No person may face a general court-martial without there having been either an Article 32(b) Preliminary Hearing or without waiving the Article 32(b) Preliminary Hearing.
While there are some tactical reasons to waive an Article 32(b) Preliminary Hearing, there are significant reasons not to waive the hearing. This critical decision is always unique to the evidence and the accused person.
It is important to understand what an Article 32(b) Preliminary Hearing is.
An independent hearing Officer is appointed to preside over this hearing. He or she is not a prosecutor and is also not a member of the command. In many cases, and in all sexual misconduct cases, the Preliminary Hearing Officer is a uniformed Judge Advocate (attorney).
The Preliminary Hearing Officer presides over this hearing to act impartially and to make a report relevant to the determination of the following issues:
- Whether or not the specification alleges an offense;
- Whether or not there is probable cause to believe that the accused person committed the offense or offenses charged at preferral;
- Whether the convening authority has court-martial jurisdiction over the accused person and over the offense or offenses charged at preferral;
- A recommendation as to the disposition that should be made of the case. Disposition means what should happen. In other words, should the charges go to general court-martial, should they be resolved with nonjudicial punishment (Article 15 / CAPT’s Mast), should one or more of the charges be dismissed?
There are several rights that are afforded to people accused of criminal offenses in the military court-martial process. Those rights include the following:
- The right to be advised of the charges under consideration; (this means to have them read aloud to you; sometimes when there have been edits to them, poor penmanship can cause some confusion)
- To be represented by counsel; Every person in the military is assigned (called detailing) a uniformed defense counsel to represent them for no cost. Every person in the military also has the right to hire private civilian at the expense of the person being charged, or potentially their loved ones and family.
- To be informed of the purpose of the preliminary hearing; the list of the purpose outlined above is read aloud to them.
- To be informed of the right against self-incrimination under Article 31, UCMJ; This deals with whether the accused person decides to provide information directly from him or her.
- To be present throughout the taking of evidence; This right can be foreclosed on or lost if the accused person disrupts the proceedings or makes gestures, facial expressions, or other aggressive or distracting noises that could interfere with what witnesses testify about.
- To cross-examine witnesses on matters relevant to the issues for determining if there is probable cause, about jurisdiction, or about disposition of the offenses;
- To present matters in defense and mitigation relevant to the issues for determination if there is probable cause, about jurisdiction, or about disposition of the offenses;
- To make a sworn or unsworn statement relevant to the issues for determination if there is probable cause, about jurisdiction, or about disposition of the offenses.
Typically, the Preliminary Hearing Officer also will allow submission of any additional documents for consideration to the hearing officer no later than 24 hours from the closure of the preliminary hearing. If the government representative submits additional matters after the hearing adjourns, the accused person’s attorney can also respond to additional information submitted by the Government. In those instances, the hearing officer will usually permit the defense between 24 to 72 hours to respond.
In a Preliminary Hearing, an accused person can request production of witnesses and evidence that are relevant, non-cumulative and necessary to the determination of the issues listed above. In such cases, the defense will have to justify why those materials or persons are relevant and not cumulative. Cumulative means that there is the same or substantially the same information contained in the file or materials that the hearing officer will already have for consideration. This area is usually the most arduous for difference between the government counsel and the defense. There are strategies that we have historically employed to demonstrate why our evidence and witnesses meet the necessary standard.
Additionally, there are now subpoena powers for a hearing officer to use, if they determine the standard has been met. The hearing officer can obtain evidence for use at the preliminary hearing through noncompulsory means or by pre-referral subpoena. A subpoena is a legal requirement to produce documents to a certain person or place by a certain amount of time.
Preliminary Hearings and whether to hold them or to waive them is a unique decision in every case and is not to be taken lightly or without deliberation and consideration of all of the factual circumstances and overall goals of the defense. Recall that no charge against an accused person in the military could be tried at a general court-martial without first being heard by a Preliminary Hearing Officer under Article 32, UCMJ, unless the accused person agrees otherwise and waives the hearing instead.