Why Skipping or Rethinking Your Article 32 Hearing Could Protect Your Court Martial Defense
Facing a court martial is one of the most challenging experiences a service member can endure. The military justice system operates differently from civilian courts, and understanding its nuances is crucial to mounting a strong defense. One critical stage in this process is the Article 32 hearing, the military equivalent of a preliminary hearing. However, recent changes have dramatically shifted the landscape, making the traditional approach to Article 32 hearings potentially risky for accused service members.
Understanding the Article 32 Hearing
Article 32 of the Uniform Code of Military Justice (UCMJ) requires an investigation to determine whether there is enough evidence to proceed with a court martial. Historically, this hearing provided an opportunity for the accused and their defense counsel to confront witnesses, challenge evidence, and potentially get charges reduced or dismissed before trial.
In theory, this makes the Article 32 hearing a valuable tool for the defense. However, recent changes to military policies now allow victims of crimes—including those involving serious offenses like assault or sexual assault—to decline to testify at these hearings. This shift has significant implications for how defense attorneys should approach the Article 32 process.
Key Changes: Victims No Longer Required to Testify
Previously, victims were generally expected to testify during Article 32 hearings, giving defense attorneys a chance to cross-examine them and assess the strength of the prosecution’s case early on. Now, victims have the right to refuse to testify. This change means that many victims choose to remain silent during Article 32 hearings, limiting the defense’s ability to challenge the prosecution’s case at this stage.
As Michael Waddington, a seasoned court martial attorney, explains, victims are increasingly opting not to engage with defense counsel during these hearings. Instead, they communicate primarily with the prosecution and wait to see how the defense presents its case before deciding how to proceed with charges. This tactic allows prosecutors to refine charges and strengthen their case after observing the defense’s strategy at the Article 32 hearing.
How This Shift Can Hurt the Accused
The defense’s traditional advantage at Article 32 hearings has diminished. With victims refusing to testify and prosecutors adjusting charges based on the defense’s arguments, accused service members may face stronger, more strategically crafted cases at trial. This evolution means that aggressively challenging charges at the Article 32 hearing may backfire, giving prosecutors insight into the defense’s tactics without the benefit of victim testimony to expose weaknesses.
Waddington advises that, in many situations, it may be tactically wiser for the accused to either skip the Article 32 hearing altogether or have minimal defense participation. Instead of attempting to dismantle the prosecution’s case early on when victims are silent, the defense can focus resources on preparing for the actual court martial, where the rules of evidence and trial are more favorable to the accused.
Strategic Considerations: To Attend or Not to Attend?
Deciding whether to attend or actively participate in an Article 32 hearing is no longer a straightforward choice. It requires careful evaluation of case specifics, evidence strength, and the likelihood of success in getting charges reduced or dismissed early. An experienced military defense attorney can assess these factors and recommend the best course of action.
In some cases, if the evidence is weak or procedural errors exist, pushing hard at the Article 32 hearing may still be advantageous. In others, a low-profile strategy that limits early disclosure of defense tactics could preserve options for trial and reduce the risk of the prosecution adapting charges post-hearing.
Contextualizing Article 32 Within Military Justice
It’s important to understand the Article 32 hearing within the broader military justice system. There are three types of courts-martial:
- Summary Courts-Martial: These are the lowest level and handle minor offenses, with limited punishments and no civilian equivalent.
- Special Courts-Martial: Intermediate level courts that can impose confinement of up to one year, bad conduct discharges, and other penalties. They include a military judge, prosecutor, defense counsel, and panel members.
- General Courts-Martial: The highest level with the authority to impose the most severe punishments, including the death penalty for certain offenses. They also feature a military judge, prosecutor, defense counsel, and at least five panel members.
The outcome of the Article 32 hearing influences whether a case advances to one of these courts-martial, making it a critical juncture in the military justice process.
Conclusion: The Importance of Expert Legal Guidance
The evolving nature of the Article 32 hearing underscores the need for expert legal advice when facing court martial proceedings. The old playbook of aggressively challenging charges during the Article 32 may no longer apply in the same way. Instead, a nuanced, case-by-case approach that considers recent policy changes, victim participation, and prosecution tactics is essential.
If you or someone you know is facing an Article 32 hearing or court martial, consulting with an experienced military defense attorney can make the difference between a strategic defense and an avoidable disadvantage. Understanding these complexities and adapting to changes in military law is vital to protecting your rights and your future.
For more information or assistance, consider reaching out to military law experts such as Michael Waddington, who specialize in court martial defense and can guide you through this challenging process.
References:
- UCMJ Defense
- Michael Waddington Avvo Profile
- Michael Waddington Wikipedia
- Military Attorney Sexual Assault Defense