Article 32 Summary

Detailed overview of article 32 summary:

Major point Summary
PRESERVATION AND ADMISSION OF 32 TESTIMONY Article 32 testimony may be admissible as substantive evidence at courts-martial (once the foundational elements for each provision are satisfied):
PARTICIPANTS The appointing authority (AA) must be neutral and detached. An AA who is merely a statutory “accuser” has more options than an AA with an other than official interest in the case. See United States v. Wojciechowski, 19 M.J. 577 (N.M.C.M.R. 1984); McKinney v. Jarvis, 46 M.J. 870 (A. Ct. Crim. App. 1997); see also United States v. Dinges, 49 M.J. 232 (1998). The investigating officer must be “neutral and detached,” and must avoid ex parte contact. The IO is bound by the ethical standards applicable to judges. IO actions that violate the above, upon appropriate motion, must be tested for prejudice to the accused.
PRODUCTION OF WITNESSES RCM405(g)(1)(A)controlswhethertheGov’tmustsecurethe physical presence of witnesses. A witness is reasonably available if within 100 miles of the situs of the investigation and the significance of the testimony and personal appearance outweighs the difficulty, expense, delay, and effect on military operations of obtaining the witnesses’ appearance. Relief from an IO’s misapplication of the balancing test is granted only upon a showing of undue prejudice to the accused. Alternative means of obtaining the testimony (i.e. telephonic direct and cross examination) may negate prejudice. United States v. Marrie, 43 M.J. 35 (1995); United States v. Burfitt, 43 M.J. 815 (A.F. Ct. Crim. App. 1996).
  • Speedy Trial Considerations: RCM 707 appears to vest authority to exclude article 32 delays from the speedy trial clock only in the AA. An IO does not have inherent authority to do the same, but it appears that the AA can delegate this authority to an IO. United States v. Thompson, 46 M.J. 472 (1997).
  • M.R.E. application: Only the rules on privileges, Rape Shield, and self-incrimination apply at the Article 32 investigation. RCM 405(i).
  • Standard for Closure: Whether there is cause that outweighs the value of openness. The cause must be an overriding interest articulated in the findings. This determination must be made on a case-by-case, witness-by-witness basis. See generally ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997); RCM 405(h)(3).
Treatment of Defects and Remedy
  • Objections to the investigation must be made “promptly upon discovery” or are waived, absent good cause. RCM 405(h)(2) and 405(k).
  • Objections to the report must be made “timely” (that is, within five days of service of the report on the accused) or are waived, absent good cause. RCM 405(j)(4) and 405(k).
  • Objections not made prior to entry of plea are waived, absent good cause. (Defects are nonjurisdictional). Objections are made by motion for appropriate relief. RCM 905(b), 905(e) and 906(b)(3).
  • If objection is to failure to produce a witness, accused may need to request deposition of witness in order to preserve objection. United States v. Chuculate, 5 M.J. 143 (C.M.A. 1978).
  • The burden of proof that the Government has not substantially complied with the provisions of Article 32, to the prejudice of the accused, is on the accused by a preponderance of the evidence. RCM 405(a), Discussion; RCMs 905(c)(1) and 905(c)(2).
  • The remedy to correct a defect is normally a continuance to correct the defect. RCM 906(b)(3), Discussion.
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