The Formal Pretrial Investigation

• Author: by Lieutenant Colonel William A. Murphy
• Pages: 01

1. INTRODUCTION

   The statutory requirement of extensive and formalized pretrial investigation of charges and specifications before reference to trial by courts-martial was first incorporated into the Articles of War in 1920.' That requirement has been the subject of two substantive legislative changes, the second such change resulting from the enactment of the Uniform Code of Military Justice.P A brief study of the two statutory antecedents of Article 32, Uniform Code of Military Justice will be undertaken at B subsequent point in this discussion.8 The current provisions of the Uniform Code of Military Justice ' requires a thorough and impartial investigation prior to referral of charges and specifications to trial by general court-martial.

   Since 1920, the requirement of formal pretrial investigation has undergone substantial and critical scrutiny by civilian, military, judicial and congressional bodies. During the forty-year period involved, no authoritative voice has been heard to denounce the basic precepts of the requirement. There is no question that it is firmly entrenched as an important and substantive ingredient of military due process, the denial of which in any substantial aspect in a particular case can require the reversal of a convictim5

   In November 1964, a paper submitted by Colonel Frederick B. Wiener, Judge Advocate General's Corps, United States Army

   'This article was adapted from a thesis preeented to The Judge Advocate General's School, U. S. Army, Charlottesviile, Virpinia, while the author was B member of the Eighth Advanced Clara. The opiniona and conclusion8 pr6 sented herein are those of the author and do not neeeraariiy represent the view3 of The Judge Advocate General'a School or m y other governmental a J e n e y .

   ** U. S. Marine Corps; Bane Legal Officer, Camp Lejeune. North Carolina; LL.B., 1947, The George Washington University School of Law; membel Ofrhe District of Columbia Bar and the Bars of the United Stater Supreme Court and the U. S. Court of Military Appeals.

   1 Artlele of War lo, 5 1, eh. 2, 41 Stst. 759, SO2 (1820). as amended. See ais0 62 Stat. 604, 633, 639. 642 (1948).

   110 U.S.C. 8 601-934 (1958). The Uniform Code of Military Justice will hereinafter be referred to as the Code and will be cited 8s UCMJ, arta see section 11, int7a.a UCMJ. art. 32.

   SUnited States Y. Parker, 6 USCMA 75, 18 CMR 241 (1956); United Statesv Sehuiier. 6 CSCMA 101.17 CMR 101 (1954).

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   Reserve, to the Judge Advocates As&oeiatmn, questioned whether the Article 32 pretrial investigation really did any good or served any useful purpose and whether the requirement for such invatiEation should not be eliminated completely except where the canrening authority feels that the pretrial statements do not give a sufficiently clear picture of what actually happened.6 The Assaciation's Committee on Xilitarg Justice, composed of seven mdividuals prominent in the field of military law, rendered a report an Colonel Wiener's paper after first receiving and considering comments of the three Judge Advocates General thereon. The follow-ing language from the report as presented to and adopted by the Association on October 16, 1956, is worthy of consideration since it represents the capsule consensus of a representative group ai individuals deeply concerned with military law:

   Your committee feels the pretrial mvestigation serve B usefui purpmei

   indeed the armed Bernice. can point to it with pride 88 exeeeding anycomparable pmteetmn in eivilian life. . , , The Committee deprecates the tendency to formalize pretrial investigation8 to the point where e ~ r m therein could constitute the basis for trial ie~mals. Pretrial inuertiga. cionãhould not be full drew trials in themselves and my further tendency in that direction wdi lead to a movement for theis abolition, ahieh your Committee oppmes.:

   This article is premised on the author's firm conviction that the basic requirement of .q formal pretrial investigation is inherently sound, that it serves a valuable and essential function from the viewpoint of both an accused and the government, and that no substantially different substitute procedure would better lend itself to the satisfactory accomplishment of that function than that re-quired by Article 32. The Article 32 investigation, together with other related statutory rights, is the equivalent, under militarr law of the indictment by grand jury guaranteed by the Constitution and the preliminary proceeding8 thereto provided bs statute.8

   The late Judge Brosman summed up the importance of the procedure as fallows:

   [Ulnder the Uniform Code, the filing, investigation and referral Of general court-martial charges are parts of no game: neither do they mpasition of w c t i m for the violad related procedures constitute the dements of that a,hLhleh is a juristic ersnt of substantial gravity-ne demanding the %,ex). highest sort of profelrianal respondbihty and eon-duet from d l attorneys involred 0

   s Judge Advocate Journal (Bull.

   .~ - Ibid.

   am CCIIJ, arts. 30, 32, 33, and 34. with Fed. R. Cnm. P. 3-9

   ed Stares i.

   Green. 5 USCMA 610. 617. 18 CMR 234, 241 (196G),

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   No. 21. December 1961) 22.

   S

   PRETRIAL INVESTIGATION

   Recent decisions of the United States Court of Military Appeals," interpreting the provisions of Article 32 and the implementing provisions of the Manual for Courts-Martial," have given cause for concern as to how to use the law relating to pretrial investigations correctly.

   A study of the numerow reported decisions involving Article 32 investigations indicates that the conduct of such investigations and the effect of deficiencies therein were subjeeted to a some.what belated consideration by the Court of Military Appeals. The Code proviaion which negates the possibility of pretrial investigation errors affecting juriadiction was probably one factor responsible for the failure of such deficiencies to fall sooner under the court's full scrutiny.12

   That continuing close scrutiny by the Court of Military Appeals can be anticipated is clearly indicated by the following caveat by a member of the Court in a 1957 case:

   One matter which repeatedly sticks its head up in general fOuTt-t.mBrtid recorda in the belief that, becavne strict compliance with Article 32 is not jurisdictional, it may be carried on in a haphaisrd manner or, for all practical puIPoses, utterly abandoned. Sooner or later the militaI7 IOW-ices must realize that this proeens is the military counterpart af a eidlan pieliminary hearing, and it ia judicial in nature and scope.13The lot of a formal pretrial investigating officer in a case involving numerous and complex charges is not an enviable one.This is particularly true if, as is frequently the case, the investigating officer is not a lawyer. The Manual provisions to which a pretrial investigating officer must turn are designed in substantial part to cover the "usual" 0ases.1Ñotoriously absent are detailed instructions designed to guide a formal pretrial inveatigating officer in the unusual case or in an unusual aspect of an otherwise routine case.

   10 See UCIJ, art. 87, which establilher B United States Court of MilitaryAppeals hereinafter referred to BQ the Court of Military Appeals.

   II Manual for Courts-Martial, United Statea, 1851. This Manual was prornulgnted BI Eaeo. Order No. 10214 Februaw 8, 1SX, and will hereinafter be referred to BLI the Manual and will b. cited BP Par. ...., M W , 1951.

   1% UCPfd at. 32(d), provides that tho requirements af Article 32 I'. . . shall be binding'on all persons administering this Code, but the failure to follow them ~n any cam shall not eonititute jurisdictional error."larnited States Y. Nichols, 8 USCMA 119, 128, 23 CMR 843, 862 (18671 (concurring opinion of Latimer. J.1.

   14 par. 3da. hrcx 1961.

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   11. LEGISLATIVE BACKGROUND OF ARTICLE 32 AND ITS ANTECEDENTS

   1. BEFORE ARTICLE OF 1VAR 70

      Before the enactment of Article of War 70, the necessity for a definitive system of pretrial investigation in the military court. martial system had been noted. There were numerous instances in which baseless charges were preferred and actually tried, same-times resulting from jealousies and differences of opinion among high ranking officers, sometimes caused by a failure to properly ascertain the facts.':

      Prior to 1920, under the Army court-martial system, charger could be preferred only by a commissioned officer, upon his awn information or upon complaint of any other person, military or civilian. After preferment the charges were referred to the commander authorized to convene the appropriate court-martial, along with a letter of transmittal explaining the circumstances and recommending trial. The commander examined the charges, usually with the assistance of his staff judge advocate, and decided whether or not the accused should be brought to trial.lB The act of preferring charges, by implication, included the duty to investigate to the extent of insuring that such charges were sup-parted by prima facie evdence.17 There was, however, no requirement of swearing witnesses or of perpetuating or forwarding their testimony or statements.

      On July 14, 1919, the War Department promulgated a change to the then current Manual for Courts-Martial, requiring a more thorough pretrial investigation of charges." That change required that if the officer exercising immediate summary court-martial jurisdiction concluded that charges should be tried by a special or general court-martial, he must, preliminary to taking further action, either investigate the charges himself or have them inveetigated by an officer other than the one preferring the charges. It further requiyed the investigating offleer to afford the accused

      I5 1 Wmthrap, Military Lsa and Precedents 161 (Zd ed. reprint 1920).le Id. at 160-55 aete forth in general terms the preliminary procedure ofpreferring and approving charger prior to 1917. Although there -ere TeVi-%ions of the Articles of Wa?in 1916...