There has been much commentary in the military court-martial world about the benefit of representing a client before a preliminary hearing under Article 32, UCMJ, especially in a military sexual assault case. Congress changed the Article 32 process from an investigative hearing to a preliminary hearing in 2014, which was aimed to limit the ability to use the hearing as a means of discovery and to extensively cross-examine witnesses, especially alleged sexual assault victims. In fact, Congress went so far as to give the alleged victims of sexual assault the right to refuse to testify at an Article 32, even if they attend the hearing and observe!
These changes left many defense counsel pondering the benefit of even participating in the Article 32 hearing. In my opinion, it is rarely beneficial, especially in a military sexual assault case, to waive the Article 32 preliminary hearing. Here are some reasons why:
1) The Article 32 hearing is still an opportunity to defend against baseless charges. The preliminary hearing process has made many government counsel lazy and they may forget to put on evidence of every element of every charge. Also, many sexual assault charges preferred and forwarded to an Article 32 are not supported by reliable and competent evidence. A defense counsel who can get a favorable finding with regard to probable cause from the preliminary hearing officer is in a better position to negotiate and/or lobby for an outright dismissal.
2)The Article 32 hearing is still an opportunity to obtain discovery. There is still the possibility of calling witnesses and requesting evidence be produced. Defense counsel need to use the rights afforded to an accused to the limits provided by the rules.
3) The Article 32 preliminary hearing process is still new and there are a lot of legal errors that may arise. There is very little appellate case law or guidance on the standard of probable cause to be applied and the impact of findings and recommendations on a convening authority. A defense counsel should attempt to introduce as much legal error as possible at an Article 32 hearing to preserve motions in front of the military judge.
Korody Law is based in Jacksonville, FL and represents military members worldwide who are under investigation or have been charged with violations of the UCMJ. Patrick Korody is a former Navy JAG who was recognized by the Judge Advocate General of the Navy for his military justice expertise.
Mr. Korody’s office is conveniently located in Jacksonville, Florida, close to Naval Station Mayport, Naval Air Station (NAS) Jacksonville, and Naval Submarine Base Kings Bay. He frequently travels to NAS Pensacola, Eglin Air Force Base, Fort Stewart, and other installations in the Southeastern United States.