This is part four of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

Section 1702(a) of the NDAA rewrites Article 32 of the UCMJ. The changes aren’t effective until one year after enactment, but they eliminate the century-old requirement of a “thorough and impartial investigation” of charges before trial, and the similarly ancient guarantee that an accused can present to the investigator anything he wishes in his own defense.

Paragraph 76 of the 1918 version of the Manual for Courts-Martial (link) required an investigation for any charge forwarded past the summary court-martial level, and explicitly guaranteed “the accused an opportunity to make any statement, offer any evidence, or present any matter in extenuation that he may desire to have considered in connection with the accusation against him.” This guarantee was enacted into Article 70 of the Articles of War in 1920 (link), along with the specific requirement that the investigation be “thorough and impartial.” And this early requirement for a pretrial investigation was considered by the Supreme Court in Humphrey v. Smith, 336 U.S. 695 (1949), where a divided Court determined that it was “important,” but not jurisdictional.

When the UCMJ was enacted in 1950, Article 32 incorporated both the requirement of a “thorough and impartial investigation” and the right of an accused “to present anything he may desire in his own behalf,” along with making the process “binding” but not jurisdictional. The scope of the investigation included, but notably was not limited to, “inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.”

This language was left untouched for more than 60 years, but the revision contained in Section 1702(a) of the FY14 NDAA will, when effective, eliminate it entirely. Beginning on December 27, 2014, there will be no more pretrial investigations.

Instead, there will be “preliminary hearings,” with specific limitations:

(2) The purpose of the preliminary hearing shall be limited to the following:
(A) Determining whether there is probable cause to believe an offense has been committed and the accused committed the offense.
(B) Determining whether the convening authority has court-martial jurisdiction over the offense and the accused.
(C) Considering the form of charges.
(D) Recommending the disposition that should be made of the case.

(emphasis added). Moreover, the accused may no longer “present anything he may desire.” Rather, the future Article 32(d) states:

(2) The accused may cross-examine witnesses who testify at the preliminary hearing and present additional evidence in defense and mitigation, relevant to the limited purposes of the hearing, as provided for in paragraph (4) and subsection (a)(2).

(4) The presentation of evidence and examination (including cross-examination) of witnesses at a preliminary hearing shall be limited to the matters relevant to the limited purposes of the hearing, as provided in subsection (a)(2).

(emphases added). Additionally, a “victim” (defined in part as someone who “is named in one of the specifications”) will not be required to testify at the hearing. But the hearing will be recorded, and the victim “may request the recording and shall have access to the recording as prescribed by the Manual for Courts-Martial.”

The wisdom of the future rule is debatable, and there’s reason to believe that even Congress doesn’t quite understand what it’s done. For instance, describing this provision to the United States Senate on December 9, 2013, Senator Carl Levin (D-MI), said (link to transcript) that it will “make the Article 32 process more like a grand jury proceeding.”

But it will do nothing of the sort. A federal grand jury is both “grand,” consisting of at least 16 people, and a “jury,” chosen at random from the community. In contrast, both the current and the future versions of Article 32 require a hearing conducted by only one officer, and that officer is appointed by the commander responsible for the prosecution. Article 32 proceedings are also open to the public and the press, while grand juries are protected by secrecy rules that preserve the independence of their investigative function. And the victim who will be allowed to refuse to participate in an Article 32 proceeding could never do so when served with a grand jury subpoena.

As mentioned above, the future Article 32 isn’t effective until one year after enactment, so there’s plenty of time for further examination. But two other provisions in the NDAA that can impact an Article 32 proceeding are effective immediately. They are the requirement for review of decisions not to refer sex-related offenses to trial (§1744), and the sense of Congress provisions (§1752 and §1753).

In Section 1744 of the bill, Congress mandates:

IN GENERAL- The Secretary of Defense shall require the Secretaries of the military departments to provide for review of decisions not to refer charges for trial by court-martial in cases where a sex-related offense has been alleged by a victim of the alleged offense.

This review is required for charges of attempted or completed rape (Art. 120(a)), sexual assault (Art. 120(b)), or forcible sodomy (Art. 125). Additional requirements on the nature of the review are established in the legislation, but the offense-specific limitation adds an interesting twist. On its face, the review only applies to preferred charges not referred for trial. So, prosecutorial overreaching at the charging stage to prefer one of these sex-related offenses will add significant bureaucracy if the charge is not referred to trial. However, prosecutorial restraint at the charging stage, coupled with an aggressive presentation at the Article 32 stage (where uncharged offenses may be considered under both the current and the future rules), will avoid the review requirement if the evidence doesn’t support the uncharged sex-related offense. Whether military prosecutors will recognize the advantages of such restraint remains to be seen.

Congress also passed two “Sense of Congress” provisions, Sections 1752 and 1753. These provisions state Congressional preference for trial by court-martial, rather than nonjudicial punishment or administrative action (including discharge in lieu of trial), in the case of attempted or completed rape (Art. 120(a)), sexual assault (Art. 120(b)), or forcible sodomy (Art. 125). These provisions are also offense-specific, meaning that a prosecutor’s restraint at the beginning of a case can prevent Congressional wrath at the end.

16 Responses to “2013 Changes to the UCMJ – Part 4: Article 32”

  1. RKincaid3 says:

    With this said:

    “But it will do nothing of the sort. A federal grand jury is both “grand,” consisting of at least 16 people, and a “jury,” chosen at random from the community. In contrast, both the current and the future versions of Article 32 require a hearing conducted by only one officer, and that officer is appointed by the commander responsible for the prosecution. Article 32 proceedings are also open to the public and the press, while grand juries are protected by secrecy rules that preserve the independence of their investigative function. And the victim who will be allowed to refuse to participate in an Article 32 proceeding could never do so when served with a grand jury subpoena.”

    Is there really anyone who can reasonably continue to foster the myth that the UCMJ can be considered a true “justice” system?

  2. Lieber says:

    What’s your agenda RKincaid3?  Did you get court-martialed or kicked out of militarycorruption or something?  You say the same thing every single time on every single post here since you first appeared a month or so ago.

  3. mike says:

    I can see the 32s for sexual assault cases in the future. Alleged victim refuses to testify, Gov’t offers “her” statement (typed by CID and not videorecorded), accused stays silent and IO has to make a recommendation (which doesn’t matter b/c it is non-binding and what GCMCA isn’t going to send the case to CM).
    Not a good development in my humble opinion.

  4. RKincaid3 says:

    Ha…just a currently serving JAG with the worst agenda of all…advocating improvement for a principle: the implementation of a true justice system for those who serve…not the continuous practice we have of ignoring the obvious.  Also, I appeared before a month ago…posted on CAAFLOG in mid 2013 as well.

  5. BarneyLW says:

    I’m pretty rusty, but hasn’t a victim always had the right to refuse to testify at a 32?  This would certainly harm the TC’s ability to get past the “reasonable grounds” test that currently exists, of course, and could cause the 32 to be reopened if the MJ/appellate court thought that the inability to examine the victim impaired the defendant’s ability for a full investigation, but can a victim be compelled to testify under today’s rules?
    What would the defense’s mechanism for demanding/requiring that testimony?

  6. RKincaid3 says:

    As for why harp on this subject now–because the time is ripe.  It is THE all-consuming topic, both publically and privately, an both within the JAG community and without.  In private practice back before I became a JAG, I was taught to strike while the iron is hot and I cannot remember a time in my life when it was glowing red hot.  Eventually I will fade away back into private practice, and you won’t have to put up with me anymore. 
    My background is political science, public administration and law.  What else is more important than advocating for a fair system that breeds confidence in, not satisfaction with, the outcome?  If I was still in TDS, I would be harping for my clients on how unfair these changes are to them.  If I were in military justice, I would be harping for my clients on how these changes haven’t gon far enough for victims.  But I am not in either position now, so I get to argue for academicaly principled justice–not outcome-based justice. 
    Why keep harping?  I guess I hope that someday, someone somewhere with the authority to do so will stop and think about what our system does to those who volunteer to serve.  When that individual or those people do stop and think about it–and if they do so without an agenda (such a client’s interest) and with an eye on the distinction between discipline and justice (as all know the difference), they will have to admit, as a matter of intellectual honesty, that we can do better by way of our volunteer warriors. 

  7. TC says:

    I consider the UCMJ a true justice system. If it were up to me, these changes wouldn’t have been made.  But that doesn’t mean the changes have operated to deprive accuseds of due process.  I’ve tried many cases on both sides of the aisle, and in every case, I think the system has been fair.  True, I see members come in with misconceptions about alcohol, consent, etc.  But I also see them listen to the judge’s instructions, and follow those instructions.  I’ve seen members say in voir dire that consent needs to be verbal and explicit, and one drink eliminates the ability to consent.  And I’ve seen those same members come back with acquittals in alcohol-facilitated sex assault cases.  These days I see a lot more members who are fed up with the SAPR training and the focus on sexual assaults.  I rarely, if ever, see a member who seems to think it’s his or her job to use a particular case to deliver the message that sexual assault won’t be tolerated.  Accuseds are represented by competent counsel, they benefit from liberal discovery requirements, and they ultimately receive fair trials.  It’s not a perfect system.  None is.  But it’s just.  It’s frustrating for defense counsel that these changes make it more difficult to defend accuseds.  But that doesn’t make it unjust.  No defense counsel, regardless of the rights provided to an accused, will ever stop complaining that the system is rigged in favor of the government.  That’s the nature of the system.  So of course these changes have defense counsel up in arms.  But if a victim refuses to testify at the 32, the judge will order an interview/depositions.  If VLC insists on being present for the interview, so what?  If trial counsel needs to arrange the interview, so what?  It’s understandable to complain when rights are taken away. But the lack of certain rights doesn’t mean the system is unjust simply because it’s a little tougher on accuseds and defense counsel. 

  8. TCJA says:

    In the past only civilian victims could refuse to testify.  Now this seems to just bring military victims into that fold.

  9. Tami says:

    Military victims do not get to refuse to testify.  If they are outside 100-mile radius of the hearing, then they wouldn’t have to appear in person, but they’d still have to testify over the phone, VTC, etc.
    Civilian victims can refuse to testify, even when local, because there is no subpoena power.  They would be declared “unavailable.”

  10. RKincaid3 says:

    Roger.  Understand your position, but I fear you miss mine.  I don’t not object to the latest congressional tinkering because it is hard on the accused.  And I do not favor the latest congressional tinkering because it is supposed to protect/serve the victims more.  I object to the current system because all of the changes are more of the same–tinkering done in a vacuum by those (Congress) without the requirsite expertise to understand the consequences that lay outside their political goals.  And I object to their apparent inability to recognize that failure since they refuse to do the one thing that I submit would make this discussion largely an academic discussion of the past–eliminate the commander from the judicial process except as a recommending official.
    And because of Congress’s positional authority over all officers in the military, whose favor must be had before those officers are promoted, the system is imbalanced.  It is imbalanced because the opportunity for bias and partiality can be so easily injected into the process at so many places, for so many varied reasons, that the results (whether public criticism of the process, congress or commanders) can be devastating to confidence in the very system itself.  And a sufficient lack of confidence can result in volunteer force with no volunteers.
    True it is that no system is perfect.  I do not want perfection.  But I do want better.  And it cannot be denied that better is possible, to one degree or another.  The question is, how do we make it better systemically, instead of just tinkering?  Other countries have taken the drastic leap of eliminating the commander, and their militaries haven’t suddenly collapsed as undisciplined, unruly miscreants in uniform.  You mentioned your experience with the UCMJ–yes, we all have personal, anecdotal evidence where we have all been surprised by the outcome, or our expectations were supported by the outcome.  But those subjective analyses does not mean the system is fair.  It just means we think it fair because we like the outcome for whatever reason consistent with our respective agendas. 
    In the end, justice is a process, not a result–a point most seem to miss.

  11. Dew_Process says:

    Tell me, how is the cause of “justice” furthered or the I.O. aided in determining the existence of “reasonable cause,” if the purported victim can refuse to testify at an Article 32 “preliminary hearing?”

    Even if one does not completely agree with Wigmore’s assertion that cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth,” one must admit that in the Anglo–American legal system cross-examination is the principal means of undermining the credibility of a witness whose testimony is false or inaccurate.  For that reason, a party has a motive to cross-examine any witness who, in her estimation, is giving false or inaccurate testimony about a fact that is material to the legal question at issue in the proceeding. (footnotes omitted)

    United States v. Salerno, 505 U.S. 317, 328-29 (1992) [Stevens, J., dissenting].

  12. RKincaid3 says:

    I concur.  It is NOT.

  13. John O'Connor says:

    An accused in a court-martial has an opportunity to cross-examine the complainant at trial.
    As for whether precluding a pretrial opportunity to cross-examine the complainant is inconsistent with a “system of justice,” federal courts and most state court systems conclude that it is not.
    And, yes, I get that there are other aspects of the military justice system that differ from state and federal practice, some to the accused’s detriment and some to his benefit.

  14. stewie says:

    I concur that this new system fpr 32s really is just bringing us to where the civilians are RE pre-trial probable cause hearings.  And yes, if it’s good enough for civilians then it’s probably not going to be a due process violation, or remove us from a system of justice.
    I do think though that when you combine it with the extra-ordinary victim protections including the fact that we could have witnesses sitting through and watching a trial and then testifying (witnesses who may not even be examined by DC without TC or other counsel present), it does start to resemble a real problem with the system and with justice.
    I concur, we got some pro-accused stuff, and some pro-government stuff.  However, this latest iteration involves a whole lotta fingers on the government scale, and nothing on the accused scale, and that’s going to lead to a real lack of balance.

  15. Lampwriter says:

    Civilians use ham sandwich indictments and grand juries.  No cross-examination.  The Bill of Rights permits even lower standards for military grand juries than for civilian.  
    Imagine you are tasked to build a justice system from scratch for the military.  Your two main goals are probably some version of fundamental fairness and expediency to accommodate the military mission.  WHY IN THE WORLD would you design a system that requires three trials (Art 32, trial, post-trial) for every general court-martial?  Civilian justice, with just one trial per case, appears blazingly efficient by comparison.  
    The best argument for our current system is that we’ve always done it that way.  

  16. RKincaid3 says:

    Lampwriter:  That is not just the the best argument…it is accompanied by the fact that it is the only argument that breeds comfort since apparently change–or suggesting change, not matter how badly needed–is a bad idea around some parts.