Posted on 07/11/2006 6:20:55 PM PDT by xzins
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.
Thought it would be a good reference
I may be wrong but I think that there is another big difference between an Article 32 procedure and a Grand Jury. I am not an expert on the law and the rules may vary from state to state and to the Feds but I thought that a Grand Jury consists of 24 persons who decide whether to proceed or not. How many sit on an Article 32 hearing?
See post #1
It details some of the other differences. The 4th paragraph lists a "body of jurors" for the Grand Jury, but it doesn't say how many.
As I read it, there is only one (1) article 32 investigation officer who forwards his report to higher for decision.
I believe you are correct, the one investigative officer is usually a military judge who forwards his results to the courts-martial convening officer. Although, I do not have any personal experience with the Article 32 process.
The one big advantage for the accused in an Art 32 is that they can get into the prosecutions stuff before the actual trial.....discover, data, witnesses, etc.
If there's not much of a case, then the Art 32 is duty bound to report that to higher.
If it goes forward to a court martial, that normally means the evidence is almost certainly going to be difficult for the accused.
Yes - remember that the commander is the responsible party and will decide whether or not to convene Courts Martial. Another thing to remember is that different ranks/positions have differing abilities to convene courts. A commander if an 0-5 or O-6 may only be able to convene NJP, administrative dismissals, and may have convening authority for only Summary or Special Courts Martial. If I remember well enough, I believe it takes a 2 star officer to convene a General Court, although it may be any flag officer in a commanding billet.
As such, when an investigation reveals to the CO that a GCM is warranted, the case is referred up to the officer in the Chain of Command with GCMCA.
It is not uncommon for the general officer to receive the operational command's Article 32, and if the review shows a GCM is warranted - they will further direct an independent A32 by one of his JAGs (trained lawyers). It can be a tedious process with separate investigations being conducted on as many as 3 levels prior to a referral of charges.
It will be interesting to see how they plead.
I always was told that if you get in trouble and you're offered an Article 15, take it. Because if the military goes to the trouble of a courts-martial it means they got you.
And I think you are right about the access of the evidence. From what I have read about Grand Juries, only the prosecution presents evidence, the defense does not participate. I had a very good friend of mine who was a Jag and defense attorney. He said he would rather argue for the defense in a military trial than a civilian trial because the rules of evidence are more favorable for the accused in a military trial.
I agree with pissant. It'll be interesting seeing what the troops each plead.
Most informative, thanks for posting this info.
Better than a civilian Grand Jury, where the defendant isn't notified, and the prosecutor makes a grab a low-hanging fruit. Especially during an election year.
UCMJ is fair. Our civilian jurisprudence could take a lesson. Lives can be ruined by false accusations. I've seen it first-hand. False accusation (99 years to life possible outcome), exoneration by a GJ, and a three month deferred adjudication slap on the wrist to the prevaricator
On this particular case. I don't know the outcome. .
I suspect that justice will be served. Real justice. I expect that from the UCMJ and our officer corps.
/johnny
Thanks.
I like your tagline.
"Safe and secure from all alarm."
May I humbly congratulate and thank you, xzins, for your service as a military chaplain. Here's hoping that our accused servicemen will find comfort in their respective religious faiths.
Amen to that.
Thank you so much for posting this information.
Interesting- that the one who is now a civilian out of all these cases- Green from the 101st- has pled not guilty at his first hearing.
The others are still active-duty and will have different perspectives- and advice.
...ping for future reference...
I read in one article that the military has taken legal action to bring Green back onto active duty in the Army.
Bookmarked.
Hhmmm..THAT would be interesting. I know they CAN- wonder how that would play out.
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