Written by attorney Michael James Perillo Jr.

Military Law: The UCMJ Article 32 Hearing

The Article 32 Hearing

There are three types of Court-Martial proceedings. A General Court-Martial is typically the venue for adjudication of the most serious criminal offenses. A Special Court-Martial is generally a venue for less serious criminal offenses which are often charged as misdemeanors in civilian practice. There is no distinction between felonies and misdemeanors in the military justice system. An offense which would be considered a felony in a civilian jurisdiction would likely be tried before a General Court-Martial whereas a misdemeanor would probably be referred to a Special Court-Martial or Summary Court-Martial. A Summary Court-Martial is a one officer court utilized for disposition of less serious offenses (See Article 17, Uniform Code of Military Justice and Rule for Court Martial 1301, et. seq.).

There is no equivalent to the Grand Jury in military practice. Before a serious offense can be referred to trial at General Court-Martial the accused (the defendant) will appear at an Article 32 hearing (See Article 23, UCMJ and RCM 405). At this hearing, the government will offer evidence to show probable cause that the accused committed the offenses charged. One of the distinctions between military and civilian practice is that, much like a preliminary hearing in civilian criminal practice, the accused is present with his or her counsel at the Article 32 hearing. Defense counsel is given the opportunity to cross-examine witnesses at the Article 32 hearing. The defense may also call witnesses and offer evidence.

The Article 32 hearing provides the defense with a unique opportunity to learn what witnesses in the case will testify to at trial. Since defense counsel is permitted to examine and cross examine witnesses, the hearing provides the defense with the opportunity to develop prior inconsistent statements to be used in cross-examination at a subsequent Court-Martial. Examination of witnesses at the Article 32 hearing is, in my personal experience, the functional equivalent of deposition practice in civil litigation.

Most cases in my civilian jurisdiction are taken before the Grand Jury by the state for indictment. With respect to those few cases that do proceed to preliminary hearing, the judge typically keeps a tight rein on defense cross examination of witnesses. Generally speaking, in a civilian court the judge at preliminary hearing simply wants to hear testimony as to probable cause. Conversely, an Article 32 hearing can proceed over an extended period of time, often days, depending upon the number of witnesses called by either side.

The Article 32 hearing is presided over by a hearing officer who is typically a JAG officer or Military Judge. At the end of the proceedings the hearing officer writes a report with recommendations for the accused's Commanding Officer (the Convening Authority) who will ultimately decide whether to dismiss the charges or refer the matter to General, Special or Summary Court-Martial. The hearing officer's report of investigation will include "the recommendations of the investigating officer, including disposition (of the charges)" (See RCM 405(j)).

The hearing officer can make a recommendation that charges be dismissed. Unlike Grand Jury practice, the Commanding Officer is not bound by that recommendation. In civilian practice, if the Grand Jury were not to return a "true bill" the case could not go forward as a matter of law. In military practice, even if evidence is lacking in the opinion of the hearing officer the case could still be referred to trial by Court-Martial at the discretion of the "Convening Authority."

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