Understanding the Article 32 Hearing: Its Purpose and Its Use by the Defense

In the military justice system, the most serious tribunal an accused can face is the general court-martial (GCM). Because of the seriousness of the GCM, there is a process required by the Uniform Code of Military Justice (UCMJ) that must be followed before the case can be “referred” to the GCM by the Officer Exercising General Court-Martial Jurisdiction (OEGCMJ). In most cases,[1] after charges have been preferred, they will be referred by a subordinate commander for an Article 32 Preliminary Investigation. The order establishing the Article 32 investigation will appoint an investigating officer to review evidence and hear witnesses.

[1] In August 2023, President Biden signed an Executive Order modifying the authority for certain serious cases, including murder, manslaughter and sexual assault cases. The Executive Order created an “Office of Special Trial Counsel” within each service to administer these cases. These cases are now removed from the traditional chain of command. However, the accused continues to have the right to a preliminary hearing under Art. 32 of the UCMJ.

After the hearing is held, the investigating officer will make recommendations concerning the charges to be pursued and the appropriate forum for disposition of the charges. This investigation must then be sent, together with the charge sheet and other documents to the OEGCMJ. The OEGCMJ will then review the records, including the Article 32 Investigation as well as the Article 34 advice of its Staff Judge Advocate, before deciding to refer the case to a GCM.

The Article 32 Investigation is therefore an important part of the military justice system. Unlike a civilian preliminary hearing, which only looks for a prima facia case or probable cause, the Article 32 Investigating Officer must take a deeper look at the case to determine whether charges should be brought and, if so, in what forum they should be brought. Rather than recommend referral to a GCM, the Investigating Officer could recommend non-judicial punishment under Article 15 of the UCMJ or trial before the more limited Special Court-Martial. While these recommendations can be ignored, they are often followed, and what once appeared to be a serious matter may be resolved with a much lower sentence.

What, then, is the correct approach for defense counsel to take at the Article 32 Investigation? Unfortunately, the defense of any criminal case is more an art than a science, and there is usually not one correct approach. Here are some guidelines to consider, however.

Think Strategically.

Defense counsel, working with the accused, should put some thought into the defense goal of the case. If the accused is guilty, and the goal is to obtain the lowest sentence possible, early plea negotiations may be the best way to proceed. This might involve offering to waive the investigation as part of a quick guilty plea which could result in a lower sentence.

Another strategy might be to concede the government’s evidence but then put mitigating evidence before the investigating officer in the hope of obtaining a recommendation of a referral to a Special Court-Martial or Non-judicial punishment.

It is also often desirable for an accused to avail himself or herself of all rights available, particularly if the case is going to be a contested trial before a GCM. This would involve questioning government witnesses and perhaps even calling defense witnesses, particularly uncooperative witnesses, to see what they would say at trial. A skillful cross examination can pin a witness to certain factual assertion that can then be used at trial on an accused’s behalf.

However, before deciding on how to conduct an Article 32 Investigation, it is important to understand what the accused’s goals are in the case.

What Rights Are Available at an Article 32 Investigation?

Although the rights available to an accused at an Article 32 Investigation are more limited than they used to be, they still exceed the rights of a criminal defendant in many state criminal justice systems. In the federal system, if there is an indictment, there is no preliminary hearing when a defendant has been indicted. One of the most important rights is the right to counsel—including detailed defense counsel and civilian counsel at no cost to the government.

Importantly, an accused does not lose the right to detailed defense counsel if a civilian counsel is hired—the two can and often do work together as a defense team.

Rule for Courts-Martial 405 provides several other rights for an accused, including:

• The right to be advised of the charges;
• The right to be informed of the purposes of the preliminary hearing;
• The right against self-incrimination under Article 31 of the UCMJ;
• The right to be present when evidence is taken;
• The right to cross examine witnesses; and,
• The right to present evidence in defense and mitigation.

There may be other rights that an accused can take advantage of in some circumstances. The accused also has the right to waive a preliminary hearing and give up all of these rights, but why would an accused give up these valuable rights.

In most cases, the Article 32 will be waived as part of a plea agreement. If there is no question about guilt, it may be possible to have the convening authority agree to a lower sentence in exchange for waiving the Article 32 and pleading guilty. It may also be that if the evidence is overwhelming, the accused may want to waive the Article 32 to show contrition in the hopes of obtaining a lower sentence at the end of the case.

There may be other times when it is appropriate to waive an Article 32. In one case, I represented a sailor accused of murder. As I began investigating the case, I discovered several witnesses who told me that another individual had bragged about killing the victim. The witnesses had provided statements to NCIS, they said, but no statements from any of these witnesses were provided to me during discovery. As I began investigating further, I developed what I believed to be a formidable defense. After consulting with the accused, we decided to waive the preliminary hearing because I did not want the government to know they had arrested the wrong individual. Just before the GCM, I disclosed this defense in a motion to dismiss for withholding exculpatory evidence. The motion was denied, but the accused was acquitted of the murder charge at the GCM.

Understanding these rights and knowing when to waive them is a key component of a defense.

The Article 32 Preliminary Hearing Itself.

An Article 32 investigation is similar to many other military “hearings”. There is no requirement that it take place in a courtroom—it can be held anywhere where there are sufficient facilities for the hearing. It is presided over by the “investigating officer” (IO), usually a Judge Advocate, but there is no requirement that the presiding officer be a Judge Advocate. The government’s case will normally be presented by a trial counsel (prosecutor) who will present documentary evidence and call witnesses. The defense counsel will then cross examine those witnesses and may call witnesses and present documents on behalf of the accused.

Military Rules of Evidence do not apply at Article 32 Investigations, except for MRE 301 (self-incrimination), MRE 302 (statements from mental examinations), MRE 303 (degrading statements), MRE 305 (rights warnings), MRE 412 (rape shield) and privileges under section V of the Military Rules of Evidence. Witnesses may be called if they are “reasonably available”, something that can become an issue in an Article 32 Investigation. The Rules for Courts-Martial provide some explanation as to when a witness should be considered “reasonably available”, but issues concerning availability should be brought to the attention of the IO who will make an initial decision as to whether the witness is available or not.

Article 32 Investigations are supposed to be fair proceedings—sometimes, however, the IO will show a bias toward the government or be more concerned about the timing of the proceeding (forcing an unprepared accused to proceed even though the accused has requested a continuance) or the cost of something than with the fairness of the proceeding. If there is an issue with the IO, it is best to bring the issue up with the IO himself or herself. If that is unsuccessful, then the issue should be brought to the attention of the Convening Authority, and, if there is not a successful resolution of the issue, with the military judge assigned to the case.

In terms of the proceedings themselves, sometimes the formality of the hearing and the fact that testimony is provided under oath can cause a witness to say something they would not otherwise have said. In one Article 32 Investigation, my client was charged with Statutory Rape under Article 120 of the UCMJ. The victim, who by the time of the hearing was over the age of 16, testified that the accused had sexual intercourse with her when she was under the age of sixteen. But her testimony was difficult for the trial counsel, and she appeared to be a reluctant witness. One of the items of importance was a written statement, prepared by an NCIS agent, that she had signed. She admitted that the signature was hers.

On cross examination, I asked her if everything in the statement was true. She paused for a minute, and then she said it was not. When I asked her to explain, she said, much to everyone’s surprise, that nothing in the statement was true. She then went on to explain that although the accused had dated her, he had always been a “perfect gentleman” and had never touched her sexually. After the hearing, the IO disregarded her prior statement and concluded there was no probable cause to believe the accused had committed a crime. The charges were subsequently dismissed, and he was returned to duty.

Call Us if You Have Any Questions.

We represent service members before special courts-martial, general courts-martial and Article 32 Investigations. An Article 32 Investigation can be an important element in the defense of a service member—it can lead to lower charges, trial before a lower forum (such as a special court-martial or NJP), or a dismissal of charges. It can also give defense counsel an opportunity to obtain evidence for use at trial. If you have any questions about an Article 32, contact us. We may be able to help. We look forward to hearing from you.