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What is an Article 32 Hearing?

An Article 32 hearing follows a military investigation. Its equivalent in the civilian world is a grand jury. When a person in the military is charged with a crime, an Article 32 investigation must take place. This is done prior to a case being sent for a military trial. After the military investigation is complete, the government will present all of the evidence that is known to an impartial Investigating Officer (IO) who will determine if an Article 32 hearing is necessary.

Purpose

The reason for an Article 32 hearing is to have a pre Court-Martial hearing. During this hearing, all of the known facts will be examined. The substance of the accusations will be brought forth in the form of charges. The charges will be formalized and used to determine if the case proceeding to trial would serve the purposes of discipline and justice.

Uniform Code Of Military Justice (UCMJ)

The UCMJ identifies a number of infractions by members of the military that require punishment. A member of the US military who is accused of an infraction contained withing the UCMJ could face a number of non-judicial or administrative punishments. The most serious infractions will require a general court-martial to determine guilt or innocence. Prior to anyone being referred for a general court-martial, an article 32 hearing must take place. A service member’s commanding officer has court-martial convening authority. They will ask for advice from the command judge advocate concerning the strength or weakness of a case. They will also express their desire for the disposition of the case.

Rights Of The Accused

When a service member is accused of a violation of the UCMJ, they will be advised of the charges against them. The accused will be informed they have a right to be represented at the hearing by an attorney. The accused representative will have an opportunity to cross-examine any witnesses against them who are made available. The defense is also permitted to present anything they believe will help with their defense. The investigating officer will examine any and all witnesses requested by the accused to testify on their behalf. If charges are recommended after the investigation, a statement of the any testimony’s substance will be provided to the accuser and their representative.

Investigating Officer

The appointed Investigating Officer is responsible for reviewing all of the evidence and witnesses involved with a case. They will make recommendations that are non-binding. These recommendations will be based on the opinion of the investigating officer when it comes to determining what charges should be brought against the accused as well as how the case should be resolved. This will include proceeding to an Article 32 hearing for court-martial, dropping the case or another course of action and more. The recommendations are treated as only a set of referrals. When it comes to a Special Court-Martial, an Article 32 hearing is not necessary.

Scheduling Article 32 Hearing

Once an investigating officer has been appointed, an Article 32 hearing will be scheduled to occur as soon as possible. These hearings are designed to be attended by the accused, their defense counsel as well as the investigating counsel. The accused commander will determine who will be responsible for representing the government. They may also determine the interpreter for the case as well as the court reporter. These assignments are made as part of duty assignments. They are determined by the commander’s judge advocate’s office criminal law branch. In most cases, such investigative hearings will be open to the media and public.

Article 32 Hearing

This hearing is very important for the defense. It is is an opportunity for the defense to discover what evidence and witnesses the government is going to provide against the accused. A witness who is called to testify during an Article 32 hearing will be giving sworn testimony. They can be questioned by the defense as well as government attorneys. This could provide an advantage to the defense should the case go to trial. This is an opportunity for the defense attorney to detect any flaws in the government’s case against the accused. These flaws could show how difficult it will be for the government to get a conviction. In some cases, the flaws of a case identified during an Article 32 hearing have resulted in the court-martial case being dropped.

Trial Review

When a service member is convicted by a court-martial, they have the right to review their trial. This includes transcripts from the Article 32 hearing. Those with convening authority must be certain beyond a reasonable doubt that the evidence provided supports the outcome of the trial. The type of review will be determined by the level of the trial and type of sentence that was given. The results of the trial will be reviewed by the Court of Criminal Appeals. This is a court that consists of military judges. They will carefully examine the evidence presented during the trial. They will determine if the sentence that was given and the court’s findings are legally correct. The Court of Criminal Appeals can reduce a sentence as well as set aside the findings. They are not able to increase the severity of sentence given by the court.

Punishment

The findings of the Article 32 hearing will be taken into consideration when determining the punishment of a service member found guilty of charges brought against them. This could be a dishonorable discharge, bad-conduct discharge and more. A service member could also face confinement for more than 12 months.

Appeal Process

Once an Article 32 hearing is concluded, and a military court has rendered its ruling, then there is an appellate process. The Court of Appeals for the Armed Forces consists of five judges who are civilians. Each member of this court is appointed directly by the president. They are able to serve on this court for a total of fifteen years. The review process only covers questions of law. The government, as well as the accused service member, are able to petition the Supreme Court of the United States (SCUS) to review a case’s decision. This type of review by SCUS is done at their discretion.