Unconditional Waivers to Article 32(b) Proceedings are Dangerous and Unwise
There is an alarming trend right now among military defense counsel: they are telling their military clients that there is no point in participating in an Article 32(b) proceeding anymore and the client is better off just waiving his right to the hearing. I disagree.
Article 32(b) Proceedings are Not Dead
What your counsel may not have told you is that it is not a well-settled or well-established principle that Article 32(b) has been amended in a way that would deprive you of the rights you would normally ben afforded under Article 32(b). “Old Article 32(b)” gives a military accused the right to a through and impartial investigation and rights of discovery during the proceeding. There is a legitimate issue in whether or not your case entitles you to a complete investigation or merely a “preliminary hearing.” The first issue involves whether or not your alleged misconduct occurred before 26 December 2014. If it did, do NOT wave your rights to an Article 32(b) proceeding.
If You Waive your Article 32(b), You Waive Judicial Enforcement of All Your Article 32(b) Rights
Even if the government tries to only provide you with a “preliminary hearing” and not a complete “investigation,” you and your counsel can challenge that limitation of your rights in front of a military judge. If you simply waive your rights to an Article 32(b) proceeding unconditionally, you will forever WAIVE the right to challenge a limited Article 32(b) proceeding had on your case and you WAIVE the right to later challenge the constitutionality of such a limitation.
If You Waive your Article 32(b), You Waive a Worthy Appellate Issue
No military accused wants to consider that his case will end up on appeal because if his case ends up being appealed, it means that he was found guilty of one or more offenses. And no matter how sound the trial strategy is, a military accused can never discount the possibility that a panel goes the wrong way and convicts.
If you waive your right to an Article 32(b) proceeding, you automatically waive your right to appeal the issue of the constitutional challenge to the Article 32(b) amendments and how they were applied in your particular case.
Waiver means that it is gone forever and final waiver means your appellate counsel cannot revive it for you. Neither a military judge nor a military appellate court will even consider the issue if you unconditionally waive your Article 32(b) proceeding to begin with.
Do Not Let the Government Introduce Unreliable “Evidence” Against You
The other issue involved in the debate about Article 32(b) concerns what kind of “evidence” the government can present during the proceedings to try to establish that your case should go forward. Under R.C.M. 405(g), certain kinds of documents cannot be considered as part of the proceeding over defense objection. For instance, R.C.M. 405(g) does not permit an unsworn police report to be considered if the defense objects. The defense should object to police reports being considered because they are a summary of what other people say, and often what other people say without having to swear to it. If your defense counsel does not object to this evidence, they make it that much less likely that the person or people referenced in the report will not have to show up themselves and face cross-examination.
The government prosecutors are taking the position that R.C.M. 405(g) is no longer in effect and that the protections it affords are not substantial to a military accused. First, no law has been passed by Congress or signed into law by the President that eliminates R.C.M. 405(g) and the growing standpoint of military judges is that R.C.M. 405(g) is alive and well. Do not let yourself lose out on protections because your military counsel has bought off on the government’s position that Article 32(b) is obsolete, that it means nothing anymore, and that it is “just a waste of time.”
There is also a misconception that you are not entitled to witnesses at the Article 32(b). Though it is true that complainants (that the statute calls “victims”) have the absolute right not to come to the hearing, a small percentage will come to testify. Even if the complainant elects not to testify, other military witnesses can be compelled to testify and their testimony may undermine the allegations without giving the complainant an opportunity to respond. Also, other civilian witnesses must be invited to come. Often, the trial counsel assumes civilian witnesses will automatically decline but some do not. Also, if the military counsel does not require it, there may not be evidence that the witness was invited. Waiving the Article 32(b) hearing will waive your opportunity to undermine the allegation early.
What to Do if You Have Already Waived Your Article 32(b) Proceeding
R.C.M. 405(k) states that an Investigating Officer, convening authority, or a military judge can relieve you of your waiver to your Article 32(b) proceeding for good cause shown. If you have already waived your right to Article 32(b), you can and should ask the investigating officer, the convening authority to relieve you of your waiver and permit you to have your Article 32(b) proceeding. Where you are in your case will impact to whom you need to ask for relief from your prior waiver. There is an entire body of case law in the military that talks about what will be enough to show “good cause” for that waiver; you need to consult with an attorney with a proven record that understands Article 32(b), R.C.M. 405, and all of the cases in the military on these issues. It may not bee too late to ensure that your rights are ensured.