The Mayer Law Blog

Possible Changes to UCMJ Article 32

Posted November 21st, 2013 in Military Law

One of the most important aspects of a General Court-Martial is the requirement that an investigation pursuant to Article 32, UCMJ occur before the referral of charges. This is a longstanding rule, known well to military lawyers throughout the services. However, it is poised to change.

Currently, it serves several important purposes, these include:

1. Causing the government to prove that reasonable grounds exist to move a case to trial.

2. Allowing the defense lawyer an opportunity to test the evidence and conduct discovery.

3. Allowing the defense an opportunity to present evidence that might cause the court-martial to disappear before trial.

4. Allowing the government to test the strength of evidence and witnesses in anticipation of possible trial.

5. In cases where one of the defense strategies is to show ownership of the offenses and a desire to meaningfully arrive at a plea agreement, the Article 32 can be waived to show good faith.

Now, with all the rage over military sexual assaults, Congress is considering proposals to change Article 32, including eliminating some of its purposes and provisions.

Possible changes include:

– A complete revamp of the system, reducing the availability of witnesses for defense cross examination.

– A change in the rights of military defense counsel to test the veracity of evidence.

– Creating greater rank/qualification requirements for Article 32 Investigating Officers.

– Affording greater powers to counsel for special victims.

What does this mean for someone accused of a crime under the UCMJ.

– We may lose an important discovery tool, where military defense lawyers are able to cross examine witnesses (including alleged victims) on the record. This means that their testimony is recorded and occasionally transcribed. This is an important tool when, at trial, a military lawyer is attempting to address inconsistencies in testimony.

– An important, impartial review of the facts and circumstances may meaningfully disappear. This was an important step in the court-martial process because an impartial investigator was empowered to review all relevant facts and circumstances. It never hurts to have an impartial review, as it is an important gauge of how a case will fare at trial.

I’m not a fan of keeping rules and procedures just because “that’s the way we’ve always done it.” However, lets also not forget that rules and procedures often remain part of the justice process because they have been tested throughout the years and deemed to be fair and important.

Right now, the sentiment against Article 32 is emotional and largely a result of one case at the Naval Academy. Such emotions never make for good legislation. If it needs to be changed, calmer heads should prevail.

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