An Article 32 hearing is a proceeding under the United StatesUniform Code of Military Justice, similar to that of a preliminary hearing in civilian law. Its name is derived from UCMJ section VII ("Trial Procedure") Article 32 (10 U.S.C. § 832), which mandates the hearing.
The UCMJ specifies several different levels of formality with which infractions can be dealt. The most serious is a general court-martial. An article 32 hearing is required before a defendant can be referred to a general court-martial, in order to determine whether there is enough evidence to merit a general court-martial. Offenders in the US military may face non-judicial punishment, a summary court-martial, special court-martial, general court-martial, or administrative separation. A commanding officer, in the role as court-martial convening authority, will consult with the command judge advocate for advice on case disposition; factors to be considered include, inter alia, the relevant statutory and case law, the seriousness of the offenses, the strength or weakness of each element of the case, the promotion of good order and discipline, and the commander's desire for case disposition.
An investigation is normally directed when it appears the charges are of such a serious nature that trial by general court-martial may be warranted. The commander directing an investigation under Article 32 details a commissioned officer as investigating officer who will conduct the investigation and make a report of conclusions and recommendations. This officer is never the accuser, trial counsel (judge advocate prosecutor), nor in the accused's chain of command. This officer may or may not have any legal training, although the use of military attorneys (judge advocates) is recommended and common within service practice. If the investigating officer is not a lawyer, he or she may seek legal advice from an impartial source, but may not obtain such advice from counsel for any party.
An investigative hearing is scheduled as soon as reasonably possible after the investigating officer's appointment. The hearing is normally attended by the investigating officer, the accused and the defense counsel. The commander will ordinarily detail counsel to represent the United States, and in some cases a court reporter and an interpreter; these appointments are, in practical reality, duty assignments made by the criminal law branch of the command judge advocate's office. Ordinarily, this investigative hearing is open to the public and the media.
The investigating officer will, generally, review all non-testimonial evidence and then proceed to examination of witnesses. Except for a limited set of rules on privileges, interrogation, and the rape-shield rule (MRE 412), the military rules of evidence do not apply at this investigative hearing. This does not mean, however, that the investigating officer ignores evidentiary issues. The investigating officer will comment on all evidentiary issues that are critical to a case's disposition. All testimony is taken under oath or affirmation, except that an accused may make an unsworn statement.
The defense is given wide latitude in cross-examining witnesses. As of 2013 in cases where sexual assault is alleged some critics allege an extremely intrusive and aggressive cross examination of the victim is permitted, a practice which has been cited by critics of the military's handling of sexual assault in the United States military. In one case, a midshipman at the Navy Academy was interrogated for 30 hours over several days about their past sexual behavior.[1] If the commander details an attorney to represent the United States, this government representative will normally conduct a direct examination of the government witnesses. This is followed by cross-examination by the defense and examination by the investigating officer upon completion of questioning by both counsel. Likewise, if a defense witness is called, the defense counsel will normally conduct a direct examination followed by a government cross-examination. After redirect examination by the defense counsel, or completion of questioning by both counsel, the investigating officer may conduct additional examination. The exact procedures to be followed in the hearing are not specified in either the Uniform Code of Military Justice or the Manual for Court-Martial.
In common law jurisdictions, a preliminary hearing, preliminary examination, preliminary inquiry, evidentiary hearing or probable cause hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial. At such a hearing, the defendant may be assisted by a lawyer.
Non-judicial punishment (NJP) is a disciplinary measure that may be applied to individual military personnel, without a need for a court martial or similar proceedings.
A court-martial or court martial is a military court or a trial conducted in such a court. A court-martial is empowered to determine the guilt of members of the armed forces subject to military law, and, if the defendant is found guilty, to decide upon punishment. In addition, courts-martial may be used to try prisoners of war for war crimes. The Geneva Conventions require that POWs who are on trial for war crimes be subject to the same procedures as would be the holding military's own forces. Finally, courts-martial can be convened for other purposes, such as dealing with violations of martial law, and can involve civilian defendants.
The Uniform Code of Military Justice (UCMJ) is the foundation of the system of military justice of the armed forces of the United States. The UCMJ was established by the United States Congress in accordance with their constitutional authority, per Article I Section 8 of the U.S. Constitution, which provides that "The Congress shall have Power. .. to make Rules for the Government and Regulation of the land and naval forces" of the United States.
The Judge Advocate General's Corps also known as the "JAG Corps" or "JAG" is the legal arm of the United States Air Force.
Courts-martial of the United States are trials conducted by the U.S. military or by state militaries. Most commonly, courts-martial are convened to try members of the U.S. military for violations of the Uniform Code of Military Justice (UCMJ). They can also be convened for other purposes, including military tribunals and the enforcement of martial law in an occupied territory. Federal courts-martial are governed by the rules of procedure and evidence laid out in the Manual for Courts-Martial, which contains the Rules for Courts-Martial (RCM), Military Rules of Evidence, and other guidance. State courts-martial are governed according to the laws of the state concerned. The American Bar Association has issued a Model State Code of Military Justice, which has influenced the relevant laws and procedures in some states.
The judicial system of Israel consists of secular courts and religious courts. The law courts constitute a separate and independent unit of Israel's Ministry of Justice. The system is headed by the President of the Supreme Court and the Minister of Justice.
The Coast Guard Judge Advocate General oversees the delivery of legal services to the United States Coast Guard, through the Office of the Judge Advocate General in Washington, the Legal Service Command, offices in the Atlantic and Pacific Areas, nine Coast Guard Districts, the Coast Guard Academy, three training centers, and a number of other activities and commands. Legal services are delivered by Coast Guard judge advocates and civilian counsel in ten legal practice areas: criminal law/military justice, operations, international activities, civil advocacy, environmental law, procurement law, internal organizational law, regulations and administrative law, legislative support and legal assistance.
Ehren Keoni Watada is a former first lieutenant of the United States Army, best known as the first commissioned officer in the US armed forces to refuse to deploy to Iraq. In June 2006, Watada refused to deploy for his unit's assigned rotation to Operation Iraqi Freedom, saying he believed the war to be illegal and that, under the doctrine of command responsibility, it would make him party to war crimes. At the time, he was assigned to duty with the 5th Battalion, 20th Infantry Regiment, part of the 3rd Brigade, 2nd Infantry Division, as a fire support officer. He was brought before a court-martial in 2007 which ended in a mistrial; the Army subsequently discharged him under "Other-Than-Honorable-Conditions" (OTH) in 2009. An OTH discharge is the least favorable type of administrative discharge from the Army, and is reserved for a "pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army."
The United States Army Trial Defense Service is an independent Field Operating Agency within the U.S. Army Judge Advocate General's Corps and falls under the Commanding General of the U.S. Army Judge Advocate General's Legal Center and School. The TDS motto is "Defending Those Who Defend America."
The Navy-Marine Corps Court of Criminal Appeals (NMCCA) is the intermediate appellate court for criminal convictions in the United States Navy and the Marine Corps.
In the United States military, the Army Court of Criminal Appeals (ACCA) is an appellate court that reviews certain court martial convictions of Army personnel.
The United States Marine Corps' Judge Advocate Division serves both to advise the Commandant of the Marine Corps (CMC) and other officials in Headquarters, Marine Corps on legal matters, and to oversee the Marine Corps legal community. The head of the Judge Advocate Division (JAD) is the Staff Judge Advocate to the Commandant.
United States v. DuBay, 17 C.M.A. 147, 37 C.M.R 411, was a United States case decided by the Court of Military Appeals that established procedure in courts-martial for holding hearings to determine issues raised collaterally which require findings of fact and conclusions of law. Such hearings are commonly referred to as "DuBay hearings", and the case is cited in the rules of the Court of Appeals for the Armed Forces.
The Coast Guard Court of Criminal Appeals (CGCCA) is the intermediate appellate court for criminal convictions in the U.S. Coast Guard. It is located in Washington, DC.
The Air Force Court of Criminal Appeals (AFCCA) is an independent appellate judicial body authorized by Congress and established by the Judge Advocate General of the Air Force pursuant to the exclusive authority under 10 U.S.C. § 866(a). The Court hears and decides appeals of United States Air Force court-martial convictions and appeals pendente lite. Its appellate judges are assigned to the Court by The Judge Advocate General. The Judge Advocate General instructs court-martial convening authorities to take action in accordance with the Court's decisions.
The term convening authority is used in United States military law to refer to an individual with certain legal powers granted under either the Uniform Code of Military Justice or the Military Commissions Act of 2009.
The Judge Advocate General's Corps, also known as JAG or JAG Corps, is the military justice branch or specialty of the United States Air Force, Army, Coast Guard, Marine Corps, and Navy. Officers serving in the JAG Corps are typically called judge advocates.
Unlawful command influence (UCI) is a legal concept within American military law. UCI occurs when a person bearing "the mantle of command authority" uses or appears to use that authority to influence the outcome of military judicial proceedings. Military commanders typically exert significant control over their units, but under the Uniform Code of Military Justice (UCMJ) a commander must take a detached, quasi-judicial stance towards certain disciplinary proceedings such as a court-martial. Outside of certain formal actions authorized by the UCMJ, a commander using their authority to influence the outcome of a court-martial commits UCI. If UCI has occurred, the results of a court-martial may be legally challenged and in some cases overturned.
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