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 “investigated” at an Article 32 investigation. This is not an investigation as you would normally think of it. It is better called a hearing, and is similar to a preliminary hearing in the civilian court system. The Special Court-Martial Convening Authority (SPCMCA) of an accused (usually an 0-5 or 0-6 level commander) will decide whether to order an Article 32 investigation. Generally speaking, only allegations of serious misconduct warrant trial by a General Court-Martial.
The SPCMCA will appoint an Investigating Officer (IO.) This might be a JAG, or it might be a line officer 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.
Unlike its civilian counterpart, in the military the Article 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 government will call witnesses who will testify as to their knowledge of the case, and the defense will get an opportunity to cross examine those witnesses. The accused also has the right to call witnesses however there is no subpoena power at an Article 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. I have represented service members at numerous Article 32 investigations in which all testimony was telephonic. The rules of evidence are generally inapplicable to an Article 32 investigation with certain exceptions. Your attorney should be well versed in military law to know these exceptions.
The biggest advantage to an Article 32 investigation is that the defense can “pin down” a witness’ version of events which can later be used should the case be “referred” to trial. While the accused has the right to present evidence at the Article 32, frequently the defense will not do so. There can be sound tactical reasons for such a decision, but again only a lawyer with extensive background in military law will know whether to do so. Similarly, the accused has the right to testify at an Article 32 hearing, but this is something that is rarely done.
After the Article 32 hearing is completed, the Investigating Officer must file a report, summarizing the evidence presented at the Art. 32 and make a recommendation 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. This is probably the one area where the Article 32 hearing is the most different from a civilian court preliminary hearing. The recommendation of the Investigating Officer is not binding on the Convening Authority. I have represented numerous accused where we “won” the Article 32 hearing and where the Article. 32 Investigating Officer recommended either dismissal of some or all of the charges only to have the case go to a General Court-Martial.
I served six years on active duty in the Army JAG Corps and 16 years in the Army JAG Corps reserves. I served as a prosecutor, defense counsel and as appellate defense counsel. For more than 20 years, I have represented service members of all military branches in courts-martial. I have participated in more Article 32 hearings than I can remember. While my background is with the Army, I have appeared in Air Force, Navy, Marine Corps and Coast Guard courts. I am intimately familiar with all the service branches, and the subtle differences from one branch to another. While all courts-martial are governed by the Uniformed Code of Military Justice, there are differences between how each branch operates at court-martial. Mr. Cassara knows those differences. In addition, I have appeared before the Army Court of Criminal Appeals, the Air Force Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals and the Coast Guard Court of Criminal Appeals. In other words, I have represented members of all services at courts-martial and on appeal of court-martial convictions.