I just got charged by the military and got notice of an upcoming Article 32(b) hearing. What is an Article 32 and is it really that important?

Effective January 2015, R.C.M. 405(a) was amended. The pretrial stage once was known as the Article 32(b) investigation. As of January 2015, this pretrial stage is known as the Article 32(b) hearing. This pretrial hearing is the military’s equivalent of a grand jury, but it differs from a civilian grand jury in many ways. First, there is not a group of people who are listening to and evaluating the prosecution’s evidence to make a probable cause determination; in the military, only one investigating officer is appointed to evaluate the case. As of 2015, if your case is a sexual assault allegation, the hearing officer will be a Judge Advocate and in some branches of service will also be an active duty military judge. Usually this person is a field grade officer; in some commands, they care so little about these hearings that they appoint substandard officers as a form of punishment. Second, unlike the civilian world where a case cannot go forward without a vote from the grand jury (called an indictment), even if the military’s hearing officer recommends dismissal of charges, the command does not have to listen to the recommendation and can still prosecute anyway. Another important change to the Article 32(b) hearing is that the complaining witness does not have to attend for a case to go forward. In fact, the complainant can attend the hearing, listen to the testimony of all other witnesses, and then elect not to testify.

Despite all of the amendments to the rules, the Article 32(b) hearing is a critical stage in your case. When the complainant attends, it is the first opportunity a defense attorney as to cross-examine the alleged victim(s) in your case. The kinds of questions that are posed and the way they are phrased could mean the difference in whether or not your case ever sees the inside of a courtroom. If your case does go forward, a detailed pretrial cross-examination of the alleged victim is often a paramount step in taking apart the government’s case. Even in cases where the complainant does not appear in person to testify, they often testify over the phone. In those cases where the alleged victim refuses to even testify over the phone, there are tactics to consider in calling other witnesses who will contradict the sworn statement of the complainant and then the alleged victim is not there to try to “explain” the contradictions.

You may be considering the approach to “wait and see” how things go at the Article 32(b) hearing before deciding to hire a civilian attorney. Because of how crucial the Article 32(b) hearing is, this approach could prove irreversible to your case.