Article 32 hearing
Encyclopedia
An Article 32 hearing is a proceeding under the United States
Uniform Code of Military Justice
, similar to that of a preliminary hearing
in civilian law. Its name is derived from UCMJ section VII ("Trial Procedure") Article 32 (10 U.S.C. § 832), which mandates the hearing.
While stating re the prosecution 'no charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made', Article 32 currently provides no upper time limit on consequent detention of the accused before trial.
The UCMJ specifies several different levels of formality with which infractions can be dealt. The most serious is a general court-martial
. An article 32 hearing is required before a defendant can be referred to a general court martial, in order to determine whether there is enough evidence to merit a general court martial. Offenders in the US military may face non-judicial punishment
, a summary court-martial, special court-martial, general court-martial, or administrative separation. A commanding officer, in the role as court-martial convening authority, will consult with the command judge advocate
for advice on case dispostition; factors to be considered include, inter alia, the relevant statutory and case law, the seriousness of the offenses, the strength or weakness of each element of the case, the promotion of good order and discipline, and the commander's desire for case disposition.
An investigation is normally directed when it appears the charges are of such a serious nature that trial by general court-martial may be warranted. The commander directing an investigation under Article 32 details a commissioned officer as investigating officer who will conduct the investigation and make a report of conclusions and recommendations. This officer is never the accuser, trial counsel (judge advocate prosecutor), nor in the accused's chain of command. This officer may or may not have any legal training, although the use of military attorneys (judge advocates) is recommended and common within service practice. If the investigating officer is not a lawyer, he or she may seek legal advice from an impartial source, but may not obtain such advice from counsel for any party.
An investigative hearing is scheduled as soon as reasonably possible after the investigating officer’s appointment. The hearing is normally attended by the investigating officer, the accused and the defense counsel. The commander will ordinarily detail counsel to represent the United States, and in some cases a court reporter and an interpreter; these appointments are, in practical reality, duty assignments made by the criminal law branch of the command judge advocate's office. Ordinarily, this investigative hearing is open to the public and the media.
The investigating officer will, generally, review all non-testimonial evidence and then proceed to examination of witnesses. Except for a limited set of rules on privileges, interrogation, and the rape-shield rule
, the military rules of evidence
(which are similar to the federal rules of evidence) do not apply at this investigative hearing. This does not mean, however, that the investigating officer ignores evidentiary issues. The investigating officer will comment on all evidentiary issues that are critical to a case’s disposition. All testimony is taken under oath or affirmation, except that an accused may make an unsworn statement.
The defense is given wide latitude in cross-examining witnesses. If the commander details an attorney to represent the United States, this government representative will normally conduct a direct examination of the government witnesses. This is followed by cross-examination by the defense and examination by the investigating officer upon completion of questioning by both counsel. Likewise, if a defense witness is called, the defense counsel will normally conduct a direct examination followed by a government cross-examination. After redirect examination by the defense counsel, or completion of questioning by both counsel, the investigating officer may conduct additional examination. The exact procedures to be followed in the hearing are not specified in either the Uniform Code of Military Justice or the Manual for Court-Martial.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
Uniform Code of Military Justice
Uniform Code of Military Justice
The Uniform Code of Military Justice , is the foundation of military law in the United States. It is was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . ....
, similar to that of a preliminary hearing
Preliminary hearing
Within some criminal justice systems, a preliminary hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial...
in civilian law. Its name is derived from UCMJ section VII ("Trial Procedure") Article 32 (10 U.S.C. § 832), which mandates the hearing.
While stating re the prosecution 'no charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made', Article 32 currently provides no upper time limit on consequent detention of the accused before trial.
The UCMJ specifies several different levels of formality with which infractions can be dealt. The most serious is a general court-martial
Court-martial
A court-martial is a military court. A court-martial is empowered to determine the guilt of members of the armed forces subject to military law, and, if the defendant is found guilty, to decide upon punishment.Most militaries maintain a court-martial system to try cases in which a breach of...
. An article 32 hearing is required before a defendant can be referred to a general court martial, in order to determine whether there is enough evidence to merit a general court martial. Offenders in the US military may face non-judicial punishment
Nonjudicial punishment
Non-judicial punishment in the United States military, is a form of military justice authorized by Article 15 of the Uniform Code of Military Justice. Non-judicial punishment or "NJP" permits commanders to administratively discipline troops without a court-martial...
, a summary court-martial, special court-martial, general court-martial, or administrative separation. A commanding officer, in the role as court-martial convening authority, will consult with the command judge advocate
Judge Advocate General's Corps
Judge Advocate General's Corps, also known as JAG or JAG Corps, refers to the legal branch or specialty of the U.S. Air Force, Army, Coast Guard, and Navy. Officers serving in the JAG Corps are typically called Judge Advocates. The Marine Corps and Coast Guard do not maintain separate JAG Corps...
for advice on case dispostition; factors to be considered include, inter alia, the relevant statutory and case law, the seriousness of the offenses, the strength or weakness of each element of the case, the promotion of good order and discipline, and the commander's desire for case disposition.
An investigation is normally directed when it appears the charges are of such a serious nature that trial by general court-martial may be warranted. The commander directing an investigation under Article 32 details a commissioned officer as investigating officer who will conduct the investigation and make a report of conclusions and recommendations. This officer is never the accuser, trial counsel (judge advocate prosecutor), nor in the accused's chain of command. This officer may or may not have any legal training, although the use of military attorneys (judge advocates) is recommended and common within service practice. If the investigating officer is not a lawyer, he or she may seek legal advice from an impartial source, but may not obtain such advice from counsel for any party.
An investigative hearing is scheduled as soon as reasonably possible after the investigating officer’s appointment. The hearing is normally attended by the investigating officer, the accused and the defense counsel. The commander will ordinarily detail counsel to represent the United States, and in some cases a court reporter and an interpreter; these appointments are, in practical reality, duty assignments made by the criminal law branch of the command judge advocate's office. Ordinarily, this investigative hearing is open to the public and the media.
The investigating officer will, generally, review all non-testimonial evidence and then proceed to examination of witnesses. Except for a limited set of rules on privileges, interrogation, and the rape-shield rule
Rape shield law
A rape shield law is a law that limits a defendant's ability to cross-examine rape complainants about their past sexual behaviour. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim.-In Canada:...
, the military rules of evidence
Rules of evidence
Rules of evidence govern whether, when, how, and for what purpose, proof of a legal case may be placed before a trier of fact for consideration....
(which are similar to the federal rules of evidence) do not apply at this investigative hearing. This does not mean, however, that the investigating officer ignores evidentiary issues. The investigating officer will comment on all evidentiary issues that are critical to a case’s disposition. All testimony is taken under oath or affirmation, except that an accused may make an unsworn statement.
The defense is given wide latitude in cross-examining witnesses. If the commander details an attorney to represent the United States, this government representative will normally conduct a direct examination of the government witnesses. This is followed by cross-examination by the defense and examination by the investigating officer upon completion of questioning by both counsel. Likewise, if a defense witness is called, the defense counsel will normally conduct a direct examination followed by a government cross-examination. After redirect examination by the defense counsel, or completion of questioning by both counsel, the investigating officer may conduct additional examination. The exact procedures to be followed in the hearing are not specified in either the Uniform Code of Military Justice or the Manual for Court-Martial.
See also
- Uniform Code of Military JusticeUniform Code of Military JusticeThe Uniform Code of Military Justice , is the foundation of military law in the United States. It is was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . ....
- United States courts martial
- Army Court of Criminal AppealsArmy Court of Criminal AppealsIn the United States military, the Army Court of Criminal Appeals is an appellate court that reviews certain court martial convictions of Army personnel.-Jurisdiction:...
- Navy-Marine Corps Court of Criminal AppealNavy-Marine Corps Court of Criminal AppealThe Navy-Marine Corps Court of Criminal Appeals is the intermediate appellate court for criminal convictions in the United States Navy and the Marine Corps....
s - Air Force Court of Criminal AppealsAir Force Court of Criminal AppealsThe Air Force Court of Criminal Appeals is an independent appellate judicial body authorized by Congress and established by the Judge Advocate General of the Air Force pursuant to the exclusive authority under . The Court hears and decides appeals of United States Air Force court-martial...
- Coast Guard Court of Criminal AppealsCoast Guard Court of Criminal AppealsThe Coast Guard Court of Criminal Appeals is the intermediate appellate court for criminal convictions in the U.S. Coast Guard. It is located in Arlington, Virginia....
- United States Court of Appeals for the Armed ForcesUnited States Court of Appeals for the Armed ForcesThe United States Court of Appeals for the Armed Forces or CAAF is an Article I court that exercises worldwide appellate jurisdiction over members of the United States armed forces on active duty and other persons subject to the Uniform Code of Military Justice...
External links
- England Waives Right to Challenge Charges
- Article 32 Investigations, United States NavyUnited States NavyThe United States Navy is the naval warfare service branch of the United States Armed Forces and one of the seven uniformed services of the United States. The U.S. Navy is the largest in the world; its battle fleet tonnage is greater than that of the next 13 largest navies combined. The U.S...
Judge Advocate GeneralJudge Advocate General's Corps, U.S. NavyThe Judge Advocate General's Corps also known as the "JAG Corps" or "JAG" is the legal arm of the United States Navy. Today, the corps consists of a worldwide organization of more than 730 Judge Advocates, 30 limited duty officers , 500 enlisted members and nearly 275 civilian personnel, serving... - Uniform Code of Military Justice (UCMJ) ART. 32. INVESTIGATION, about.comAbout.comAbout.com is an online source for original information and advice. It is written in English, and is aimed primarily at North Americans. It is owned by The New York Times Company....