As we await word whether tomorrow will bring another delay in the Ft. Hood shooting pretrial hearing, South Texas College of Law Professor Geoff Corn, a retired Army JAG who serves on NIMJ’s Board of Advisors, shares his observations of the often-compared Article 32 hearing and the civilian grand jury proceeding, making the persuasive argument there is actually a better analogy:
For as long as I can remember, military legal experts have analogized the Article 32 investigation to a Grand Jury. This is all over the news today as the MAJ Hasan 32 kicks off. Why do we continue to make this false analogy? From my perspective, the only real similarity is that technically both the Grand Jury and the Article 32 hearing are investigations. However, beyond this, I believe the much more appropriate analogy is to a civilian preliminary hearing.
A prelim, like an Article 32, is an adversarial proceeding where the accused is represented by counsel. Like the 32, there is one decision-maker who determines whether the evidence establishes probable cause to continue the process towards trial. Of course, unlike the 32 the prelim does not result in a mere recommendation, but as a practical matter both the investigating officer and a judge at a prelim are performing the same function.
A prelim and a 32 share other similarities that are not shared by a 32 and a Grand Jury. They are both open proceedings; they are both adversarial; they both result preservation of testimony that can be used at trial consistently with the Confrontation Clause; they both serve a secondary purpose of discovery; they both include a right to counsel for the accused; and perhaps most importantly, they both involve an accused. A Grand Jury does not investigate an accused – it investigates a target. Finally, a Grand Jury can return an indictment for anyone (not merely the target). A prelim, like a 32, has a distinctly limited function – assess the evidence in support of the charge against the accused.
It is true, of course, that a 32 is required before any case can be referred to a general court-martial, whereas there is no requirement to conduct a prelim if the accused has already been indicted. But I think this is a minor deviation, and does not justify the continued analogy to the Grand Jury.
So, with the 32 front and center in the public eye this week, I propose we start comparing apples to apples.