An Article 32 investigation is similar to a civilian courts’ grand jury. However, an Article 32 investigation is generally considered to provide broader and more extensive protections than the grand jury process. One critical difference is that an Article 32 is conducted by a single person instead of a random collection of citizens. The Article 32 pretrial hearing officer is often a highly-experienced JAG, and for certain cases it’ll be a military judge.
Unless an accused military member waives the right to this investigation, the Article 32 investigation will be conducted to determine if there is probable cause to believe the accused committed an offense. An accused has the right to hire and be represented by a civilian attorney, in addition to being represented by military defense counsel during the hearing. If you are facing an Article 32 investigation, it is important that you consult with an experienced attorney who is familiar with Article 32 investigations.
Article 32 investigations, generally referred to as an “Article 32,” get their name from the article in the Uniform Code of Military Justice which requires an impartial pre-trial hearing to investigate serious charges before the charges can be sent to a general court-martial. There are four purposes of the preliminary hearing conducted under Article 32:
- Determining if there is probable cause the accused committed a crime.
- Determining whether the military has court-martial jurisdiction over the accused and the alleged offense.
- Analyzing whether the charges, as written, have legal defects.
- Recommending how the case should be handled, whether by court-martial or come other process.
Article 32 investigations are triggered when the alleged conduct is so serious it calls for a trial by general court-martial. The commander directing the investigation will select a commissioned officer to serve as the investigating officer and to submit recommendations. Those recommendations can cover changes to the charges, withdrawal of the charges, alternative ways to resolve the case short of a court-martial, an analysis of the credibility of the person making the accusations, and comments on the overall strength of the government’s case.
Shortly after the investigating officer has been appointed, a hearing will be scheduled. The accused may attend the hearing, along with his counsel, and present evidence and arguments in his defense.
At the hearing, the prosecution presents evidence supporting the allegations. The evidence can be documentary or offered through testimony. The defense has the right to cross-examine prosecution witnesses and present its own witnesses. Most military rules of evidence do not apply during this hearing the way they would at a trial,
With a week or two after the hearing, the hearing officer will submit a report of the investigation to the commander. The commander is not bound to follow the advice of the pretrial hearing officer, but the advice can be a great help to the defense in a number of ways. Therefore, it is almost never a good idea to waive a right to an Article 32 hearing. Waiver should be considered only when a clear, guaranteed, significant benefit is given to the accused in exchange for forfeiting this right.
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