Unlike the civilian legal system, the military has no grand juries. The grand jury in the civilian courts checks the prosecution’s power and reviews a case before trial. In the military, what acts as a grand jury is the Article 32 investigation. This investigation is one of the most crucial procedures in maximizing your chances of effectively defending your case. Before hiring a military criminal defense attorney, ensure that you are knowledgeable about the steps and processes. Below is a deeper explanation of Article 32 UCMJ Preliminary Hearing.
What is the Article 32 Preliminary Court Hearing?
In an Article 32 Preliminary Court hearing, the appointed Preliminary Hearing Officer (PHO) evaluates the case and offers non-binding suggestions about whether probable cause exists and how to charge and resolve the case in the interest of both discipline and justice. This process is performed before the case is taken into the General Court-Martial. On the other hand, the Article 32 Hearing can dispose of the case, especially when the PHO finds insufficient evidence to support the charge.
What are the rights of the accused in the Article 32 Hearing?
At the hearing, the accused has the right to be notified of their rights. The accused have the right to:
- Be represented by counsel
- Be informed of the objective of the hearing
- Be informed of their right to remain silent under Article 31 except in the Rules for Court-Martial (RCM) 804(c) conditions
- Be present at all times while evidence is being taken
- Cross-examine witnesses on subjects pertinent to the issues to be decided under RCM 405(a)
- Present matters relevant to the issues to be decided under RCM 405(a)
- Make a sworn or unsworn declaration relevant to the issues for determination under RCM 405(a)
On the other hand, the accused must be in the right state of mind during the hearing to understand the proceedings and assist their defense. The accused also have the right to have a civilian lawyer but at their own expense.
What are the rights of the victims of alleged offenses in the Article 32 Hearing?
At the preliminary hearing, a victim is defined as someone who has suffered direct physical, emotional, or pecuniary damages resulting from an infraction under the UCMJ RCM 405(g)(1). The victim has the right to:
- Be represented by the victims’ legal counsel
- Be issued a reasonable, accurate, and timely notice of the preliminary hearing
- Not testify at the hearing if they experienced direct physical, emotional, or pecuniary harm due to the matters outlined in a charge or specification under consideration
- Not be excluded from any public proceeding of the preliminary hearing unless the PHO determines that hearing other testimony would change the victim’s testimony after receiving clear and compelling evidence
- Be heard fairly, through counsel if necessary, on all issues arising under Military Rules of Evidence 412, 513, and 514 that are directly related to that victim
How is the evidence presented in the Article 32 Hearing?
The government may present its case in whatever way it sees fit. They are also not compelled to summon witnesses or introduce particular evidence to establish the probable cause without such presentation. Additionally, any direct or cross-examination done by any party must be pertinent to the issues decided under RCM 405(a).
Who can become witnesses in the Article 32 Hearing?
On the government’s side, they may call witnesses pertinent to a determination under RCM 405(a) in person, by telephone, video teleconference, or other means that give a fair opportunity to interview the witness and the defense to cross-examine the witness. On the other hand, the accused also bears the same rights giving the witness a reasonable opportunity to testify and for the government counsel to cross-examine the witness. On another note, if the witness is a civilian, the government must request them to testify, and if they agree, the government shall make suitable arrangements.
During the Article 32 hearing, you will go through several processes, including preparing necessary documents and finding witnesses, if any. If you are the accused, you have to be ready for you might face serious criminal charges. That said, it is crucial to reach a military defense attorney to guide you with the investigation and represent you in defending and resolving your case.