An Article 32 hearing is a military version of a grand jury hearing, but not only that. It serves the purpose of investigating the charges where an Investigating Officer determines whether there is sufficient evidence to refer the charges to a General Court Martial. In a sense, it is a mini-trial. The Investigating Officer hears opening statements, direct and cross examination, and closing arguments. Rules of evidence are relaxed except for several rules, ie relevancy (MRE 401), or victim's past sexual history (MRE 412). In the end, the Investigating Officer only makes a recommendation. But, a favorable recommendation for the accused can have a great impact in the long term. The General Court Martial Convening Authority may determine that it should be followed, and the charges may go away. After all, the Investigating Officer looked at the entire evidence, and recommended against going to a trial.
ArmyTimes reports that the Article 32 hearing for Staff Sergeant Bales is set on 17 September. Most likely the Article 32 hearing for Staff Sergeant Bales will last several days and there will be dozens of witnesses. The amount of documents and witnesses has probably already reached a level greater than any normal trial. Considering the number of charges Staff Sergeant Bales is charged with, most likely the Investigating Officer will find sufficient evidence and recommend to proceed with a court-martial. It should be interesting to see if he will recommend to proceed on all charges.
Rule for Court Martial 405 discusses the Article 32 hearing. It states, in part, that the accused has the following rights:
Rights of the accused. At any pretrial investigation under this rule the accused shall have the right to:
(1) Be informed of the charges under investigation;
(2) Be informed of the identity of the accuser;
(3) Except in circumstances described in R.C.M. 804(c)(2) , be present throughout the taking of evidence;
(4) Be represented by counsel;
(5) Be informed of the witnesses and other evidence then known to the investigating officer;
(6 ) Be informed o f the purpose of t h e investigation;
(7) Be informed of the right against self-incrimination under Article 31;
(8 ) Cross-examine witnesses who are produced under subsection (g) of this rule;
(9) Have witnesses produced as provided for in subsection (g) of this rule;
(1 0 ) Have evidence , including documents or physical evidence, within the control of military authorities produced as provided under subsection (g) of this rule;
(11) Present anything in defense, extenuation, or mitigation for consideration by the investigating officer; and
(12) Make a statement in any form.
This is a lot of rights, and a lot of opportunities to utilize the Article 32 process to obtain the right results for one's client. The best result is to have the Investigating Officer recommend not to proceed with the court-martial. The second best is to obtain impeachment evidence against key government witnesses for the actual trial.
If you are facing an Article 32 hearing, contact former judge advocates who now practice military law as civilian defense counsel at The Federal Practice Group. They know the Article 32 process and they know how to make it work for you. This information above is not legal advice. It is intended for general public only. If you have a legal question, contact an attorney.
