A Cornprehenawe Guide to the Military Pretrial Investigation

Extract

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A Cornprehenawe Guide to the Military Pretrial Investigation

I. INTRODUCTION

No specification or charge may be referred to a general courtmartial unless there has been a thorough and impartial pretriai investigation conducted in substantial compliance with Article 32 of the UniformCode of Military Justice (UCMJ) The UCMJ specifically atates that failure to comply with Article 32 is not jurisdictional error;% a defective Article 32 investigation. however, may deprive the accused of a substan. nal pretrial righta and warrant appropriate relief at tnal.'

Commentators and courts frequently compare the Article 32 mvesti. gation to the federal prelimmary examination and the federal grand

'Judge Adrocare Ganersrr Corps, rmBd States Army In~trut~~r.

Criminal La* Dwmm

The Judge Advocate General's School US &mi. 1983 to present Formerly assigned a i Senior Defense Counsel, Hanau. Federal Repubhe of Germany, 1979 to 1981. and as T'rlal Counsel 3d Armored D i w m Hanau. 1978 to 1919 B A , Umfed States Mihtari Acad-emy 1973, J D , Unneriiiy of hrgmia Lau School 1978 Completed 31st Judge Advo. a t e Offrcer GraduafD Course. 1983 .4uthor of The SJA 08 the Carnmandsrb iaw)si A RroiirficPiaposaI.TheArm) Lau)er, Aug 1983,af 14 CIzenfRijuq AGuide farMali tar, Defmm Counsd The Army Lau~er. Sspt 1983. at 13, The Randolph-ShepDmd Act A Trap for the Cnuory Judge Adrocate, The Arm? Laa?er. Feb 1984. at 21Member of the bars of the Commonwealth af Yirpmia. the United Stem Court of Appeals forthefavrthClrcu~t,andrheSupremeCaurtaf fheUnitedStstei ThiiartielewiUsppear as B chapter m DA Pam 27.173 Trial Procedure. aehedvled m be printed m September 1986'Uniform Code of Ildltar) Justice art 32ia1, IU US C 5 8321al Olereinafter crfed ai UCMJ). Manual for Courts-Msrtal. United States. 1984, Rule for Courts-Martla1 40611)@emmiter cned as R C hl I

'UCMJ mf 3Xd) provides that "[tpe requrements of thib art& are binding on ail per-~mssdminiiienne thischapter bur fsilvretofoUow themdosand conatitvteIllna&cf~onal

NILITARY LAW REVIEW [Vol 111

lury Although the Article 32 investigation is not exactly equivalent to either federal proceeding, it has elements of both and derve~ as the sol. dier's counterpart in guaranteeing that the accused will not be tried on baseless charges.#

The Court of Appeals for the District of Columbia Circuit has empha. sized the significance of the pretrial mvestigation.' In Talbot i. Toth'the accused wan charged with murder and WBS placed in pretrial confinement. He petitioned for a writ of habeas corpus arguing that court-martial procedures denied him due process. He specifically contended that the lack of a grand jury inquiry and indictment constituted a demal of procedural due process. Recognizing that the fifth amendment exempts ''cases arising in the land or naval forces" from the requirement ai indictment by grand jury, the court of appeals went on to add that:

These proviaons of the Uniform Code [Articles 32 and 341 seem to afford an accused as great protection by way of preliminary inquiry into probable came a8 do requirements for grand jury inquiry and Indictment.. . . Thus the basic pur-pose of a hearing preliminary to tnal 1s being met by a method designed pursuant to constitutional prawaans, and the method meets all elements essential to due process

The purpose of this article 1s to provide B comprehensme guide to the law applicable to the Article 32 pretrial investigation and the Article 34 pretrial advice.

'See,ep.UnitadStsiesv Nxhals.3CMA 119.23CMR 343~196711Soanerarlatar thê I ~ t s r y aemees must reahie that this pmess IS the milifary counterpart of B eiwlian p~elmmary hearing and ~t LJ ludicis1 I" nstnre and scape 1 MseDonsld I, Hodaon, 18C M A 582, 42 C.MR 184 1197oJ me Article 32 lnvestigsfion parmkes of the nature bath of B p~ehmmary judlcial hearm# and of the proceedings ai B %rand iury See oisoMurphy The Formal Pietrial Investigation 12 Md L Rev 8 11961J, Moyer, Pmesdural Rights of Ihr Mliiary Accused Adranragra Over D Ciiilinn Ddondanl. 22 Me L Rer

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Wmfed States v Samuels. 10 C M A 206. 27 C M R 280 11959) flt 18 aorrarenf thst the

Talbot L Toth, 215 F>d 22 (D C Cir 19541 'Id'Id at 28

19861 PRETRIAL INVESTIGATION PART ONE-THE ARTICLE 32 PRETRIAL.

INVESTIGATION II. THE PURPOSE OF THE INVESTIGATION A. STATUTORY

The three statutorily recognized purposes of the Article 32 pretrial investigation are to (1) inquire into the truth af the mattern set forth m the charges: (2) consider the form of the charges; and (3) obtain e.n impartial recommendation as to the disposition that should be made of the case lo

Although the recommendations of the investigating officer are only advisory," the investigation provides the convening authority with a screening device to identify and dismiss specifications which are not supported by available evidence or which are otherwise legally deficient The convening authonty...

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