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Article 32 Investigation
I. Purpose
 The Fifth Amendment constitutional right to
grand jury indictment is expressly inapplicable to the Armed Forces. In
its absence, Article 32 of the Uniform Code of Military Justice, (Section
832 of Title 10, United States Code), requires a thorough and impartial
investigation of charges and specifications before they may be referred to
a general court-martial (the most serious level of courts-martial).
However, the accused may waive the Article 32 investigation requirement.
The purpose of this pretrial investigation 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. The investigation also
serves as a means of pretrial discovery for the accused and defense
counsel in that copies of the criminal investigation and witness
statements are provided and witnesses who testify may be cross-examined.
II. Procedures
An investigation is normally directed when
it appears the charges are of such a serious nature that trial by general
court-marital 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. This officer may or
may not have any legal training, although the use of military attorneys
(judge advocates) is 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. In some
cases, the commander will also detail counsel to represent the United
States, a court reporter and an interpreter. 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 un-sworn
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.
The investigating
officer, however, will generally:
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Announce the beginning of the investigation and its purpose.
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Advise the accused of his or her right to counsel and ascertain whether
the accused will be represented by counsel, and if so, by whom.
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Formally read the charges preferred against the accused.
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Advise the accused of his or her rights to make a statement or to remain
silent.
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Review the documentary or real evidence available against the accused.
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Call any available adverse witnesses.
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Review documentary or real evidence in favor of the accused.
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Call available favorable witnesses for the accused.
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Hear any evidence presented by the accused.
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Hear any statement the accused or defense counsel may make.
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Entertain, if any, arguments by counsel.
Upon completion of the hearing, the investigating officer submits a
written report of the investigation to the commander who directed the
investigation. The report must include:
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An explanation of any delays in the investigation.
--The investigating officer’s conclusion whether the charges and
specifications are in proper form.
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The investigating officer’s conclusion whether reasonable grounds exist to
believe that the accused committed the offenses alleged.
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The recommendations of the investigating officer, including disposition of
the charges.
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Upon completion, the report is forwarded to the commander who directed the
investigation for a decision on disposition of the offenses.
III. Rights of the Accused
The accused at an Article 32 investigation
has several important rights.
The accused also has a right to waive an Article 32 investigation and such
waiver may be made a condition of a plea bargain. If the investigation is
not waived, the accused is entitled to be present throughout the
investigative hearing (unlike a civilian grand jury proceeding). At the
hearing, the accused has the right to be represented by an appointed
military defense counsel or may request an individual military defense
counsel by name and may hire a civilian attorney at his or her own
expense. Again, unlike a civilian grand jury proceeding, the service
member, through the member’s attorney, has the following rights: to call
witnesses; to present evidence; to cross-examine witnesses called during
the investigation; to compel the attendance of reasonably available
military witnesses; to ask the investigating officer to invite relevant
civilian witnesses to provide testimony during the investigation; and, to
testify, although he or she cannot be compelled to do so.
The accused must be served with a copy of the investigative report and
associated evidence. Within five days of receipt, the accused may submit
objections or comments regarding the report to the commander who directed
the investigation.
IV. Comparison to the Civilian Preliminary
Hearing and Grand Jury Process
The Article 32 investigation has often been
compared to both the civilian preliminary hearing and the civilian grand
jury since it is functionally similar to both. All three of these
proceedings are theoretically similar in that each is concerned with
determining whether there is sufficient probable cause (reasonable
grounds) to believe a crime was committed and whether the person accused
of the crime committed it. The Article 32 investigation, however, is
broader in scope and more protective of the accused. As such, it is not
completely analogous to either proceeding.
 A civilian defendant at a preliminary hearing may have the right to
counsel, the right to cross-examine witnesses against him or her, and the
right to introduce evidence in his or her behalf. An Article 32
investigation is considered broader in scope because it serves as a
mechanism for discovery by the defense, and because it supplies the
convening authority (the decision authority) with information on which to
make a disposition decision. While a decision by a magistrate at a
preliminary hearing is generally final, the investigating officer’s
decision is merely advisory.
Unless waived, a civilian defendant may be prosecuted in a federal court
for an offense punishable by death, imprisonment for a term exceeding one
year, or imprisonment at hard labor only after indictment by a grand jury.
(An indictment is a formal written accusation or charge). This Fifth
Amendment constitutional right does not apply to state prosecutions -
although some state constitutions and statutes have provisions that are
analogous to the Fifth Amendment and require an indictment by a grand jury
for a felony or other defined offenses. Accordingly, if a service member
is tried in a state court, his or her right to indictment by grand jury is
dependent upon the particular state’s procedures.
The grand jury is a closed, secret proceeding, in which only the
prosecution is represented. The body of jurors decides to indict based
upon evidence frequently provided solely by the prosecutor. This may even
happen without the accused even having knowledge of the proceeding.
Inspection or disclosure of the transcript of the proceeding after
indictment is also, generally, severely limited. Obviously, by his
absence, a defendant is precluded from the opportunity to confront and
cross-examine witnesses, to present evidence, call witnesses in his or her
favor, or even to speak for him or herself. If a defendant is called
before a grand jury, he or she has no right to have a lawyer present
through or at any other part of the proceeding. If a grand jury does not
indict, the decision is generally final and charges against the defendant
are usually dismissed.
The Article 32 investigation, in contrast, is generally an open proceeding
that may be attended by the public. Unlike a grand jury proceeding, the
accused has the right to be present at the investigation; the right to be
represented by an attorney; the right to present evidence; the right to
review a copy of the investigative report as well as the several other
important rights discussed above. Again, the recommendation of the Article
32 investigating officer is not final - it is only advisory.
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