article 32 hearing and most of them are good for the service-member.

The two main provisions on Article 32 hearings are Article 32, UCMJ and Rule 405 of the Rules for Courts-Martial. Article 32 hearings only happen when a convening authority is considering sending an accused to a general court-martial. A convening authority is an officer that has the authority to convene, or order, a court-martial. Only Flag Officers have the authority to convene a general court-martial. If the accused is facing a summary or a special court-martial, then he won't have an Article 32 hearing (even if he wants one). General courts-martial are serious business since, unlike summary or special courts-martial, there is no limit on punishment (other than the limit listed in the crime itself). For example, a service-member facing a special court-martial for wrongfully using ecstasy one time, a violation of Article 112a, can receive a maximum sentence of one-year confinement, a bad-conduct discharge, and additional punishments involving reduction in rank, fines, etc. By comparison, that exact same service-member, facing the exact same charge at a general court-martial, can receive a maximum of 5 years confinement and a dishonorable discharge.

As you see, general courts-martial are the military's version of trials for "capital, or other-wise infamous crimes." For a variety of reasons, general courts-martial are also more expensive for the government to prosecute than special courts-martial. As a result, it is not in the government's interest to send a service-member to a general court-martial unless the crime is very serious and there is "probable cause" that the accused did it. General court-martial convening authorities (GCMCAs) don't want to send an innocent person to trial or a service-member to a general court-martial when a lesser forum could serve the interests of justice and discipline. The Article 32 requirement addresses this potential problem for GCMCAs by ensuring that an "independent" officer examines the case before the case can be referred to a general court-martial.

Members of the Armed Forces have a variety of rights at an Article 32 hearing that are not available to civilians under grand jury investigation. See R.C.M. 405(f). The most important of these is to have the Article 32 hearing in the first place. An accused should NEVER waive (give up) the right to an Article 32 hearing unless, after thoroughly discussing it with his attorney(s), he has already decided to plead guilty. If an accused is definitely going to plead guilty, then he might waive the Article 32 hearing in hopes of gaining some extra consideration from the convening authority (it saves time, money, and effort). Because an accused has the right to cross-examine prosecution witnesses and call reasonably available witnesses of his own, he should ALWAYS have an Article 32 hearing if he plans to plead not guilty or even if he is just considering it.

As with any important endeavor, Article 32 hearings demand preparation. The defense counsel should file a request for "discovery" with the prosecuting officer (sometimes called the Trial Counsel). This means that the defense attorney asks for the documents and other evidence for the case. There is no doubt that a military accused has important pretrial discovery rights at an Article 32 investigation. See United States v. Roberts, 10 M.J. 308, 311 (CMA 1981). The defense wants as much information as possible to create the best strategy for the Article 32 hearing. If the prosecution denies the written request for discovery, then there may be an additional issue the defense can press later on. The worst thing that can happen is that the defense doesn't get the discovery, which only means that the defense is in the same position it would have been in if it never asked.

Of course, there will also be witnesses at the Article 32 hearing. This is the defense's chance to do a preliminary evaluation of the strength of the government's case. The defense may think that a certain witness will be weak, only to see that he delivers very damaging testimony. Or, perhaps the prosecution's "star witness" can't get his facts straight and appears nervous and uncertain.

Another important aspect of witness testimony at an Article 32 hearing is that the witnesses are really testifying. This gives the defense the chance to try to "lock" them in to a certain account of events. That way, the defense knows what to expect at trial and, if the witness tries to change his story, the defense can expose him. The convening authority may want the proceeding recorded for transcription. If so, the convening authority will issue an order to that effect. If not, the defense should forward a request for such a transcript to the convening authority before the Article 32 hearing convenes. If this doesn't work, then the defense should do whatever it can to try and have the proceeding recorded. That may mean bringing its' own recording equipment. The investigating officer may prevent the defense from recording the proceedings on its own, but the defense should at least try (after asking for permission). Recorded testimony and preferably transcripts are great tools for trial preparation.

The defense needs to put serious thought into which witnesses, if any, it wants to call. Witnesses must be "reasonably available" for the proceeding. In general, calling a witness just to show good military character or similar character traits probably isn't worth it (although these witnesses can play a major role at trial). It is very unlikely that the investigating officer or the convening authority will make his or her decision based solely upon character evidence. If the prosecution has a very weak case, however, it may be worth it. The most important types of witnesses are fact witnesses and credibility witnesses. Fact witnesses are other people such as fellow service members, friends, family members, or anyone else that can refute or cast doubt on the factual allegations against the accused. For example, if the defense expects the prosecution to offer evidence that the accused started a fight in the galley or chow hall, then a witness that could testify that the accused was minding his own business when the "victim" hit him would be a great fact witness. Credibility witnesses can also be very important at Article 32 hearings, especially in sexual or indecent assault cases. For example, if an accused can show that the person accusing him was kissing, flirting or acting friendly towards him after the alleged assault took place, it can cast doubt on the alleged victim's credibility. There may even be witnesses that can provide a motive for the alleged victim to lie, such as the alleged victim being afraid her boyfriend or husband would discover she was involved with the accused.

As you have seen, the accused has the right to be present at the Article 32 hearing and has the right to assistance of counsel. There are three rights in terms of counsel options: the right to detailed counsel, the right to request individual military counsel, and the right to retain civilian counsel. Detailed counsel is simply the attorney detailed to represent the accused. If the accused knows of another military lawyer that he would like to have on his case, he has the right to request that lawyer. This type of lawyer is called individual military counsel. Some officers, such as military judges, are automatically disqualified from being individual military counsel. Otherwise, it is up to that officer's CO to determine if the requested lawyer is "available." Lastly, an accused has the right to hire civilian counsel at no cost to the government. An accused can keep any combination of these lawyers for his legal team.

There will be a variety of other personnel at the Article 32 hearing. First, there will be the investigating officer (IO), who is appointed by the convening authority. He must hold rank of O-4 or higher or have legal training (but IO's usually are both) and will most likely be a Judge Advocate or officer in his service's JAG Corps. The IO has the responsibility of conducting the Article 32 hearing, ruling on objections and issuing a written report to the convening authority. As you can imagine, there are all kinds of investigating officers. Some merely "rubber-stamp" the prosecution's case, while others aggressively seek the truth behind what "really happened."

One of the IO's most important functions is to rule on objections to evidence. Evidence must be "relevant" to the proceedings and should not be cumulative or redundant. However, very few of the other Military Rules of Evidence apply in an Article 32 hearing. This means that just about anything, and certainly evidence that could never be admitted at trial, is available for the IO to review.

One extremely important rule of evidence that does apply in Article 32 hearings is Military Rule of Evidence 412. M.R.E. 412 is the military's version of what is commonly known as a "rape-shield" law. You may have heard of this rule during the preliminary stages of Los Angeles Lakers star Kobe Bryant's rape trial in Colorado. This rule is one of "privilege," such as attorney-client privilege and the right against self-incrimination. M.R.E. 412 prevents the defense from asking any questions, raising any issues, or presenting any evidence designed to show that an alleged sexual or indecent assault victim has a particular sexual character or predisposition. The intent behind this rule is to prevent victims from being terrorized on the witness stand by seeing their entire sexual history brought up in court. Essentially, this means that an accused cannot argue or offer evidence along the lines of, "of course she gave consent, she is very promiscuous and that is what promiscuous people do." However, there are a few narrow exceptions to the rule. How an attorney handles potential M.R.E. 412 issues is one of the most important, if not the most important, aspects of a sexual-assault, indecent assault, or similar case.

How much of its own case the defense presents should depend on the strength of the government's case. If there is no way to avoid referral to general court-martial, then it is probably better to use the Article 32 hearing as a tool for discovery. Why expose your witnesses to the prosecution's cross-examination unnecessarily? By contrast, if the government's case is weak, the defense may want to offer all of its evidence and argument in hopes of convincing the IO to recommend dismissal of the charges. It all depends on the specific nature of the case. Again, the defense cannot make these decisions without substantial preparation. If the government tries to convene the Article 32 hearing before the defense has time to prepare, then the defense counsel should make a formal request for more time. The request should state why the defense needs more time and why the continuance should be granted. Even if the request is denied, the defense will be able to raise the issue later with the military judge.

After the Article 32 hearing is over, defense counsel needs to be ready to file objections. The IO may require that the prosecution and defense attorneys follow up any oral objections made during the investigation with written objections. Defense counsel also needs to be ready to object, if necessary, to the IO's report. The IO will generate a report for the convening authority. The most important part of the report is whether the IO thinks that "reasonable grounds" exist to believe that the accused committed the offense or offenses in question. Other important parts of the report may include: whether the IO believes the offenses should be addressed at a general court-martial or a lesser forum (such as a special court martial), the IO's opinion of the credibility of the witnesses, whether new charges should be added or whether the current charges should be amended, and the IO's opinion on potential trial issues, such as the legality of searches and the availability of necessary witnesses. Defense counsel can send a letter to the convening authority repeating objections to the IO report and urging its side of the case. It is important to remember that the IO's recommendation is NOT binding on the convening authority. If the defense successfully convinces the IO to recommend that the convening authority dismiss the charges or refer them to a special court-martial, the convening authority can still refer the charges to a general court-martial.

As you can see, the keys to gaining advantage from an Article 32 hearing are preparation and aggressiveness. It is the defense's chance to evaluate the government's case, to lock witnesses into their testimony, and to let the government and even the alleged victim (if there is one) know that the accused intends to fight. The defense should use this opportunity to enhance the chances for an acquittal at trial, to gain more leverage for potential plea negotiations, or, when the circumstances warrant, arguing for a dismissal.