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13. Article 32 Preliminary Hearing

Chapter 13

Article 32 Preliminary Hearing

 

  1.       References

  2.       What is an Article 32 Preliminary Hearing?

  3.       When is a Preliminary Hearing Necessary?

  4.       What are its Purposes?

  5.       Scope of the Preliminary Hearing

  6.       Participants

  7.       Witness and Evidence Production

  8.       Procedure for Conducting the Hearing

  9.       Report of Preliminary Hearing

  10.       Treatment of Defects

 

I. References

A. U.C.M.J., Article 32

B. Rules for Courts-Martial (RCM) 404A and 405

C. DA Pam 27-17, Procedural Guide for Article 32 Preliminary Hearing Officer (18 Jun 15).

II. What is an Article 32 Preliminary Hearing? 

A. The preliminary hearing is a formal preliminary hearing conducted prior to referral of charges.  Article 32(a)(1)(A), UCMJ reads: “a preliminary hearing shall be held before referral of charges and specifications for trial by a general court-martial.”  Note that the preliminary hearing is only required when charges will be referred to a general court-martial.  RCM 405(a). 

B. The preliminary hearing has been labeled the “military equivalent” of a civilian grand jury proceeding.  United States v. Bell, 44 M.J. 403 (C.A.A.F. 1996); United States v. Powell, 17 M.J. 975 (A.C.M.R. 1984).

C. Note that older caselaw cited in this chapter may refer to the preliminary hearing as an “investigation” and may refer to the preliminary hearing officer as the “investigating officer” or “IO.”  This reflects the terminology in use at the time those cases were decided. 

III. When is a preliminary Hearing necessary?

A. The preliminary hearing is a prerequisite to trial by General Court-Martial.  UCMJ art. 32(a)(1); RCM 405(a).

1. Not required for trial by special court-martial. 

2. Not required for trial by summary court-martial. 

B. Exceptions to the preliminary hearing requirement.

1. Earlier preliminary hearing.  Another preliminary hearing is not required where there has already been a preliminary hearing into the subject matter of the charges before the accused is charged, the accused was present at that hearing, and was afforded the rights to counsel, cross-examination, and presentation of evidence required by RCM 405.  RCM 405(b).

a. United States v. Diaz, 54 M.J. 880 (N-M. Ct. Crim. App. 2000):  After the Article 32, the accused identified a defect in the preferral of the initial charges, which were dismissed, and new charges preferred.  The accused requested a new Article 32, contending that the preferral defect meant that no charges had been investigated by the first Article 32.  The Navy Court held the first hearing was valid and satisfied the requirements of Article 32.

b. United States v. Burton, 2007 CCA LEXIS 281 (A.F. Ct. Crim. App. 2007) (unpublished):  A rape charge was preferred against the accused and the charge was investigated in accordance with UCMJ, Article 32.  At the investigation, the accused was represented by counsel and had an opportunity to cross-examine the victim.  The charge was referred to trial, but subsequently withdrawn because the accused committed additional misconduct.  The rape charge was re-preferred (along with several other charges) in an identical fashion except the accused’s unit had changed.  The charges were once again sent to an Article 32 investigating officer.  The defense counsel noted that the Government intended to rely on the previous Article 32 investigation for the rape charge and objected, demanding further investigation into the rape charge under RCM 405(b) because of new evidence calling the victim’s credibility into question.  The investigating officer did not investigate the rape charge, but simply attached a copy of the previous Article 32 investigation to the report of the investigation for the three new charges.  The defense objected that the original rape charge had not been re-investigated and filed a motion to dismiss at trial.  The military judge denied the motion to dismiss, finding that the original rape charge was identical to the new rape charge (except for the unit) and that charge had been properly investigated, so no new investigation was required.  The AFCCA held that the military judge abused his discretion in failing to order a new Article 32 investigation into the rape charge.  The court found that: “[W]hen the government relies on a previously completed Article 32 . . . hearing to support re-referral of dismissed charges, with no new recommendations by an investigating officer, the investigation is covered by Article 32(c) . . . and an accused has the opportunity to demand further investigation.”  However, the court held that the error was harmless beyond a reasonable doubt because the convening authority had been given the information concerning victim credibility, the SJA had commented on the victim’s credibility in the Article 34 advice, and the defense conducted a detailed cross-examination of the victim at trial. 

2. Accused may waive the preliminary hearing, although the convening authority may decide to conduct the preliminary hearing notwithstanding the waiver.  UCMJ art. 32(a)(1)(B); RCM 405(m).

a. Personal right of the accused.  United States v. Garcia, 59 M.J. 447 (C.A.A.F. 2004):  Accused must personally waive right to preliminary hearing (attorney cannot waive it for him). 

b. May be waived for personal reasons.  If waived for personal reasons, withdrawal of the waiver permitted upon a showing of good cause.  United States v. Stone, 37 M.J. 558 (A.C.M.R. 1993); United States v. Nickerson, 27 M.J. 30 (C.M.A. 1988).

c. May be waived as a condition of a pretrial agreement.  RCM 705(c)(2)(E); United States v. Shaffer, 12 M.J. 425 (C.M.A. 1982). 

1) United States v. Von Bergen, 67 M.J. 290 (C.A.A.F. 2008):  The military judge abused his discretion in denying appellant an Article 32 investigation on rehearing where the appellant had waived the investigation in a pretrial agreement, but then pled not guilty at rehearing.  The appellant’s improvident original plea had the effect of canceling the pretrial agreement according to its terms. 

IV. What Are Its Purposes?

A. The preliminary hearing is limited to the following purposes.  UCMJ art. 32(a)(1)(B)(2); RCM 405(a); RCM 405(e):

1. Determine whether each specification alleges an offense;

2. Determine whether there is probable cause to believe the accused committed the offense(s) charged;   

3. Determine whether the convening authority has court-martial jurisdiction over the offense and the accused; and

4. Recommend the disposition that should be made of the case.

B. Discovery is not a valid purpose.  “The preliminary hearing is not intended to perfect a case against the accused and is not intended to serve as a means of discovery or to provide a right of confrontation required at trial.”  RCM 405(a) discussion.

C. Preservation of testimony.

1. Preliminary hearing testimony might be admissible as substantive evidence at trial, as a prior inconsistent statement under MRE 801(d)(1) or as prior testimony under MRE 804(b)(1).  But counsel must use caution.  United States v. Austin, 35 M.J. 271 (C.M.A. 1992):  Child victim testified in detail at the Article 32 but recanted her testimony at trial and refused to talk about the offense.  Over defense objection, trial court admitted the 15-page transcript of the Article 32 testimony as a prior inconsistent statement pursuant to MRE 801(d)(1)(A) and as former testimony under MRE 804(b)(1).  The transcript was both read to the panel and given to the panel to take into the deliberation room.  Held:  reversible error to send transcript back to deliberation room with the panel.  The transcript was not an exhibit under RCM 921.

a. United States v. Ureta, 44 M.J. 290 (C.A.A.F. 1996):  Article 32 transcript admissible as prior inconsistent statement and substantive evidence on issue of guilt in case of rape and carnal knowledge of 13-year-old daughter, under MRE 801(d)(1).  Accused’s wife testified at Article 32 that accused confessed.  After Article 32 terminated, wife refused to discuss her testimony with Government.  Unsure whether wife would recant her Article 32 testimony at trial, Government called wife as witness, she recanted, acknowledged inconsistency, and over defense objection, Article 32 transcript was admitted and taken into deliberations.  CAAF held that Article 32 transcript was not admissible under MRE 608(b) (no extrinsic evidence of prior inconsistent statement when witness available and testifies, admits making prior statement, and acknowledges specific inconsistencies), but Article 32 transcript admissible under MRE 801(d)(1)(A) as substantive evidence and Government can call witness to establish foundation for admission.  Error to send transcript into deliberations, but harmless because unlike Austin, transcript was not the only evidence against accused.

b. Article 32 testimony may be admissible at trial as former testimony under MRE 804(b)(1), when the witness is unavailable.  United States v. Austin, 35 M.J. 271 (C.M.A. 1992); United States v. Connor, 27 M.J. 378 (C.M.A. 1989) (“If the defense counsel has been allowed to cross-examine the Government witness without restriction on the scope of cross-examination, then the provisions of M.R.E. 804(b)(1) and of the 6th Amendment are satisfied, even if that opportunity is not used, and the testimony can later be admitted at trial.”); United States v. Ortiz, 35 M.J. 391 (C.M.A. 1992) (government must establish that the witness was unavailable before former testimony may be properly admitted); United States v. Hubbard, 28 M.J. 27 (C.M.A. 1989) (stating when Article 32 testimony is offered at trial, the proponent must establish the unavailability of the witness per MRE 804(b)(1) and the 6th Amendment). 

2. Article 32 testimony may be admissible at trial as residual hearsay for unavailable declarants under MRE 807. United States v. Cabral, 47 M.J. 268 (C.A.A.F. 1997):  Five-year-old victim of sexual abuse appeared for trial but refused to testify.  Witness declared “functionally unavailable” and Article 32 videotaped testimony, which had “particularized guarantees of trustworthiness” (language suitable for 5 year old, described acts not common to experience of 5 year old, use of non-leading questions, no motive to fabricate) was admissible as residual hearsay.  

V. Scope of the PRELIMINARY HEARING

A. The preliminary hearing is limited to the examination of evidence and witnesses relevant to (RCM 405(e)(1)):

1. A determination whether each specification alleges an offense;

2. A determination whether there is probable cause to believe the accused committed the offense(s) charged;  

3. A determination whether the convening authority has court-martial jurisdiction over the offense and the accused; and

4. Recommendation as to the disposition that should be made of the case. 

B. Consideration of uncharged offenses.  UCMJ art. 32(f); RCM 405(e)(2):  If evidence adduced in a preliminary hearing indicates the accused may have committed uncharged offense(s), the Preliminary Hearing Officer (PHO) may consider subject matter of uncharged offense(s) without preferral of additional charge(s), provided the accused is present at the preliminary hearing, and notice of the nature of the uncharged charge(s) considered and certain rights (representation, cross-examination, and presentation) are afforded to the accused.

1. If the PHO considers uncharged offenses, the PHO may examine evidence and hear witnesses regarding those offenses.  The accused must be afforded all the rights listed in RCM 405(f), and must be afforded the opportunity to seek production of witnesses and evidence under RCM 405(h) so long as doing so would not cause undue delay to the proceedings.  RCM 405(e)(2).

2. If charges are changed to allege a more serious or essentially different offense, further investigation should be directed with respect to the new or different matter.  United States v. Bender, 32 M.J. 1002 (N.M.C.M.R. 1991).

VI. Participants

A. Appointing authority. 

1. Any court-martial convening authority may direct a preliminary hearing.  RCM 405(c).  

2. Usually, the special court-martial convening authority will order the preliminary hearing.

B. Preliminary hearing officer. 

1. Whenever practicable, the PHO should be an impartial judge advocate.  When it is impracticable to appoint a judge advocate due to exceptional circumstances, the convening authority may appoint an impartial commissioned officer, so long as that PHO has an impartial judge advocate available to provide legal advice to the PHO.  UCMJ art. 32(b); RCM 405(d)(1)(A).

a. Whenever practicable, the PHO should be equal or senior in grade to the trial counsel and defense counsel.  UCMJ art. 32(b)(3); RCM 405(d)(1)(B). 

b. The PHO must maintain impartiality throughout the proceedings, and must avoid becoming an advocate for either side.  RCM 405(d)(1)(D).

c. PHOs are disqualified from later acting in the case in any capacity.  RCM 405(d)(1)(D); United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004). 

2. Controls the proceedings.  It was not error for the investigating officer (IO) to limit redundant, repetitive, or irrelevant questions by the defense counsel.  United States v. Lewis, 33 M.J. 758 (A.C.M.R. 1991).

3. Must be impartial. 

a. PHO must be impartial, but not disqualified merely because of:

1) Prior knowledge about the case.  United States v. Schreiber, 16 C.M.R. 639 (A.F.B.R. 1954).

2) Investigated a related case.  United States v. Collins, 6 M.J. 256 (C.M.A. 1979).

b. The PHO is partial and is disqualified if: 

1) Played a prior role in perfecting the case against the accused. United States v. Lopez, 42 C.M.R. 268 (C.M.A. 1970); United States v. Parker, 19 C.M.R. 201 (C.M.A. 1955).

2) Previously formed or expressed an opinion about the accused’s guilt.  United States v. Natallelo, 10 M.J. 594 (A.F.C.M.R. 1980).

3) Served as DSJA in the OSJA.  United States v. Davis, 20 M.J. 61 (C.M.A. 1985).

4) Anytime his/her impartiality might reasonably be questioned.  United States v. Castleman, 11 M.J. 562 (A.F.C.M.R. 1981) (IO was close friend of accuser and vacationed with accuser two days before Article 32); United States v. Davis, 20 M.J. 61 (C.M.A. 1985) (IO was XO of NLSO and was defense counsel’s supervisor).

4. Advice.  Legal advisors should be impartial, and should limit their advice to matters of law or procedure.  Any substantive advice given by the legal advisor must be disclosed to the parties to provide them an opportunity to respond.

a. Persons performing prosecutorial functions are not neutral.  United States v. Grimm, 6 M.J. 890 (A.C.M.R. 1979).

b. With regard to substantive matters, any advice received must be from a neutral source.  United States v. Payne, 3 M.J. 354 (C.M.A. 1977).

c. Advice must not be given ex parte.  United States v. Payne, 3 M.J 354 (C.M.A. 1977): After receiving the advice, notice must be given of the person consulted, the substance of the advice, and the parties must be afforded a reasonable opportunity to respond.

5. Ex parte communication with the PHO.  Ex parte communication between trial counsel and the PHO regarding substantive matters constitutes error that will be tested for prejudice.  Ex parte communication has a presumption of prejudice that may be rebutted by the trial counsel.  United States v. Payne, 3 M.J. 354 (C.M.A. 1977) (seven meetings with trial counsel); United States v. Whitt, 21 M.J. 658 (A.C.M.R. 1985) (two “informal” ex parte interviews with three witnesses); United States v. Francis, 25 M.J. 614 (C.G.C.M.R. 1987) (meeting with CO, trial counsel, and accuser); United States v. Rushatz, 30 M.J. 532 (A.C.M.R), aff’d, 31 M.J. 450 (C.M.A. 1990) (contacting CID, visiting housing & finance offices, talking with potential witness).

a. United States v. Argo, 46 M.J. 454 (C.A.A.F. 1997):  Staff Judge Advocate’s request to IO (a subordinate officer not under his supervision) to reopen investigation to look into issue of unlawful command influence and reject the defense’s interpretation of precedent regarding “no-contact” order did not constitute unlawful command influence.  Accused suffered no prejudice by a full investigation of the unlawful command influence issues.  Although SJA’s ex parte contact violated the rule, there was no prejudicial impact because the IO consulted her own SJA for legal advice and exercised independent judgment and the defense did not enter an objection at any stage of the court-martial process.

b. United States v. Holt, 52 M.J. 173 (C.A.A.F. 1999):  IO’s post-Article 32 furnishing trial counsel with name and phone number of blood spatter expert who later provided helpful blood test and spatter testimony at trial created at least the appearance of impropriety by providing trial counsel with what was, in effect, a supplementary report that was neither transmitted to the commander who ordered the investigation nor served on the accused.  Such communication did not prejudice the accused, although the CAAF held that, in the future, such supplementary communications must be reported promptly to the command and to the accused.  If such a matter arises after referral, the information shall be provided promptly to the commander who referred the case to trial, the military judge, and the accused. The parties will be in the best position to determine whether any motions or objections are warranted based upon the nature of the information.

6. Delay authority.  United States v. Lazauskas, 62 M.J. 39 (C.A.A.F. 2005):  RCM 707(c) excludes, for 120-day speedy trial clock calculation purposes, any delay approved by the PHO if the convening authority previously delegated authority to the PHO to approve delays.  RCM 707(c) discussion.

C. Accused. 

1. Trial counsel must provide the defense with the following no later than five days after the direction of a preliminary hearing (RCM 404A(a)(2)): 

a. The order directing the preliminary hearing;

b. Statements within the control of military authorities of witnesses the trial counsel intends to call at the preliminary hearing;

c. Evidence the trial counsel intends to present at the preliminary hearing; and

d. Any matters provided to the convening authority when deciding to direct the preliminary hearing.    

2. The accused has the following rights at the hearing (UCMJ art. 32(d); RCM 405(f)):

a. To be advised of the charges under consideration;

b. To be represented by counsel;

c. To be informed of the purpose of the preliminary hearing;

d. To be informed of the right against self-incrimination under Article 31;

e. To be present throughout the taking of evidence unless the accused is voluntarily absent or disruptive (see RCM 405(j)(4));

f. To cross-examine witnesses on matters relevant to the purpose of the hearing;

g. Present matters relevant to the purpose of the hearing;

h. Make a sworn or unsworn statement relevant to the purpose of the hearing. 

D. Defense counsel. 

1. Military counsel will be detailed to represent the accused.  RCM 405(d)(3)(A).  Accused may also request individual military counsel (IMC).  RCM 405(d)(3)(B). 

2. Accused may be represented by civilian counsel at no expense to the government.  The accused will be provided reasonable time to employ civilian counsel and have that civilian counsel present at the preliminary hearing.  But, the hearing will not be unduly delayed for this purpose.  RCM 405(d)(3)(C); United States v. Pruner, 33 M.J. 272 (C.M.A. 1991). 

E. Trial counsel.  A judge advocate, not the accuser, will serve as counsel for the government.  RCM 405(d)(2). 

F. Reporter.  The convening authority may detail a reporter (i.e., paralegal) to assist the PHO in executing the preliminary hearing and preparing the report.  RCM 405(d)(4).  The reporter is usually the paralegal assigned to the accused’s unit, and the PHO must therefore take care to avoid substantive communications with the reporter.  The reporter can assist the PHO with coordinating witnesses, coordinating a location for the preliminary hearing, acquiring and operating recording and communications equipment, preparing correspondence for the PHO, and assisting the PHO with compiling the report of the preliminary hearing.  DA Pam 27-17, para. 1-4g (18 June 2015).

VII. Witness and Evidence Production

A. Notice of witnesses and evidence.  In accordance with timelines set by the PHO, the parties must provide to the PHO and the opposing party notice of the names and contact information for witnesses the party intends to call at the preliminary hearing, evidence the party intends to offer at the preliminary hearing, and any supplemental information the party intends to submit pursuant to RCM 405(k).  RCM 405(h)(1).

B. Witness production.  RCM 405(h)(2):

1. Prior to the preliminary hearing, defense counsel shall provide trial counsel a list of witnesses they want the government to produce for the preliminary hearing, and the form of their testimony (i.e., in person, telephonic, video conference).

2. Trial counsel must then respond to defense counsel as to whether the witness’s testimony is relevant, not cumulative, and necessary for the purpose of the hearing (see RCM 405(a)). 

3. If trial counsel objects to a witness, defense counsel may ask the PHO to determine whether the witness is relevant, not cumulative, and necessary.

4. Military witnesses.  RCM 405(h)(2)(A):

a. If government does not object to a defense-requested military witness, or if the PHO determines a military witness is relevant, not cumulative, and necessary, trial counsel will ask the witness’s commander to make the individual available to testify.

b. The witness’s commander will make the final decision as to whether the individual is available based on “operational necessity or mission requirements.”  The commander will also decide if the witness will testify in person, telephone, or other means of remote testimony.  The commander’s determination is final. 

c. In any case, a named victim who has suffered a direct physical, emotional, or pecuniary harm as a result of the misconduct being considered and who declines to testify is not required to testify at the preliminary hearing.  UCMJ art. 32(d)(3). 

5. Civilian witnesses.  RCM 405(h)(2)(B):

a. If government does not object to a defense-requested civilian witness, or if the PHO determines a civilian witness is relevant, not cumulative, and necessary, trial counsel will invite the witness to provide testimony at the hearing.  The civilian witness will decide whether or not to appear; civilian witnesses cannot be compelled to appear at the preliminary hearing.

b. If any expense will be incurred to produce the civilian witness, the convening authority will decide if the witness will testify in person, telephone, or other means of remote testimony.  The commander’s determination is final.  Civilian witnesses may not be compelled to provide testimony at a preliminary hearing.

6. Immunized witnesses.  Only a General Court-Martial Convening Authority (GCMCA) or designee has the authority to grant immunity to witnesses to testify at a preliminary hearing (or court-martial).  RCM 704(c); United States v. Douglas, 32 M.J. 694 (A.F.C.M.R. 1991) (no abuse of discretion in denying defense requested immunity for two witnesses at Article 32).

C. Evidence production.  RCM 405(h)(3):

1. Prior to the preliminary hearing, defense counsel shall provide trial counsel a list of evidence they want the government to produce for introduction at the preliminary hearing.

2. Trial counsel must then respond to defense counsel as to whether the evidence is relevant, not cumulative, and necessary for the purpose of the hearing (see RCM 405(a)). 

3. If trial counsel objects to the evidence, defense counsel may ask the PHO to determine whether the evidence is relevant, not cumulative, and necessary.

4. Evidence under the control of the government.  RCM 405(h)(3)(A):  If government does not object to the evidence, or if the PHO determines the evidence shall be produced, trial counsel will make reasonable efforts to obtain the evidence from the government custodian.

5. Evidence not under the control of the government.  RCM 405(h)(3)(B):

a. If government does not object to the evidence, or if the PHO directs the trial counsel to produce the evidence after determining that the evidence is relevant, not cumulative, and necessary, and that compelling production would not cause undue delay, the trial counsel can request that the evidence custodian produce the evidence, or can seek a pre-referral investigative subpoena (see Chapter 11 for details on the pre-referral investigative subpoena).   

b. If the PHO determines that the defense-requested evidence is relevant, not cumulative, and necessary, and the trial counsel refuses to seek a pre-referral investigative subpoena, the PHO must include a written statement from the trial counsel explaining the reasons for the refusal in the PHO’s report.

6. Production of privileged matters not permitted.  RCM 405(h)(3)(A)(iii), 405(h)(3)(B)(iv):  The PHO “may not order the production of any privileged matters; however, when a party offers evidence that an opposing party claims is privileged, the [PHO] may rule on whether a privilege applies.” 

VIII. Procedure for Conducting the Hearing

A. General procedure.

1. RCM 405 provides detailed guidance on how to conduct the preliminary hearing.  Normally, the procedures in DA Pam 27-17 that are not inconsistent with Article 32, UCMJ or RCM 405 will also be followed.  In addition to these, the convening authority is authorized to prescribe specific procedures for conducting the preliminary hearing.  RCM 405(c); United States v. Bramel, 32 M.J. 3 (C.M.A. 1990) (appointing authority’s instructions to IO to place a partition between the child witness and the accused okay).

a. The preliminary hearing begins with the PHO informing the accused of his/her rights under RCM 405(f). 

b. Trial counsel will then present the government evidence and government witnesses.  Defense counsel and the PHO may examine the government witnesses.

c. Defense counsel will then present defense evidence and defense witnesses.  Trial counsel and the PHO may examine the defense witnesses.

d. Witnesses may testify in person, by video teleconference, telephone, or similar remote means.  All testimony must be under oath, except the accused may make an unsworn statement.  The PHO can consider only testimony that is relevant to the purpose of the preliminary hearing. 

e. The PHO may consider other evidence besides testimony, including statements, tangible evidence, etc., that the PHO determines to be reliable.  The PHO must preclude any evidence not relevant to the purpose of the preliminary hearing.

f. The PHO may provide the parties an opportunity call additional witnesses or present additional evidence, however, the PHO may not call witnesses sua sponte or consider any evidence not offered by the parties during the hearing or in the parties’ RCM 405(k) submissions.  RCM 405(j). 

2. The convening authority should require expeditious proceedings and set a deadline for receipt of the report of the preliminary hearing.  The convening authority should also specify the extent of the PHO’s authority to grant excludable delay pursuant to RCM 707.  RCM 707(c) discussion; United States v. Thompson, 46 M.J. 472 (1997) (defense requested delays that were granted by the Article 32 investigating officer and later ratified by the convening authority after the fact were properly excluded from the speedy trial calculations under RCM 707). 

B. Military Rules of Evidence.  RCM 405(i)(1):  MREs do not apply other than:

1. MRE 301 (self-incrimination), 302 (statements from mental examination), 303 (degrading questions), and 305 (rights warning);

2. MRE 412(a) as supplemented by RCM 405(i)(2) (rape shield);

3. Section V (privileges), except the following DO NOT apply:  MRE 505(f)-(h) and (j) (dealing with classified information), MRE 506(f)-(h), (j), (k), and (m) (dealing with other government information); and MRE 514(d)(6) (victim advocate communications).

4. The PHO shall assume the role of the “military judge” as referenced in the MREs listed above.  The PHO will have the same authority as a military judge to exclude evidence from the hearing, and will follow the procedures as stated in those rules.  Unless good cause is shown, evidence offered in violation of the procedural provisions of the rules above must be excluded from the preliminary hearing. 

a. The PHO “may not order the production of any privileged matters; however, when a party offers evidence that an opposing party claims is privileged, the [PHO] may rule on whether a privilege applies.”  RCM 405(h)(3)(A)(iii), 405(h)(3)(B)(iv).

5. Application of MRE 412 to preliminary hearings.  RCM 405(i)(2).

a. Prior to the amendments to RCM 405 pursuant to the Military Justice Act of 2016, the PHO was directed to apply the provisions of MRE 412 itself during preliminary hearings.  The amended RCM 405 now contains detailed guidance in the RCM itself for applying the general rule of privilege set forth in MRE 412(a). 

b. In any proceeding involving an alleged sexual offense, evidence offered to prove a victim engaged in other sexual behavior and evidence offered to prove a victim’s sexual predisposition is not admissible at the preliminary hearing unless:

1) The evidence is:

(a) Evidence of specific instances of a victim’s sexual behavior offered to prove that someone other than the accused was the source of semen, injury, or other physical evidence; OR

(b) Evidence of specific instances of a victim’s sexual behavior with the accused offered by the accused to prove consent or offered by the prosecution; AND

2) The evidence is relevant, not cumulative, and necessary to a determination of the purposes of the preliminary hearing IAW RCM 405(a).  RCM 405(i)(2)(A).

c. Procedure to determine admissibility.  RCM 405(i)(2)(B):

1) Notice:  the party intending to offer the evidence subject to MRE 412(a) must give written notice via a motion no later than 5 days before the preliminary hearing begins describing the evidence and stating why the evidence is admissible.  The PHO can provide a different deadline, but notice must be given before the hearing begins.

2) The opposing party can respond to the motion providing notice with their own written motion. 

3) The trial counsel must serve the motion and any responses to the victim and the victim’s counsel, or to the victim’s guardian or representative.

4) The PHO has the following options with respect to the motion:

(a) Deny the motion; or

(b) Conduct a hearing to determine admissibility of the evidence.  The hearing must be closed and should be conducted at the end of the preliminary hearing after all other evidence offered has been admitted.  The parties may call witnesses and offer evidence at the closed hearing, and the victim must be afforded reasonable opportunity to attend and be heard.  The motions, evidence, and record of the admissibility hearing must be sealed in accordance with RCM 1113.  RCM 405(i)(2)(C)-(D).

C. Victim rights at the preliminary hearing.  RCM 405(g):

1. Victim for these purposes is any person who has suffered direct physical, emotional, or pecuniary harm from the alleged misconduct at issue.   

2. Rights include:

a. Reasonable, accurate, and timely notice of the preliminary hearing.

b. Reasonable right to confer with the trial counsel.

c. Right not to be excluded from any public portion of the preliminary hearing.  PHO can exclude a victim based on clear and convincing evidence that the victim’s testimony would be materially altered if the victim observed the proceedings, if governmental privilege is invoked, or if evidence is offered under MRE 412, MRE 513, or MRE 514 regarding another victim.

d. Named victim is not required to testify.  RCM 405(h)(2)(A)(iii).

e. A named victim can request access to, or a copy of, the recording of the proceedings, and the trial counsel must provide the recording or a transcript (with sealed material redacted) after dismissal or adjournment of the court-martial.  RCM 405(j)(5). 

D. Open vs. closed hearing.  RCM 405(j)(3):  Ordinarily, preliminary hearings should be open to the public.  The proceedings may be closed to the public by the convening authority or PHO under limited circumstances where:  (1) there is an overriding interest that outweighs the value of an open preliminary hearing; (2) any closure is narrowly tailored to protect the overriding interest; (3) the convening authority or PHO concludes that no lesser methods short of closing the preliminary hearing can be used to protect the overriding interest; and (4) specific findings of fact in writing are made to support the closure (which are included in the report).

1. ABC, Inc, v. Powell, 47 M.J. 363 (C.A.A.F. 1997):  SPCMCA’s reasons supporting decision to close entire investigation (maintain integrity of military justice system, prevent dissemination of evidence that might not be admissible at trial, and shield alleged victims from possible news reports about anticipated attempts to delve into each woman’s sexual history) were insufficient and closure of the entire proceedings was overly broad.  The CAAF held that the accused has a qualified right to an open Article 32 hearing.

a. Closure determination must be a “‘reasoned,’ not ‘reflexive’” one, made on a “case-by-case, witness-by-witness, and circumstance-by-circumstance basis whether closure in a case in necessary to protect the welfare of a victim. . . .” 

b. The press enjoys the same right to a public Article 32 and has standing to complain if access is denied.

2. United States v. Davis, 62 M.J. 645 (A.F. Ct. Crim. App. 2006), aff’d, 64 M.J. 445 (C.A.A.F. 2007):  The IO closed the Article 32 hearing during testimony of two victims of alleged sexual assault “due to the sensitive and potentially embarrassing nature of the testimony and in order to encourage complete testimony about the alleged sexual offenses.”  The IO failed to speak to either witness and no evidence existed that the witnesses were reluctant to testify in a public hearing.  The MJ held that the IO’s decision was not supported by the evidence and was error, but the MJ declined to fashion any relief because he could determine no “articulable harm” to the accused.  The AFCCA agreed that the IO erred in closing the hearing but held that once the MJ found that the accused’s rights to a public hearing were violated, “the [MJ]—without a showing of prejudice or articulable harm—. . . should have dismissed the affected charges to allow for reinvestigation under Article 32.”  The AFCCA, however, did not reverse or order a new Article 32 hearing because the closure did not adversely affect the accused’s rights at trial so setting aside his conviction was not warranted.  On appeal, CAAF affirmed, clarifying that, on appeal, Article 32 issues will be reviewed under Article 59(a).  CAAF noted that the AFCCA was correct in holding that the MJ erred by requiring a showing of prejudice before providing a remedy.

3. San Antonio Express-News v. Morrow, 44 M.J. 706 (A.F. Ct. Crim. App. 1996):  Court denied newspaper’s extraordinary writ to reverse by mandamus IO’s decision to close hearing, over defense objection, concerning O-4 charged with murder of 11-year old girl.  While Article 32 investigations are presumptively public hearings, the IO did not abuse discretion, and articulated good reasons supporting her action (citing a need to protect against the dissemination of information that might not be admissible in court; to prevent against contamination of a potential jury pool; to maintain a dignified, orderly, and thorough hearing; and to encourage the complete candor of witnesses called to testify).  The court reasoned that RCM 405(h)(3) is unclear how competing interests are to be weighed in deciding whether to close a hearing, or whether the entire hearing could be closed, so mandamus was not appropriate for this area of law that is “developing” and “subject to differing interpretations.”

4. Denver Post Corp. v. United States, 2005 CCA LEXIS 550 (Army Ct. Crim. App. 2005):  The IO conducted preliminary matters in an open forum and then closed the proceeding to hear testimony from a security specialist regarding classified information.  After receiving the security specialist’s testimony, the IO closed the entire hearing.  Additional witnesses testified to non-classified information in a closed session later in the day.  Denver Post filed a writ demanding a stay of the proceeding until ACCA could rule on the hearing’s closure.  ACCA granted the stay and ruled the IO erred in closing the entire proceeding.  Closing a proceeding is only warranted when a “compelling showing [exists] that such was necessary to prevent the disclosure of classified information.” An IO may only close a proceeding “after consideration of the specific substance of the testimony of individual witnesses expected by the parties and a factual determination that all of the expected testimony of such a witness will reveal classified information.” 

E. Supplementary information submitted after closure of the preliminary hearing.  RCM 405(k): 

1. Parties can submit supplementary material after closure of the hearing that the submitting party “deems relevant to the convening authority’s disposition of the charges and specifications.” 

2. Supplementary information can be submitted to the PHO (with copies provided to the other parties) by the trial counsel, defense counsel, or a named victim within 24 hours of closure of the hearing. 

a. The defense counsel can submit to the PHO (with copies provided to the trial counsel) additional material rebutting any supplementary information submitted by the trial counsel or a named victim within 5 days of closure of the hearing.  RCM 405(k)(2). 

3. Upon receipt of supplementary information, the PHO must take the following actions (RCM 405(k)(3)):

a. Examine the supplementary information and seal any matters the PHO deems privileged or otherwise not subject to disclosure.

b. Provide a written summary and analysis of supplementary information that is not sealed and is relevant to disposition to be included in the report of preliminary hearing.

c. Provide a written analysis of supplementary information that is sealed and is relevant to disposition to be included in the report of preliminary hearing.  The analysis itself should also be sealed.  The PHO should generally describe the sealed materials and detail the basis for sealing them in a separate cover sheet accompanying the sealed materials. 

IX. Report of PRELIMINARY HEARING

A. PHO must submit a timely written report of the preliminary hearing to the convening authority. The report is advisory and does not bind the SJA or the convening authority.  RCM 405(l)(1). 

B. The report of preliminary hearing must include the following (RCM 405(l)(2)):

1. Names and organizations/address of trial counsel and defense counsel, and a statement why any counsel were absent during the preliminary hearing;

2. An audio recording of the preliminary hearing;

3. The PHO’s “reasoning and conclusions with respect to the issues for determination [under RCM 405(a)]…, including a summary of relevant witness testimony and documentary evidence presented at the hearing and any observations concerning the testimony of witnesses and the availability and admissibility of evidence at trial” for each specification;

4. A statement as to whether any essential witness may not be available for court-martial;

5. An explanation of any delays in conducting the preliminary hearing;

6. Notation if the trial counsel refused to issue a pre-referral investigative subpoena that was directed by the PHO and the trial counsel’s statement of reasons for the refusal;

7. Recommended modifications to the form of the charges;

8. A statement regarding whether the PHO considered any uncharged offenses, and the PHO’s reasoning and conclusions regarding whether there is probable cause to believe the accused committed the uncharged offense, and whether the convening authority would have court-martial jurisdiction over the offense if charged;

9. Notation of any objections that a party requested be included in the PHO’s report;

10. The PHO’s recommendation as to disposition of the charges, including consideration of all evidence admitted during the preliminary hearing and matters submitted under RCM 405(k); and

11. The PHO’s summary and analysis of materials submitted pursuant to RCM 405(k). 

C. Form of the report.  The report will consist of at least the DD Form 457 (Preliminary Hearing Officer’s Report), the PHO’s reasoning and analysis pursuant to RCM 405(l)(2)(C), and the recording of the preliminary hearing.  Other elements listed above will also be required based on the particular facts of each case. 

D. Distribution of the report.  RCM 405(l)(4):    

1. PHO will provide the preliminary hearing report to the convening authority.  The convening authority will provide a copy of the report to the accused. 

a. Defense counsel must make objections to the report to the convening authority via the PHO.  These are due within 5 days after receiving the report.  RCM 405(l)(5). 

2. PHO can order exhibits, proceedings, or other materials sealed in accordance with RCM 1113.  RCM 405(j)(8).  Matters that the PHO should consider sealing include:  testimony taken during closed proceedings, contraband (e.g., child pornography), and privileged material offered into evidence but not considered.

X. Treatment of Defects

A. Failure to follow the requirements of Article 32 does not constitute jurisdictional error.  UCMJ art. 32(g). 

B. Objections must be timely made.  Defects observed during the preliminary hearing or defects in the preliminary hearing report must be made to the convening authority through the PHO via an objection in a timely manner (within 5 days of receipt of the report).  RCM 405(l)(5).  Failure to make a timely objection under RCM 405 to the conduct of the preliminary hearing or to the report constitutes forfeiture of the objection.  The convening authority who directed the preliminary hearing, a superior convening authority, or the military judge may grant relief from the forfeiture for good cause shown.  RCM 405(m). 

C. Motion for appropriate relief to the military judge based on defects in the preliminary hearing must be made before a plea is entered.  RCM 905(b)(1).  Failure to raise the matter before pleas forfeits the error.  RCM 905(e)(1).

1. Types of defects.

a. Preliminary hearing improperly convened.  United States v. Donaldson, 49 C.M.R. 542 (C.M.A. 1975):  Accused is denied a substantial pretrial right when the Article 32 investigation is ordered by an officer who lacks proper authority. 

b. Partiality of the PHO.  United States v. Cunningham, 30 C.M.R. 402 (C.M.A. 1961):  Partiality of the PHO will be tested for prejudice. 

c. Denial of right to counsel/ineffective assistance of counsel:

1) The right to the assistance of counsel of one’s own choice during the pretrial investigation is a substantial pretrial right of the accused.  United States v. Maness, 48 C.M.R. 512 (C.M.A. 1974); United States v. Miro, 22 M.J. 509 (A.F.C.M.R. 1986) (“An unprepared counsel is tantamount to no counsel at all.”). 

2) Improper denial of counsel and denial of effective assistance of counsel at the Article 32 should be tested for prejudice.  United States v. Davis, 20 M.J. 61 (C.M.A. 1985); United States v. Freedman, 23 M.J. 820 (N.M.C.M.R. 1987).

2. Remedy.

a. Ordinarily the remedy is a continuance to re-open the preliminary hearing.  RCM 906(b)(3) discussion.

b. If the charges have already been referred, re-referral is not required following a re-opening of the preliminary hearing; affirmance of the prior referral is sufficient.  United States v. Clark, 11 M.J. 179 (C.M.A. 1981).

D. During post-trial appeal, relief for a defective preliminary hearing may only be granted where an accused can show violation of his substantial rights.  UCMJ art. 59 (“A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.”).  

1. United States v. Von Bergen, 67 M.J. 290 (C.A.A.F. 2009) (“Article 32, UCMJ, errors are tested on direct review for prejudice as defined by Article 59(a).”):  It may be very difficult to show prejudice.  Von Bergen noted military courts have a long history of deciding that the Article 32 proceedings are “superseded” by the trial procedures, so the accused’s rights at an Article 32 “merge into his rights at trial.”  Because these rights merge, the court held the accused suffered no prejudice, even though he was erroneously denied his right to an Article 32 hearing.

2. United States v. Allen, 5 C.M.A. 626 (1955) (quoting testimony of Mr. Larkin at Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services, 81st Cong., 1st Sess. 998 (1949)):  “[I]n the event that a pretrial investigation, less complete than is provided here, is held and thereafter at the trial full and complete evidence is presented which establishes beyond a reasonable doubt the guilt of the accused, there doesn’t seem to be any reason … that the case should be set aside if lack of full compliance doesn’t materially prejudice his substantial rights ….  Now, if it has, that is and should be grounds for a reversal of a verdict of guilty.” 

3. United States v. Mickel, 26 C.M.R. 104 (C.M.A. 1958):  “[I]f an accused is deprived of a substantial pretrial right on a timely objection, he is entitled to judicial enforcement of his right, without regard to whether such enforcement will benefit him at trial.  At that stage of the proceedings, he is perhaps the best judge of the benefits he can obtain from the pretrial right.  Once the case comes to trial on the merits, the pretrial proceedings are superseded by the procedures at trial; the rights accorded to the accused at the pretrial stage merge into his rights at trial.  If there is no timely objection to the pretrial proceedings or no indication that these proceedings adversely affected the accused’s rights at the trial, there is no good reason in law or logic to set aside his conviction.”

4. United States v. Davis, 64 M.J. 445 (C.A.A.F. 2007):  Case involves closing an Article 32 and clarifies the standard for appellate review. “The time for correction of [procedural errors in the Article 32] is when the military judge can fashion an appropriate remedy . . . before it infects the trial . . . .”  CAAF explains that, on appeal, the standard of review of Article 32 procedural errors is under Article 59(a), UCMJ, which states, “A finding or sentence of court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.”

5. United States v. Johnson, 53 M.J. 459 (C.A.A.F. 2000):  While an accused may have standing regarding illegally produced third party witnesses at an Article 32, court held no standing here. Standing may be obtained when the accused has sufficiently important, legally-cognizable interests in the materials or testimony sought.  In Johnson, Accused's wife at Article 32 investigation was secured by means of an illegally ordered German subpoena, and court held accused lacked standing to object where: appellant was neither deprived of a right nor hindered in presenting his case; appellant and his counsel attended the Article 32; appellant had full notice of the witnesses against him and did not object to his wife’s testimony at the Article 32; appellant had the opportunity to confront his wife and did cross-examine her at the Article 32; and the testimony of the wife at the Article 32 investigation was reliable

 

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