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At Bilecki Law Group, We believe every service member has earned their right to an aggressive defense on their day in court. We specialize in taking the fight to the prosecution and winning cases that others said were unwinnable.

We’re talking about the Article 32 hearing next on “Off The Record.” The Article 32 hearing is the first true hearing after you’ve had charges preferred against you. There is usually not a judge involved. It’s oftentimes a preliminary hearing officer called a PHO.

Topics discussed:

  • What An Article 32 Is and Isn’t
  • You Have A Right To Have An Attorney Present
  • Probable Cause
  • What The Government Will Do
  • The Defense’s Options
  • Strategies
  • The Report
  • A One Step Process
  • The Next Step

What An Article 32 Is and Isn’t

It is incredibly important to understand what an Article 32 is and what it isn’t.

Let’s first start with what it isn’t. The Article 32 hearing is not the trial. There’s a standard is not beyond a reasonable doubt. There is no jury. There’s oftentimes no judge. It is not the trial. Oftentimes, clients want to go all in or they think that their case is going to be resolved at an Article 32, and typically it’s not going to be.

The key is how to use an Article 32 hearing strategically. And to do it strategically, you have to understand what it is. Article 32 hearing stems from the rule of court-martial 405. It’s a probable cause hearing. It’s not all that different than a grand jury hearing or a probable cause hearing in the civilian side.

You Have A Right To Have An Attorney Present

Although you have a right to be present at the hearing, you have a right to have counsel at the hearing, and you have a right to even call witnesses at the hearing, the standard is probable cause, not beyond a reasonable doubt. So if you’re just thinking about it, beyond a reasonable doubt is a very, very high standard. Probable cause is an incredibly low standard.

Probable Cause

Probable cause essentially means that there is some evidence that a crime might have been committed. It’s really not much more than that. It’s the same standard that police officers use to pull you over. It’s the same standard that police officers can use to stop and frisk you. It’s just probable cause to determine if a crime was committed and if you actually committed it. So it’s incredibly important to understand that’s the standard.

What The Government Will Do

Now, at this hearing, the government may or may not call witnesses. Oftentimes, the government doesn’t want to give up too much of their case. They don’t want the defense to see what they have or how witnesses are going to testify, so they’ll do what’s called a paper Article 32 hearing, where they’ll come into court to just present the NCIS, or the OSI, or the CID file, present some witness statements, make an argument to the preliminary hearing officer, who’s typically another JAG, and stop. That’s it. Oftentimes, that’s enough to show probable cause.

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The Defense’s Options

On the defense side, we’ve got a couple different options here. One option, this is all based on strategy for an individual case.

One option is we don’t want to show all of our cards. You may waive the Article 32 hearing. You might not want to show the government what you have. Probable cause has clearly been met by the documentary evidence in the case.

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You might not want to show your hand. You might not want to give them a sneak peek at your playbook. So there may be a strategic reason to waive an Article 32 because you don’t want to give up too much of your hand. On the other end, you have the right to call witnesses. Now, the witnesses need to be able to go directly to whether probable cause exists or not, and they need not be cumulative with other witnesses or statements.

But one strategy that we’re implementing a lot is to call witnesses at the Article 32 to show that there is no probable cause, to maybe put your story of innocence out early and see if we can beat the charges at the Article 32 hearing. It’s an aggressive strategy, but in the right cases it can work, in particular sex assault charges where there’s a he said, she said, or maybe an issue of substantial incapacitation, or we might want to lock certain witnesses in under oath.

It’s a complex strategy decision that’s unique to each case. So you’ll go through the Article 32 hearing. At the Article 32 hearing, you have a right to testify or not, almost always an accused does not testify at the Article 32. You’d be subject to cross-examination, or you don’t want to put your statement out there that can be used later on down the road.

But your attorney will be there and any witnesses the government call we get to cross-examine, and we can call witnesses to put on testimony as well. You typically don’t have a speaking role there. That Article 32 preliminary hearing officer then makes a report or a recommendation. And it’s critical to remember that this is a recommendation only up to what’s called the convening authority, which is the general officer or the admiral who’s charged you.

It is a written recommendation where they’re gonna make a couple different findings. Number one, was their probable cause or not? And it’s important to understand that they need to do this for each and every charge that you’re accused of that’s on your charge sheet to make a probable cause determination.

And then based on that, they make a recommendation as to the disposition of the charges. Now, what does that mean? That means they can recommend the charges go to a general court-martial. They can recommend the charges go to a special court-martial. They can recommend the charges not even go forward. I just had a case where they recommended the charges were disposed of at an Article 15 or non-judicial punishment. Okay.

The Report

This report is then sent up to the convening authority, or the general, or the admiral that’s convening the case. He will review it along with your commander’s recommendation, along with the staff judge advocate’s recommendation. And it is his determination, his authority, not the preliminary hearing officer’s authority as to whether the case continues or not.

A One Step Process

So if you have a case where you have a very strong recommendation to not go forward or where probable cause is not met, it doesn’t mean that the case will stop there, but it can mean that the case might not go forward. That’s what an Article 32 is. It is one step in the process, and it is a requirement for any general court-martial to go forward.

The Next Step

Now, if the Article 32 happens, there’s a recommendation for it to go forward, or even if there’s a recommendation to stop it, and the general court-martial convening authority refers the case, that’s a term of art. They refer the case to trial. The next step is you’re going to go through your arraignment and the case is going to continue. Now, we’re gonna talk about what the referral is, what an arraignment is in another episode of “Off The Record.”

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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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