Dual Purpose Of Article 32 Investigation

The Article 32 investigation serves a dual purpose in that it provides the accused with a discovery vehicle and the convening authority with a means to ascertain and impartially weigh the available facts to ensure against a trial on baseless charges. It is not intended as a vehicle to perfect a case against the accused. The investigation should be limited to the issues raised by the charges and necessary to determine the proper disposition of the case. However, the Investigating Officer (IO) is not limited to examination of the witnesses and evidence presented by the Government Representative (GR) and defense counsel. The IO’s goal is to compile enough information so that the convening authority can assess whether the admissible evidence

A court-martial can only be closed without the consent of the accused under the provisions of the Military Rules of Evidence 412(c) (evidence of victim’s prior sexual conduct) , 505(i) and (j) (classified information) , or 506(i) (government privilege) . Even a waiver of a public trial by the accused is not sufficient justification for closing the trial. The public has an interest in attending courts-martial. Public access to proceedings reduces the chances for arbitrary decisions and increases the public’s confidence in the process. These considerations apply to Article 32 investigations. For the most part, a preliminary hearing is also “open court”. The defendant his or her family, any victims, the media, and other interested parties may be present at a preliminary hearing. However, in rare cases, a judge might close the court; for example, when the victim of a sex crime is a child. Under AFI 51-201, para. 12.6.1.1, the IO should refer any request for information on a criminal case to the local SJA. The IO should also immediately advise the local SJA if any requests are received directly from a journalist to attend the proceedings. The local SJA should involve the base's public affairs’ office. Furthermore, an IO may prohibit spectators or news media from tape recording, videotaping, or filming the testimony or other parts of the hearing as part of their duty to conduct

After hearing and seeing all the evidence, he or she may document some errors in the charges or wish to make recommendations concerning the referral of the charges to a court-martial. For example, the IO may note the date of an alleged offense is inaccurate or a lesser-included offense is warranted because evidence is lacking on a certain element of the offense actually charged. Or, in the extreme, a specification may not be supported at all by the evidence. Remember, this is only recommendations, not changes to the charges, which the GCMCA may later accept. When making recommendations, be sure to state specifically what evidence (or lack thereof) supports them and then determine whether they are “minor,” or “major” changes. In a preliminary hearing, the judge will decide whether to take the case to trial, reduce the charges, or dismiss the case