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Tim Bilecki

Article 32 Hearing

United States v. Davis, 64 M.J. 445, 448-49 (C.A.A.F. 2007) provides that as a threshold matter, “When reviewing allegations of error in an Article 32, UCMJ, investigation, we will reverse only when there is a showing of prejudice to a substantial right of the accused.”

In United States v Stephens, 66 M.J. 520, 523 (A.F. Ct. Crim. App. 2008) the AFCCA notes it is “quite common in the Air Force for an IO to contact witnesses in order to finalize a written summary of their testimony” and does not amount to improper ex parte communication. The AFCCA held that Crawford does not apply during an Article 32 proceeding. At the hearing, defense counsel asked the alleged victim questions about a previous affair and she refused to answer.

On appeal, the defense argued the IO should have compelled her to answer or, alternatively, he should have declined to consider any of her testimony. The AFCCA noted the IO was correct that he could not compel a civilian witness to attend the Article 32 hearing or to answer specific questions. Regarding the novel argument that the IO should not have considered the rest of the victim’s testimony, the AFCCA noted the defense seemed to “analogize a witness’s refusal to testify at an Article 32, UCMJ, hearing to a witness’s refusal to testify at a trial based on a privilege, thereby raising the specter of Crawford v. Washington, 541 U.S. 36 (2004).

The defense argued the Article 32 hearing was incomplete because the victim did not answer the defense counsel’s questions. The court noted discovery is not a “prime object of the pretrial investigation” (quoting United States v. Arruza, 26 M.J. 234, 236 (C.M.A. 1988)). Rather, the primary purposes are to consider the “truth” of the allegations, to review the form of the charges, and to make a recommendation for disposition. Furthermore, in this case, the military judge properly found the defense questions were impermissible under M.R.E. 412, a rule that expressly applies at Article 32 proceedings.

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