UCMJ Article 32 Preliminary Hearing Defense
In 2014, a substantial change in the UCMJ took place. The mandatory proceeding under UCMJ Article 32 prior to referral of charges for trial by General Court-Martial transitioned from an "investigation" to a "preliminary hearing." The primary motive for the change was the extensive cross-examination of complaining witnesses in military sexual assault cases. Under the "investigation" model, defense attorneys could require military witnesses, including those alleging sexual assault, to testify at the Article 32 investigation and conduct extensive discovery by examination under oath. Civilian witnesses, on the other hand, could be invited to testify but could not be compelled to testify.
The origins of the Article 32 go back to a time when there were not military criminal investigative organizations (MCIOs) like NCIS, Army CID, CGIS, and Air Force OSI. The Article 32 investigation was actually an investigation to compile witnesses and evidence against the accused. In fact, the UCMJ, until the Military Justice Act of 2016, imposed an 8 day requirement to conduct the investigation after an accused was arrested or ordered into confinement. The Article 32 investigating officer could order military authorities to produce evidence and military witnesses to attend and testify. The Article 32 investigating officer's report was truly a written investigation (sometimes the only written investigation decades ago) that could be relied upon for the referral of charges to a court-martial.
The preliminary hearing model is aimed to root out baseless charges, and the defense's ability to conduct discovery is now limited. The purpose of the Article 32 preliminary hearing is to determine whether there is probable cause to be believe a UCMJ offense was committed and that the accused committed it. The standard for producing witnesses is higher - the witness's testimony must be relevant, not cumulative to other evidence at the hearing, and necessary for the purposes of the hearing; also, for military witnesses, it is the witness's commander, not the preliminary hearing officer, that determines witness availability. A preliminary hearing officer's report is less of an actual investigation and more of a legal summary of the charges.
But the Article 32 is still a meaningful tool for the defense. At Korody Law, we only waive an Article 32 preliminary hearing after a complete evaluation of our client's defense strategy. There can be compelling reasons to go through an Article 32 preliminary hearing and obtain the preliminary hearing officer's report. Reasons to participate in the Article 32 include: obtaining a favorable finding that probable cause does not exist for one or more charges; obtaining a favorable recommendation for a forum lower than a General Court-Martial for some or all charges, such as a Special Court-Martial or Non-Judicial Punishment; obtaining a statement from the preliminary hearing officer regarding the challenges the government will face to bring the case to trial (defenses, motions, lost evidence, witness availability issues); obtaining insight into the government's theory of prosecution; presenting exculpatory evidence overlooked by the MCIOs; or, obtaining a favorable recommendation on possible dispositions (plea agreements) by the preliminary hearing officer.
In some cases, it may be beneficial to waive the Article 32 preliminary hearing. Reasons to waive a preliminary hearing include: the potential for additional charges as a result of the Article 32 preliminary hearing; avoiding giving government counsel a third-party review by the preliminary hearing officer of its charges and case; and, avoiding a possible preliminary hearing officer report that characterizes the offenses charged as extremely serious warranting severe punishment.
The decision to participate or waive an Article 32 preliminary hearing is a very important decision for any military servicemember facing UCMJ charges that may be referred for trial by General Court-Martial. All UCMJ charges are serious - in addition to the life-long federal criminal conviction, UCMJ offenses carry the potential for severe punishments including confinement, loss of pay and rank, and punitive (bad conduct and dishonorable) discharges or a dismissal for officers.
Attorney Patrick Korody is a Navy JAG veteran who specializes in UCMJ military defense. He has represented hundreds of enlisted members and officers facing UCMJ charges. He was certified as a military justice specialist by the Navy. While on active duty and as a reservist, he has served as a preliminary hearing officer, staff judge advocate (SJA), trial counsel, senior trial counsel, defense counsel, senior defense counsel, and victims' legal counsel. His office is in Jacksonville, FL, and he travels worldwide to defend those defending our freedom. Call him for a free consultation on UCMJ charges at (904)383-7261.