TRIAL STAGE: Pretrial: Investigations (Article 32)

2008 (September Term)

United States v. Von Bergen, 67 M.J. 290 (the military judge abused his discretion in denying appellant an Article 32, UCMJ, investigation on rehearing, where appellant had waived such an investigation in a pretrial agreement when he originally pleaded guilty to possessing but had pleaded not guilty at the rehearing, withdrawn from the pretrial agreement, and requested an investigation; appellant’s original plea was improvident as a matter of law, which had the effect of canceling the pretrial agreement according to its terms, and the effect of the rehearing and appellant’s subsequent withdrawal from the agreement was to place the parties in their pretrial status quo ante). 


(the effect of ordering a rehearing is to place the United States and the accused in the same position as they were at the beginning of the original trial; as one of the first steps in a general court-martial proceeding is an Article 32, UCMJ, investigation, unless the accused waives it, one of the first steps at a rehearing in a general court-martial proceeding should likewise be an Article 32, UCMJ, investigation if not previously afforded to the accused).




United States v. Davis, 64 M.J. 445 (a formal pretrial investigation is a predicate to the referral of charges to a general court-martial unless the accused waives the pretrial proceeding; the procedures for an Article 32 hearing include representation of the accused by counsel, the right to present evidence, and the right to call and cross-examine witnesses). 


(a military accused is entitled to a public Article 32 hearing absent cause shown that outweighs the value of openness).


(RCM 405(h)(3) vests the authority to close an Article 32 hearing in the commander who ordered the investigation; a command decision to close an Article 32 hearing must be made on a case-by-case, witness-by-witness, and circumstance-by-circumstance basis). 


(a military judge errs by requiring a showing of prejudice as a precondition to providing a remedy for a violation of an accused’s rights at an Article 32 proceeding). 


(as a general matter, an accused is required to identify and object to any errors in the Article 32 proceeding at the outset of the court-martial, prior to trial on the merits; when an accused makes an objection at that stage, the impact of an Article 32 violation on the trial is likely to be speculative at best; the time for correction of such an error is when the military judge can fashion an appropriate remedy under RCM 906(b)(3) before it infects the trial, not after the members, witnesses, and parties have borne the burden of trial proceedings; in the event that an accused disagrees with the military judge’s ruling, the accused may file a petition for extraordinary relief to address immediately the Article 32 error). 


(although the Article 32 investigation is an important element of the military justice process, it is not part of the court-martial; an Article 32 investigation takes place before the convening authority’s decision to refer a case for trial by general court-martial; a case may be referred to trial by special court-martial without conducting an Article 32 investigation, even though a special court-martial can result in the stigma of a punitive discharge and confinement for up to one year; in light of those considerations, the Article 32 investigation is not so integral to a fair trial that an error in the proceeding necessarily falls within the narrow class of defects treated by the Supreme Court as structural error subject to reversal without testing for prejudice). 



United States v. Garcia, 59 MJ 447 (Article 32 requires a thorough and impartial investigation before any charges or specifications may be referred to a general court-martial; at the investigation, the accused has the right to be represented by counsel, to cross-examine witnesses, and to present anything he may desire in his own behalf; the Article 32 investigation operates as a discovery proceeding for the accused and stands as a bulwark against baseless charges).


(pursuant to RCM 405(k), the accused may waive an Article 32 investigation; the precise form or procedure for a waiver is not specified, and whether the accused’s right to an Article 32 investigation is personal to the accused is an issue of first impression at this Court; we recognize that as to many decisions pertaining to the conduct of the trial [e.g., what evidentiary objections to raise or what agreements to conclude regarding the admission of evidence], consent or waiver by counsel is binding, whether or not the client has personally consented or explicitly agreed to waive a matter; however, the decision whether to waive a pretrial investigation is unlike the many routine decisions a lawyer must make as the trial progresses; it is, rather, a decision fundamentally impacting a substantial pretrial right of the accused; we agree that the right to an Article 32 investigation is a personal right, and in most instances cannot be waived without a defendant’s informed consent).


United States v. Dowty, 60 MJ 163 (ordinarily, an objection to the method of selection of the triers of the facts must be made before trial).


United States v. Stirewalt, 60 MJ 297 (RCM 405(d)(1) unambiguously states that an investigating officer is disqualified to act later in the same case in any other capacity; a violation of RCM 405(d)(1), however, must be measured for prejudice).



United States v. Johnson, 53 MJ 459 (where an accused has sufficiently important, legally-cognizable interests in the materials or testimony sought, and thereby has standing, there is no reason why a third-party challenge either to a subpoena duces tecum or a subpoena ad testificandum could not be raised during an Article 32 investigation).

(standing to object to a subpoena duces tecum or a subpoena ad testificandum during an Article 32 investigation exists when the actions of the government impact upon the reliability of the evidence presented against an accused at trial, e.g., coerced confessions, unlawful command influence, interference with the rights of confrontation or cross-examination, and interference with the right to present evidence).

(where testimony of accused’s wife at Article 32 investigation was secured by means of an illegally ordered German subpoena, accused lacked standing to object where: appellant was neither deprived of a right nor hindered in presenting his case; appellant and his counsel attended the Article 32; appellant had full notice of the witnesses against him and did not object to his wife’s testimony at the Article 32; appellant had the opportunity to confront his wife and did cross-examine her at the Article 32; and the testimony of the wife at the Article 32 investigation was reliable).


United States v. Holt
, 52 MJ 173 (investigating officer who provided information to trial counsel after case had been referred to trial may have created appearance of impropriety by providing trial counsel with what was, in effect, a supplementary report that was neither transmitted to the commander who ordered the investigation nor served on the accused).

(investigating officer’s improper post-referral communication with trial counsel may involve two issues and two forms of relief:  (1) if the communication supports a claim of bias in the conduct of the Article 32 investigation, the case can be remanded for an new investigation based on a denial of the right to an impartial Article 32 investigation; or, (2) if the claim indicates that the investigating officer served in a prohibited role, such as trial counsel, an appellant may request a new trial if there is prejudicial error).

(action of investigating officer, after referral, in providing suggestion to trial counsel as to possibility of using an individual as a potential witness and to test certain evidence was not prejudicial where:  (1) investigating officer did not exercise any prosecutorial discretion or make any tactical or strategic trial decisions; (2) actions taken by trial counsel as a result of this communication were known to the defense at time of trial; (3) information concerning the role of the investigating officer would have made no substantive difference in any ruling on legal issues related to evidence arising from that communication; and, (4) post-trial defense submissions which noted the communication from the investigating officer did not assail the fairness of either the Article 32 investigation or the trial proceedings).

Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site