In the military there are no grand juries. The military’s version of a grand jury hearing or probable cause hearing is called an Article 32 investigation. There are three types of Courts-Martial in the military: Summary, Special and General. Only a General Court-Martial requires an Article 32 Hearing prior to referral of charges.
Rules for Court-Martial (RCM) 405 controls the process and procedures of an Article 32. Article 32 Hearings used to be a valuable opportunity for an accused to learn of the charges against him (or her) and what evidence would be presented at trial. Witnesses were called, examined and cross-examined, and a true evaluation of the merits of the evidence was made. The defense had an idea of what they would face at trial and were provided all the evidence that the prosecution had collected.
Members of Congress have worked hard over the last decade or so to change the Article 32 process. In 2016, a new Manual for Courts-Martial (MCM) was published with significant changes to RCM 405. Article 32 hearings became a rubber stamp for the prosecution. Oftentimes, evidence is no longer provided, witnesses are no longer called and the only thing considered is whether probable cause exists. Probable cause is an incredibly low standard. It is commonly defined as “reasonable grounds,” but it mirrors the federal definition that is “a reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime.” Reasonable essentially means fair. There is no clear test, no percentage “sure” that one must be.
An astonishing, little known fact is that even if the Article 32 hearing officer finds no probable cause exists, the command can still go forward to trial. In an Article 32 hearing an impartial officer, usually a Judge Advocate, is appointed to investigate the charges, evaluate the evidence for probable cause and then make a recommendation to the convening authority regarding whether or not to take the accused to trial.
Most of the Military Rules of Evidence (MREs) do not apply. Without the requirement that witnesses actually testify or even sign sworn statements, there is no way to know what witnesses actually plan to say at trial. When the MREs do not apply, police reports and investigation reports come into evidence, things you do not regularly see at trial because they are barred by hearsay rules. These may have only summarized witness statements, maybe even as little as a sentence or two. These reports also often have assumptions made by police or investigators written as fact, things that would never be uttered in front of a jury.
The changes to RCM 405 also specifically laid out that the Article 32 hearing is not a discovery tool. An important part of discovery is when the prosecution turns over all the evidence they have against an accused to the defense so they can prepare for trial. The prosecution is not allowed to spring any evidence on the defense at trial, it all must be turned over ahead of trial. The rules have long held that all discovery is due at referral of charges, which does occur after the Article 32 hearing. However, common practice before the 2016 changes was to treat the Article 32 hearing as a means of providing all discovery to the defense, making the process more transparent and fair. Why it was specifically written in to the MCM that the Article 32 Hearing is “not a discovery tool” is completely unclear and baffling. Why did the process need to made more murky? What is accomplished by keeping the defense in the dark longer? Now, more than ever, a military member facing a court martial needs an experienced attorney on their side to clear up this added confusion and protect their rights during the entire pre-trial process.