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Facing serious charges? You must understand Article 32

After an evening out, a sergeant and his wife return home where their young daughter is being looked after by the 15-year old female babysitter they usually hire. As usual, the sergeant drives her home. The next morning, his commander notifies the sergeant that the babysitter is claiming he raped her. Later that week, his commander formally charges him with rape.

While the sergeant knows he is not guilty, he is told the evidence against him is serious and he is likely to be convicted of the rape. The prosecution offers him a plea bargain on the condition that he waives his Article 32 hearing. The sergeant — who is not well-versed in military law and is afraid of the conviction — accepts the offer. He is discharged from the Army, leaving him with no way of supporting his family.

Waiver of the Article 32 hearing is something that I see happen all too frequently. Most believe this type of military hearing is identical to a civilian preliminary hearing or grand jury. This is a misconception. The two have key differences that could have a major effect on case proceedings.

In a civilian grand jury, the jurors decide to indict based upon evidence that is frequently provided solely by the prosecutor. The prosecution is the only side represented, and the defendant is barred from the opportunity to confront and cross-examine witnesses, present evidence, call witnesses in his favor, or even speak for himself.

An Article 32 investigation, however, is broader in scope and more protective of the accused. It is critical that service members facing a serious military charge — such as the one described above — understand the process.

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. Ultimately, an appointed investigating officer, who usually is not legally trained, will make the final recommendation for whether the case should proceed.

The accused has more rights than he would in a grand jury proceeding, which work to his benefit in an Article 32 hearing. Crucial differences include the right to call witnesses, present evidence and 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 tells the defense just how strong the government’s case is 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. Further, if the evidence is lacking, it presents an opportunity for the charges to be dropped completely.

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 was recommended that the charges be dropped.

If the sergeant described above had not waived his right to an Article 32 hearing, his defense could have broken down the prosecution’s case through the lack of evidence, which would have inevitably been presented. He simply assumed that the hearing would mirror the civilian process, which is often not the case. His lack of understanding about his rights caused him to make the wrong choice in his case.

While going forward with an Article 32 hearing may not be advisable in all cases, it is a decision that you should discuss fully with your criminal attorney. The best option is always to have a complete understanding of your legal rights.

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Mathew B. Tully, Esq. is a field artillery officer in the New York National Guard currently deployed to the Middle East in support of Operation Bright Star. He is also the founding partner of Tully, Rinckey and Associates (www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytiumes.com.

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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.

DISCUSS: Article 32