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
(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.