Article 32 Replaces the 5th Amendment

On behalf of Law Offices of David P. Sheldon on Wednesday, March 30, 2016.

Although the Fifth Amendment of the Constitution guarantees the right to indictment by a grand jury, that does not apply to service members prosecuted under the Uniform Code of Military Justice (UCMJ). Article 32 of the UCMJ does, however, provide for a preliminary investigation to determine whether the suspected offense warrants referral to a court martial.

This blog post will discuss the procedures under Article 32 and why it is important to obtain experienced criminal defense counsel as early as possible during the proceedings.

The Article 32 investigation process

An Article 32 investigation will only be initiated if the commanding officer (CO) believes the suspected offense may warrant a general court-martial. For a preliminary hearing, an impartial, commissioned officer will be appointed as the investigating officer, or IO. Normally, the IO will be a JAG.

After being appointed, the IO will schedule a hearing to review the evidence, interview available witnesses, determine if probable cause exists to support the charges, and recommend how to dispose of the allegations. The service member has the right to use military legal counsel, which will be provided by the JAG office, or hire an independent, civilian lawyer who practices military law.

Except under some circumstances, the hearing is open to the public and media, although members of the public and media do not normally attend such hearings.

At the conclusion of the Article 32 hearing, the appointed investigating officer will submit a report of conclusions, including recommendations for further action, which the CO may or may not follow.

Important to have sound legal counsel

Recently, Congress has made significant changes to the preliminary hearing to, for example, allow alleged victims to not testify. These changes have impacted the significance of the Art. 32 hearing in many cases. All cases, though, are not the same and, no matter what, it is better to consult with experienced defense counsel earlier rather than later when facing criminal allegations. A defense counsel experienced in military law and the court-martial process can best protect your rights through the entire court-martial process, from investigation until the final outcome.