No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made.
Article 32, U.C.M.J.
1. INTRODUCTION: An Article 32 Investigation is a prerequisite to trial by general court-martial and if used effectively can be one of the most important tools a defense attorney has in his to defend the client. However, to utilize the Article 32 Investigation to your client’s advantage the defense counsel must know the rules and prepare in advance.
2. RULES FOR ARTICLE 32 INVESTIGATIONS. The rules for Article 32 Investigations flow from three major sources: (1) Rules for Court Martial (R.C.M.) 405, (2) case law and (3) DA PAM 27-17. It is a sure to have a notebook containing these legal sources along with other material pertaining to Article 32 Investigations. A sample Article 32 notebook accompanies this information paper. The Military Rules of Evidence (M.R.E.) generally do not apply to Article 32 Investigations. However, M.R.E. 301, M.R.E. 302, M.R.E. 303, M.R.E. 305, M.R.E. 412 and the rules of evidence regarding privileges do apply.
2. PURPOSE OF ARTICLE 32 INVESTIGATION: The purposes of an Article 32 Investigation are specifically set out in R.C.M. 405(a) discussion and R.C.M. 405(e). Generally there are four recognized purposes: (1) to inquire into the truth of the matter alleged in the charges, (2) to consider the form of the charges, (3) to make a recommendation as to disposition of the charges and (4) discovery (See 405a discussion and United States v. Roberts, 10 M.J. 308 (C.M.A. 1981). Defense counsel must ensure that the Article 32 Officer understands the importance of discovery. Discovery will always be an important purpose for defense counsel, even if there are other purposes. Other purposes include allowing the client to see the government’s compelling case (client control); showing weaknesses in the governments case to improve the negotiating posture, or winning the case.
3. BURDEN OF PROOF: The Investigating officer must determine whether “reasonable grounds exists to believe the accused committed the offense.” R.C.M. 405(j)(2)(H). Reasonable grounds may arguably be translated as “probable cause” or “having more evidence for than against.”The recommendations of the Article 32 Officer are advisory only. Accordingly, the defense counsel must make a tactical decision about what evidence present to reveal at the Article 32 hearing.
4. INVESTIGATING OFFICER (IO): The IO must be appointed by the convening authority and should be a field grade officer or an officer with legal training (judge advocate). R.C.M. 405(d)(1). The IO must be impartial and may be disqualified anytime his/her impartiality might be reasonably questioned.
5. LEGAL ADVICE: Any advice received must be from a neutral source and must not be given ex parte. United States v. Payne, 3 M.J. 354 (1977). As a matter of practice, most SJA offices assign an administrative law attorney to advise the IO. The defense counsel should, as a matter of course, request to be present during any session with the legal advisor. The defense counsel should also request the IO memorialize in writing any discussion he/she has had with the legal advisor, convening authority or anyone else associated with the case even if it concerns only procedural issues.
6. DEFENSE COUNSEL: The accused has the right to defense counsel at the Article 32 hearing. This right includes the right to request individual military counsel or civilian counsel at no expense to the government. R.C.M. 405(d)(2). The accused may request a delay to obtain counsel of choice. United States v. Maness, 48 C.M.R. 512 (C.M.A. 1974), but see United States v. Pruner, 33 M.J. 272 (C.M.A. 1991) (Investigation will not be unduly delayed to acquire civilian counsel). Defense counsel may request a delay to prepare for the Article 32 hearing United States v. Miro, 22 M.J. 509 (A.F.C.M.R. 1986) (an unprepared counsel is tantamount to no counsel at all). A sample delay request is attached. (Encl)
7. GOVERNMENT REPRESENTATIVE. The government representative must be appointed by the convening authority. Generally, the government representative is the trial counsel. Defense counsel may want to object if the convening authority has not properly appointed the government representative.
8. WITNESS PRODUCTION: Defense counsel should request the personal appearance of all relevant witnesses including witnesses requested by the government. A sample witness request accompanies this information paper (Encl). Any witness whose testimony would be relevant and not cumulative shall be produced if the witness is reasonably available. R.C.M. 405(g). The rules for determining reasonable availability are set out in R.C.M. 405(g)(1)(A). Rules vary depending on the status of witness as military, DOD employee or civilian. If the IO determines that a witness is unavailable, defense counsel must ensure that the IO states the basis for this determination on the record. To preserve the issue, defense counsel should object to the IO considering any alternates to testimony and defense counsel should consider requesting an oral deposition under R.C.M. 702. Also, defense counsel should consider the use of telephone or video teleconference testimony.
9. EVIDENCE PRODUCTION: Defense counsel should request production of all relevant physical evidence. A sample request accompanies this information paper. It is also advisable to provide the investigating officer with a copy of the discovery request served on the government. A sample discovery request accompanies this information paper (Encl). Defense counsel can utilize the Article 32 Investigation to obtain discovery such as CID files, Medical Records, 201 files, etc. Defense counsel should object if the physical evidence is not produced for inspection at the Article 32 Investigation. Also, defense counsel should insist that the IO note the objection and state for the record why the evidence was not produced.
10. ALTERNATIVES TO TESTIMONY AND EVIDENCE: The IO may consider certain alternatives to testimony (such as previous statements) or evidence (photographs or drawings) but only in certain specific circumstances. The rules for making this determination are set out in R.C.M. 405(g) 4-5. Defense counsel must know these rules and plan in advance a strategy for preventing the IO from considering alternatives to testimony or evidence. However, defense counsel should carefully consider alternatives to live testimony in case the IO refuses to produce the witness. Defense counsel should always ask for a verbatim record of the hearing. As an alternative, the testimony of complaining witnesses and other key government witnesses should be recorded verbatim.
11. KEY RIGHTS OF THE ACCUSED: Aside from the rights discussed above, the accused also has the right to cross examine witnesses, to present evidence in defense mitigation and extenuation and to make a statement in any form including an unsworn statement. Generally, the defense is given broad latitude to cross-examine witnesses. R.C.M. 405(h)(1)(A).
12. REPORT OF INVESTIGATION: The IO will submit a report of the investigation to the Convening Authority. Usually the report consists of DD Form 457 and attached summarized testimony of witnesses and evidence considered. At a minimum, defense counsel should insist that before the report is submitted that the IO show the summarized transcript to the witnesses and ask the witnesses to sign and swear that the testimony is accurate. DA Pam 27-17 para 4-1. Defense counsel should also review the investigation report to ensure that all objections were properly noted and that the IO considered only that evidence which was properly admitted. Objections to the Article 32 Investigation must be made to the convening authority within 5 days of receipt of the report by the accused. R.C.M. 405(k). Motions for appropriate relief must be made at trial. R.C.M. 905(b)(1). Failure to substantially comply with the requirements of Article 32 may result in delay of the disposition of the case or disapproval of the proceedings. R.C.M. 405(a) discussion.
13. WAIVER: The Article 32 Investigation may be waived as a condition of a pre-trial agreement or for other reasons R.C.M. 702(c)(2)(e). The Article 32 Investigation should not be waived casually. The Investigation should never be waived without obtaining a benefit, such as a pretrial agreement, dismissal of charges, referral to an inferior court, or an alternative disposition. The client must be fully informed of the meaning and effect of a waiver. A sample Article 32 Waiver Form accompanies this information paper (Encl).