An Article 32 hearing is a proceeding under the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...

Uniform Code of Military Justice The Uniform Code of Military Justice (UCMJ, 10 U.S.C. §§ 801–946 is the foundation of military law in the United States. It was established by the United States Congress in accordance with the authority given by the United States Constitution ...

, similar to that of a

preliminary hearing Within some criminal justice, criminal justice systems, a preliminary hearing, preliminary examination, preliminary inquiry, evidentiary hearing or probable cause hearing is a proceeding, after a criminal complaint has been filed by the prosecuto ...

in civilian law. Its name is derived from UCMJ section VII ("Trial Procedure") Articl
32
(10 U.S.C. § 832), which mandates the hearing. The UCMJ specifies several different levels of formality with which infractions can be dealt. The most serious is a ''

general court-martial A court-martial or court martial (plural ''courts-martial'' or ''courts martial'', as "martial" is a postpositive adjective) is a military court or a trial conducted in such a court. A court-martial is empowered to determine the guilt of memb ...

''. 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 Non-judicial punishment (or NJP) is any form of punishment that may be applied to individual military personnel, without a need for a court martial or similar proceedings. United States In the United States Armed Forces, 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 The term convening authority is used in United States military law to refer to an individual with certain legal powers granted under either the Uniform Code of Military Justice (i.e. the regular military justice system) or the Military Commissions ...

, will consult with the command

judge advocate Judge-advocates are military lawyers serving in different capacities in the military justice systems of different jurisdictions. Australia The Australian Army Legal Corps (AALC) consists of Regular and Reserve commissioned officers that provi ...

for advice on case disposition; 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 An officer is a person who holds a position of authority as a member of an armed force or uniformed service. Broadly speaking, "officer" means a commissioned officer, a non-commissioned officer, or a warrant officer. However, absent context ...

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 A command hierarchy is a group of people who carry out orders based on others' authority within the group. It can be viewed as part of a power structure, in which it is usually seen as the most vulnerable and also the most powerful part. Milit ...

. 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 (MRE 412), the military

rules of evidence The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fa ...

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. As of 2013 in cases where

sexual assault Sexual assault is an act in which one intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence, which ...

is alleged some critics allege an extremely intrusive and aggressive cross examination of the victim is permitted, a practice which has been cited by critics of the military's handling of

sexual assault in the United States military Sexual assault in the United States armed forces is an ongoing issue which has received extensive media coverage in the past. A 2012 Pentagon survey found that approximately 26,000 women and men were sexually assaulted that year; of those, onl ...

. In one case, a midshipman at the Navy Academy was interrogated for 30 hours over several days about their past sexual behavior. 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

or the Manual for Court-Martial.

Notes and references

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External links

England Waives Right to Challenge Charges
''

United States Navy The United States Navy (USN) is the maritime service branch of the United States Armed Forces and one of the eight uniformed services of the United States. It is the largest and most powerful navy in the world, with the estimated tonnage ...

Judge Advocate General''
Uniform Code of Military Justice (UCMJ) ART. 32. INVESTIGATION
''

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'' United States military law

See also

Notes and references

External links