An article published in the recent edition of the Air Force Law Review considers the new Article 32 (analyzed in this post) and concludes that the new version is “not revolutionary and will not significantly alter the nature of the Article 32 process.” Major Christopher J. Goewert and Captain Nichole M.Torres, USAF, Old wine into new bottles: The Article 32 process after the National Defense Authorization Act of 2014, 72 A.F. L. Rev. 231, 247 (2015) (complete volume available here) (direct link to article).
The authors explain that “when the Article 32 investigation was conceived in 1949, it was intended to be a probable cause hearing and not a sweeping mini-trial.” Goewert and Torres, supra, at 236. Accordingly,
Amending the language of Article 32 from “investigation” to “preliminary hearing” will not change the complexion of Article 32 hearings in any substantive form. Although the text of Article 32 has superficially changed, the two most critical questions that were addressed at the Article 32 investigation, that of probable cause and what disposition should be made of the case, remain in the new Article 32 language.
Id. at 238. Significantly, the authors note that “while the language of the old Article 32 does not explicitly state that the preliminary investigation was meant to be used as a discovery tool, discovery has always been part of its purpose.” Id. at 239. They also note that “the role of defense counsel in seeking discovery at the preliminary investigation is now expressly limited.” Id. at 241. Nonetheless:
the process for conducting the Article 32 hearing described in R.C.M. 405 is similar to the process of a federal preliminary hearing, which means discovery might still be a practical benefit derived from cross-examining witnesses and reviewing evidence. . . . Although defense counsel may be restricted from going on a “fishing expedition” at the Article 32 preliminary hearing, similar to a federal preliminary hearing, it will still offer some collateral discovery benefits to the accused.
Id. at 244. Finally, considering what types of evidence the preliminary hearing officer may receive and consider under the new statute and rules, the authors write that:
R.C.M. 306 provides an extensive list of factors for the convening authority to consider. Since the Article 32 hearing officer has as one of his/her responsibilities to make a recommendation as to disposition to the convening authority, the hearing officer should consider evidence presented by either party that addresses any of these factors. These factors allow the defense to present evidence and cross-examine witnesses to an extent beyond that of a pure probable cause determination.
Id. at 246.