What are Article 32 Pretrial Investigations?
Article 32, Uniform Code of Military Justice provides for a pretrial investigation of any preferred criminal charges before they may be referred for trial by general court-martial.
This important aspect of the military justice system is designed to afford an accused protection against being criminally charged and sent to trial without first being allowed to challenge the supporting evidence against him.
Article 32 pretrial investigations are presided over a single military officer appointed by a convening authority or designed commander in the military justice system.
Article 32 officers must be senior in rank to the accused and most importantly, impartial or neutral and detached from the proceedings. The officer’s function is to preside over an adversarial hearing whereby the government must present evidence sufficient to convince the officer, to his or her reasonable satisfaction, that there is sufficient supporting evidence of the charged offenses to warrant criminal prosecution. The government is not required to put forth all of its evidence or to call all of its witnesses. Rather, it must only put forth enough evidence to meet the reasonable satisfaction standard applicable in these limited pretrial proceedings.
An accused has various substantive rights afforded during Article 32 pretrial investigations
An accused has the right to be represented at all stages of these proceedings by counsel, to include detailed military defense counsel and retained civilian counsel at no expense to the government, or alternatively, at the accused’s own expense.
The accused may also confront and cross-examine any reasonably available witnesses whom the government presents or calls at the hearing.
The accused may also request the appearance of witnesses on his or her own behalf, or alternatively, those he deems important to the scope of the investigation. Witness requests by the accused must be made in writing to the Article 32 Investigating Officer.
An accused may also present other forms of evidence on his or her behalf such as letters, statements, affidavits, service record information, and any other information relevant to issues such as guilt, innocence, applicable defenses, extenuation and/or mitigation.
An Article 32 pretrial investigation is a prerequisite to referring a case and its charges for trial by general court-martial. However, an accused may waive the right to a pretrial investigation. Whether or not to waive this important right is a tactical decision that should be made only after careful consultation, discussion and deliberation with an experienced defense counsel. The facts of each case vary, as do the pros and cons of proceeding with versus waiving an Article 32 hearing.
When proceeding to an Article 32 hearing, it is important to have a clear strategy
One potential strategy is to challenge the strength of the government’s evidence with respect to some portion of the charged offenses.
Another strategy may be to present extenuating and mitigating information to not contest guilt in the technical sense, but instead to lessen an accused’s culpability.
A third potential strategy may be to gain as much information and discovery of the government’s case as possible without seeking to challenge the accused’s guilt or level of culpability.
Strategic decisions with respect to pretrial investigations vary with the facts and circumstances of each case. Developing a clear Article 32 hearing strategy will provide a strong framework by which the accused and counsel may plan and prepare for this important event. It is important to have experienced defense counsel assist you in this process.
The order of march at an Article 32 hearing
First, the parties are afforded the chance to make an opening statement.
Second, the government presents its case by calling witnesses and offering documents and/or other forms of evidence. The defense is allowed to cross-examine government witnesses and challenge offered evidence.
Third, the defense is afforded the chance to present its own witnesses or evidence, but is not required to do so. An accused may also testify during the defense case. If the accused opts to do so, he or she may make a sworn or unsworn statement.
Alternatively, the accused may exercise the right to remain silent by not saying anything and his silence may not be considered evidence against him. If the accused elects to make a sworn statement, he will be subject to cross-examination by government counsel and open to questioning by the Article 32 Investigating Officer.
If he elects to make an unsworn statement, he will not be required to answer questions posed to him by anyone. Fourth, if the defense presents any evidence, the government may offer matters in rebuttal, but is not required to do so.
Fifth and finally, the parties are afforded the chance to make closing statements or remarks. Closing remarks may include comments on the strength and/or weakness of the evidence presented, applicability of legal defenses and recommendations for the disposition of the charges.
At the conclusion of an Article 32 pretrial investigation, the presiding Officer must make written findings and recommendations as to the disposition for each of the preferred charges.
If the Officer is reasonably satisfied that enough evidence exists to warrant criminal prosecution of a particular charged offense, he or she must set forth a summary of the evidence supporting this conclusion. Thereafter, the Officer may recommend what he or she believes, based on the evidence presented, to be an appropriate disposition of the charges.
While an Article 32 hearing is required before a case may be referred for trial by general court-martial, the Officer may recommend general court-martial or something less. Lesser forms of disposition may include special or summary court-martial, non-judicial punishment pursuant to Article 15, Uniform Code of Military Justice or something even less punitive such as adverse administrative action.
The Article 32 Officer’s findings and recommendations are then sent forward to his or her appointing authority for approval or disapproval. The Convening Authority is free to accept or reject the Officer’s findings and recommendations in whole or in part and thereafter may dispose of the preferred charges within his or her sole discretion.
If you have been criminally charged in the military justice system under the Uniform Code of Military Justice and believe you face trial by general court-martial, you are entitled to an Article 32 pretrial investigation. If you require legal representation in connection with your Article 32 hearing, call Civilian Military Defense Attorney John L. Calcagni III, Esq. for a free consultation today at 401-351-5100.