Facing serious charges? You must understand Article 32

[CommunityEditor]

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.


Article: http://www.militarytimes.com/communi...awyer_071217w/

Originally Posted by CommunityEditor

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.


Article: http://www.militarytimes.com/communi...awyer_071217w/

Sir
At the end fo this article you state quote "The best option is always to have a complete understanding of your legal rights". What if you try to understand and ask for help and do not receice that help!
My husband aske for help and was told by a Navy Jag that she had permission from her boss to represent my husband at a Summary Court Martial. Only when my husband told her that he refused to plead guilty ( because he said he was not guilty) This navy jag told him then that she could not represent him and that he was on his own.
How can the military force someone to plead quilty when they know they are not. What ever happen to Navy Jags doing there jobs to defend thier clients. Is it true that what we were told by a Top Navy Jag that there is not any defense attorneys in the Navy . That all jags in the Navy work for the government and are here to convict for the government. If that is the case then every sailor accused of something will diffently be convicted. That mus be why the conviction rate of NJP and court martials are at 95%.
Anyone who defends this country should have the right to full military counsel when accused of anything.
We fight for our freedom, yet we as the fighters get no rights to that freedom in the Military.
Kellie

You are not entitled to legal representation at a Summary Court Martial. A SCM is the lowest level of court martial (as opposed to a Special Court Martial or a General Court Martial). A SCM is not presided over by a judge, and there is no "prosecution" either. Most say that it is one small step above a Captain's Mast.

Also, they are only available to enlisted personnel. Furthermore, one cannot be punitively discharged at at SCM, and depending on your rank, there is not a huge exposure to punishment.

And, there are uniformed defense attorneys scattered throughout the Navy, in every single base and corner of the world. And, if there is not one close by, the Navy will bring you to the attorney, or the attorney to you.

Not for nothing, but military court martials conviction rate is better than 95%. Its closer to 98% or 99%.

Thats only 1 or 2% away from a totalitarian state!!!!

Yipee.

Originally Posted by Unregistered

Not for nothing, but military court martials conviction rate is better than 95%. Its closer to 98% or 99%.

Thats only 1 or 2% away from a totalitarian state!!!!

Yipee.

post proof...

This is how it works in practical terms:

You are forced to go to Iraq to take the place of another soldier because they are a serial sexual harasser and can't be in the company of the opposite sex...when you get to Iraq you end up working for a officer pilot who admits to being afraid to fly in a combat zone (still collects flight pay), and meanwhile sexually harrasses you. You make several complaints and then are charged with bogus UCMJ violations...because you know that you are not guilty and think that you will get a fair hearing, you decide to accept a court-martial instead of an article 15 and that's where the fun really starts! The military won't make your witnesses accessible, the court room procedures are manipulated against you and most of all; your own defense counsel sells you out...

The kicker is after all this, you appeal the judgment and your path is blocked at every turn with disclaimers, lost paperwork, impossible requirements to meet, on and on and on...

The system wins everytime - no wonder anyone with half a brain decides against military service...

The military won't make your witnesses accessible, the court room procedures are manipulated against you and most of all; your own defense counsel sells you out...

Reality bites!! Guess what? defense counsels like prosocutors are looking for one thing.....Can you guess what that is?




THE TRUTH

If your defense counsel sells you out then its because he doesnt beleive your story.

[Lefty]

Originally Posted by Unregistered

Reality bites!! Guess what? defense counsels like prosocutors are looking for one thing.....Can you guess what that is?




THE TRUTH

If your defense counsel sells you out then its because he doesnt beleive your story.

This is one of the most ridiculous statements I have read on these pages. No wonder you are not a registered user giving advice like this. The job of the prosecution is to find the truth, and the job of the defense is to defend their clients no matter what they think. I know this is idealistic, but it never happens where I'm at. Recently, a fellow servicemember and great friend of mine had an inappropriate relationship with someone else's wife. I confronted both parties, and after no change, reported the incident to my commanding officer. I was congratulated by them for standing up for what is "right", but two days later I was told to back off. This is because of favoritism for this individual, and because he comes in to work all the time. While he is there, he kisses butt and loses his peers respect all day long. I defended him at first, but now do nothing of the sort. Moral of the story, if you see anything going on wrong, just let it go. The Air Force says that their first core value is "Integrity First", but I never see it in action.

I agree, Don't say anything. It will come back to haunt you! It is called revenge.

[SSgtB1990]

The fact is, both prosecutors and defense, have a boss and the same boss at that. I've spent most of my military career in the courtroom and I can tell you that the system is set up against the accused. It's just that simple. Even if the evidence points against the accused, the convening authority will allow it to go to trial with the mindset that "if he's innocent, he'll be proven not guilty" knowing that that's not the case. CA's are so afraid of having to defend their positions on not enough evidence that they sacrifice Marines' careers. Oh, BTW, that's only junior Marines. Officers take care of their own in the courtroom. I've seen officer child molesters walk out of a courtroom with absolutely no brig time. It's insane.