Article 32 is broader than grand jury proceeding - Military Law, Military Law Advice, Ask a Lawyer - Military Times

Article 32 is broader than grand jury proceeding

One of the best parts of my job is communicating with readers, who are always welcome to e-mail me with legal issues and questions. One frequent reader of this column is retired Brig. Gen. Walter Donovan, a former top legal officer to the commandant of the Marine Corps.

He pointed out that one of my recent columns said the Article 32 process is similar to a civilian grand jury and that I did not do justice to the significant differences between an Article 32 proceeding and a grand jury proceeding. Since I get a lot of questions about Article 32 hearings and whether they should be waived, I figured it would be wise to discuss them in greater detail.

A grand jury is a type of jury that determines whether there is enough evidence for a trial. It is used in many, but not all, states. In civilian criminal matters, it generally is used when somebody is accused of a felony. While a grand jury’s composition varies by state, it is generally made up of 12 to 23 randomly selected citizens. A majority of the citizens who make up the grand jury must vote in favor of an indictment based upon evidence provided solely by the prosecutor in order for the case to proceed to trial.

During a grand jury, the prosecution is the only side represented and generally all of the proceedings are done in secret. As my good family friend, Sol Wachtler, the former chief judge of New York state, jokingly observed, prosecutors could persuade a grand jury to “indict a ham sandwich” because the process is so lopsided in favor of the prosecution. The defendant is barred from the opportunity to confront and cross-examine witnesses, present evidence or call witnesses in his favor.

On the military side, under Article 32 of the Uniform Code of Military Justice, a thorough and impartial investigation of charges and specifications must be completed before the accused may be referred to a court-martial. An Article 32 investigation is broader in scope and more protective of the accused.

The purpose of an Article 32 hearing is to inquire into the truth of the matter set forth in the charges, to consider the form of the charges, and to secure information to determine what disposition should be made of the case in the interest of justice and discipline. An investigating officer, usually not legally trained, is appointed to conduct the investigation. He will make the final recommendation for whether the case should proceed.

More rights for the accused

An Article 32 hearing allows the accused more rights than a grand jury proceeding. Crucial differences include the right to call witnesses, the right to present evidence and the right to cross-examine witnesses called by the prosecution during the investigation.

The right to cross-examine witnesses is an excellent opportunity for the defense and can frequently lead to favorable resolution of the case. The testimony and credibility of a key prosecution witness can often be undermined. It also gives the defense a chance to get a better idea of what a witness might say at trial.

The hearing also forces the prosecution to show their evidence in the case. Once this is out, it indicates to the defense just how strong a case the government has against the accused. The entire hearing can serve as a mechanism for discovery by the defense, which is essential in evaluating how the case should proceed. If the evidence is lacking, it presents an opportunity for the charges to be dropped.

After the hearing is complete, the investigating officer must file a written report, which addresses the legal issues raised in the case and makes recommendations for the nature of the charges. The recommendation can range from dismissal of the charges to a general court-martial. However, the recommendation is just that. The appointing authority may still decide that a case needs to proceed even if it is recommended for the charges to be dropped.

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The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is the founding partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington, D.C. E-mail questions to askthelawyer@militarytimes.com.

Read more of his “Ask the Lawyer” columns at www.militarytimes.com/community/ask_lawyer.