An Article 32 hearing is typically attended by the investigating officer, the accused, the accused’s defense counsel, and a government representative acting as trial counsel. In some cases, a court reporter and interpreter may also be assigned. The hearing is ordinarily open to the public and media, which supports transparency. Witnesses may be called and examined during the hearing. The defense has broad authority to cross-examine witnesses and introduce evidence. The presence of both sides allows for direct and cross-examination, making the hearing an essential procedural check before referring charges to a general court-martial.
No, the full Military Rules of Evidence (MRE) do not apply at Article 32 hearings, except for limited areas such as testimonial privileges, rules on interrogation, and the rape shield provision (MRE 412). This relaxed evidentiary standard allows for a broader presentation of information, but it also means the investigating officer must evaluate the credibility and relevance of evidence carefully. While hearsay and other typically inadmissible items may be considered, the officer must still comment on any critical evidentiary issues in their report. This flexible approach allows for a more complete factual record without the formalities of a trial.
Yes, a court martial attorney plays a central role in representing the accused during an Article 32 hearing. They prepare the defense, advise the client, examine and cross-examine witnesses, and introduce evidence. The hearing provides a valuable opportunity for the defense to assess the government’s case early and shape the strategy for trial. A skilled court martial attorney may use the hearing to uncover flaws in the investigation, challenge probable cause, or negotiate resolution before referral to a general court-martial. The defense attorney’s performance at this stage can significantly affect whether and how the case proceeds.
The investigating officer serves as a neutral fact-finder in an Article 32 hearing. Their role is to oversee the proceeding, gather and evaluate evidence, supervise witness examination, and issue a report with findings and recommendations. They are not judges, but their conclusions carry weight in the commander’s decision-making process. They must be impartial and are expected to consider both sides fairly. Their report addresses whether there is probable cause to support the charges and whether the case should be referred to trial. If the officer lacks legal training, they may seek neutral legal advice but must remain independent from the prosecution and defense.
Yes, the defense has the right to call witnesses and introduce evidence during an Article 32 hearing. This includes both character witnesses and those with direct knowledge of the facts. The defense may also submit documents or physical exhibits. Witnesses called by the defense are first examined by defense counsel, then cross-examined by the government representative. After questioning by both sides, the investigating officer may ask additional questions. This full opportunity for the defense to present its case makes the Article 32 hearing a meaningful opportunity to influence whether a court-martial occurs and to test the strength of the government’s case.
Yes, Article 32 hearings are ordinarily open to the public and media unless specific circumstances warrant closure, such as classified evidence or witness protection concerns. This openness supports accountability and transparency in the military justice system. Media access allows for external scrutiny, especially in high-profile cases. While the public nature of these hearings promotes fairness, it may also create pressure, particularly in sensitive cases like those involving sexual assault. Nevertheless, openness is a key principle unless a compelling reason exists to conduct proceedings in private. The decision to close a hearing is made on a case-by-case basis.
During an Article 32 hearing, the investigating officer reviews both testimonial and non-testimonial evidence. This includes documents, written statements, physical evidence, and witness testimony. While the formal military rules of evidence generally do not apply, certain rules—such as those governing privileges, rape shield protections (MRE 412), and interrogation standards—are enforced. The investigating officer has discretion to consider and comment on evidentiary issues. Testimony is given under oath, and the accused may make an unsworn statement. The process ensures that all relevant material is examined before determining whether the case should proceed to general court-martial.