Basic Information about Article 32 Hearings
Article 32 of the Uniform Code of Military Justice (UCMJ) requires a hearing before certain cases go to General Court-Martial, which is the most serious type of court-martial that you can face. Article 32 hearings occur after charges are “preferred” to court-martial, but must occur prior to “referral” of charges to trial before a General Court-Martial. This “pre-trial” hearing is intended to require an independant officer (known as a Preliminary Hearing Officer – “PHO”) to review the evidence from the prosecution and any evidence offered by the Accused or the Defense Counsel to make determinations and recommendations regarding whether the case should move forward to a Court-Martial.
Some people equate an Article 32 hearing with a civilian grand jury. Both serve to require an independent assessment of the evidence and conclude with recommendations about taking the case to a felony trial. Both also use the same evidentiary standard — “probable cause.” Probable cause is a low and ill-defined standard in the eyes of the law, in fact, one of the lowest standards used in any courtroom. The military legal system generally defines “probable cause” in the most broad way possible, basically finding probable cause anytime the Prosecutor can establish that the crime might have occured.
The Article 32 hearing is the first time the Accused and their counsel have a right to access much of the investigative files and reports. It is also the first opportunity the Accused and their counsel have to formally present a defense to the allegations. Article 32 hearings can be waived by an Accused, but that should rarely occur for specific strategy based reasons. Some Article 32 hearings occur in person or via video teleconference. Some hearings consist only of introduction of documentary evidence and last just a few minutes “on-the-record,” while others involve lengthy testimony of many witnesses and can last several days in rare cases.
There are no decisions reached at the Article 32 Hearing. In fact, all parties involved have a right to submit additional legal matters after the conclusion of the hearing. Once the hearing and all submissions are complete, the hearing officer (PHO) prepares a report and sends it to the parties and convening authority commenting on four required issues: 1) whether the charges allege a crime; 2) whether there is probable cause to believe the Accused committed the offense charged; 3) whether there is proper legal jurisdiction over the case; and 4) a recommendation as to disposition, meaning, a recommendation as to whether the case should go forward to a General Court-Martial, or whether the case should go to a lower forum, like Special Court-Martial, or even Article 15. This recommendation may also include a recommendation that the case be dismissed entirely. The PHO’s report is generally published within a few days to a few weeks after the hearing. Typical turn-around is 5-10 days.
Who is the Judge at an Article 32 Hearing?
The Preliminary Hearing Officer (PHO) is typically a JAG and senior in rank to any other uniformed attorney on the case. The use of JAGs as Article 32 PHOs is somewhat new in some military branches, where they had previously used non-JAG officers to act as the hearing officer. In some cases, a military judge will be appointed as the PHO. If a military judge serves as the PHO they cannot later act as a judge on the same case. Regardless of who the PHO is, they must be unbiased. It is important for a military defense attorney to carefully scrutinize the background of the appointed PHO and raise challenges where conflict exists.
What Happens During an Article 32 Hearing?
Article 32 hearings are formal military hearings. They are recorded and follow a specific script. The script ensures the hearing covers all the required matters like rights to counsel, rights to access and presentation of evidence, and much more. Article 32 hearings are generally open to the public. An alleged victim has more rights than members of the public to make statements at the Article 32 hearing and to be present even when ordinary witnesses would not be permitted. During the course of the hearing, the Prosecution is first given the right to present evidence. They may do this with documents and/or witnesses. The Defense is then given the same right to present evidence through documents and witness testimony. Counsel for both parties are usually permitted to make a closing argument orally or in writing.
The Accused will be asked important questions during the Article 32 hearing. Many people who are later convicted of serious crimes wish they had handled their Article 32 hearing differently. The Accused will be asked who they want as their attorneys. It is important to think about this because this is a good opportunity to make a different decision regarding counsel. In almost every circumstance, if an Accused decides to select new attorneys at the Article 32 hearing, they will be given a delay in order to obtain new counsel. A lot of important long-term strategy decisions are made at the Article 32 hearing. It is important to have the attorneys you want handling your trial making those strategy decisions ahead of the Article 32, whenever possible.
The Accused will also be given an opportunity to present evidence and a sworn or unsworn statement. The decision about presenting evidence at an Article 32 can impact the entire case. Whether to “show your hand” and present certain evidence or arguments should be a decision made with attorneys you fully trust with the overall case strategy. We have many stories about cases where we had to make difficult decisions about presenting certain evidence and how those decisions later played out in our clients’ favor.
What Happens After An Article 32 Hearing?
Once the Article 32 officer drafts the report, which can take days or even weeks, it is provided to the General Court-Martial Convening Authority. The GCMCA has traditionally been a Commanding General or Admiral, but will soon involve Senior Prosecutors in certain cases. The GCMCA examines certain evidence to include the evidence presented at the Article 32, the charges, and the Article 32 hearing officer’s report before deciding whether or not to send the case to trial. The charges could be withdrawn and dismissed, but occurs rarely. Most Article 32 hearings end with referral to General Court-Martial, but it is an excellent opportunity to stop a case from moving forward in some circumstances.
It is important to keep in mind that the Article 32 PHO’s report is essentially just a recommendation. Although there are legal debates on this topic, even if the PHO determines there is not Probable Cause, the case case still be referred to a General Court-Martial if the GCMCA believes there is Probable Cause. Our firm has a long history of effectively fighting the “presumption of referral” and fighting Unlawful Command Influence when it comes to Article 32s.
Important Article 32 Takeaways
For many people, an Article 32 hearing is the first opportunity to defend their case. Often, the Accused has been aware of a pending federal criminal investigation against them for months, or even years prior to an Article 32. The attorneys for the Accused should have a specific strategy at the Article 32 hearing that fully explores the opportunity to win at the hearing versus the potential damage they could do to the Accused’s case at trial. The free-military-attorneys are often short-sighted about the strategy decisions made at this early stage.
