December 26th, 2014 saw a number of new laws come about that brought sweeping changes to certain military justice procedures, specifically Article 32 hearings. The changes were enacted mostly due to a perceived hostile environment in these hearings, especially for cross-examined victims of alleged sexual assault. Seeking to change this, the President and Congress have passed a bill that offers protections for these alleged victims during this trial process, along with other procedural changes that are meant to make Article 32 hearings further emulate a Federal preliminary hearings for civilian cases.
UNDERSTANDING ARTICLE 32 AND "PRELIMINARY HEARING"
The purpose of an Article 32 hearing is to determine whether or not there is probable cause to proceed with a criminal hearing. Trial counsel, or the prosecutors, present whatever evidence investigating officers have collected and call witnesses to the stand. Defense council can then counter evidence and cross-examine witnesses. This process is overseen by a judge or a judge advocate (JA).
The new NDAA has renamed Article 32 hearings " preliminary hearings," its civilian law counterpart. The NDAA states that this is to clarify the purposes of these hearings: to find any probable cause, to determine whether or not there is jurisdiction to try the defendant, and to clarify the specific charges.
Further changes to Article 32 hearing break down into roughly three categories: 1) procedural, 2) victims' rights, and 3) accused's rights. We will explore each here, how they differ from prior procedure, and are pertinent to military criminal defense.
The NDAA has outlined several new changes to procedure for Article 32 hearings. These are in place largely to ensure a sound, impartial atmosphere that neither favors the defendant or trial counsel.
New NDAA procedural changes include:
- The use Judge Advocate (JA) as the hearing officer whenever "practicable"
- The ability for the JA to investigate uncharged misconduct
- The requirement that both trial and defense counsel not outrank the JA who is acting as the hearing officer.
Earlier in 2014, there was also a change requiring Judge Advocates to be investigating officers for Article 32 hearings for crimes dealing with sexual assault. This requirement has been carried over to the preliminary hearing no in effect. There is no exception to this rule. In these cases, the convening authority chooses the JA to oversee this hearing as preliminary hearing officer.
VICTIMS' RIGHTS CHANGES
When Congress saw how some alleged sexual assault victims were handled in Article 32 hearings, they decided to make changes. These newest adjustments aim to create a less hostile environment for these proceedings and give the victim greater power to control their presence on the stand. The law has gone further to state that the alleged victim can decline participation in the hearing.
New NDAA changes concerning victim participation include:
- The right of the alleged victim to obtain a recording of the hearing
- The right of the alleged victim to decline is participating in the hearing
- The barring of evidence of prior sexual behavior or predisposition, unless deemed admissible by a judge (M.R.E. 412)
- The requirement that all alleged victim interview requests go through trial counsel
It should be noted here, on the last point, that defense counsel's request to interview the alleged victim through trial counsel is not for trial counsel's consideration. This is merely procedure and not a request for permission.
There are new restrictions on these interviews, as well. If the alleged victim chooses to participate, the trial counsel, a victim advocate, or special victim counsel must be present for questioning by the defense counsel.
ACCUSED'S RIGHTS CHANGES
Along with bolstered victims' rights, the defendants' rights have also been revised and in fact minimized. Like the other changes, these are made to help ensure a thorough and fair preliminary process.
Accused's rights now include:
- The right to counsel
- The right to be notified of the pursued charges
- The right to cross examine a witness
- The right to present new evidence that has a bearing on probable cause
Not all of these are new, of course, but the key difference here is the right to present evidence. Prior to the NDAA, defendants were only able to respond to evidence and testimony. This could make a huge difference for accused personnel who can produce alibis and other evidence challenging the prosecution before a court martial is needed. However, given the low standard of proof that has to be met to move a case forward to trial, it is unlikely that such a tactic will be used.
"HOW DOES THIS AFFECT MY CASE?"
The new changes put forth by the new National Defense Authorization Act (NDAA) give the appearance that a case will be rubber stamped through the preliminary hearing process given the new changes implemented by congress. It will be interesting to see how this new procedure actually operates. Under the new law, alleged victims are not required to testify at the preliminary hearing. Preliminary hearings are not perceived as a "discovery tool" for the defense. In fact, the new law specifically states that it is not to be used as a "discovery tool." The key to remember with the new hearing is that fact that the preliminary hearing is not an investigative hearing any more. The government's evidence effectively cannot be tested in this venue. It is merely a probable cause hearing leaving many to wonder why the hearing is occurring in the first place. It can be argued that the defense now has the right to present new evidence, but good defense counsel were able to do that through the Article 32 process on cross examination of key government witnesses. It is hard to imagine from a tactical stand-point why a defense counsel would even put on evidence and present a case if the standard of proof for the hearing officer is so low. As this new hearing progress in practice, more articles will follow on its effectiveness for either the government or the defense. The way the law is written, the government prosecutors clearly have an advantage at the outset.
If you have a pending preliminary hearing and want to know how these NDAA changes could affect your particular case, we urge you to call Joseph L. Jordan, Attorney at Law. A knowledgeable and incisive military lawyer is ready with answers.