UCMJ Pretrial Investigations

Is there probable cause

An Article 32, UCMJ, investigation must be conducted if the intent is to prosecute you at general court-martial. You can waive the investigation, but that’s a serious question that needs careful consideration with your military defense lawyer.

Beginning in January 2015, there are to be new procedures which significantly reduce an accused’s ability to defend themselves in the event of a trial. Note however that if you are accused of a crime that is alleged to have happened before January 2015, there are some significant legal and constitutional questions to be evaluated on your behalf with your military defense lawyer.

Prior to January 2015, Article 32, UCMJ, investigations were a very robust formal hearing to determine if there were reasonable grounds to believe a crime was committed and that you committed it, and if so, what to do about it. The Fifth -Amendment constitutional right to grand jury indictment does not apply to the Armed Forces. So, Article 32 of the UCMJ (Section 832 of Title 10, United States Code), was enacted to require a thorough and impartial investigation of charges before they may be referred to a general court-martial.

The investigation was originally intended to have a twofold purpose: a discovery proceeding for the accused and a bulwark against baseless charges. – read, a bulwark against false accusations. United States v Nichols, 8 U.S.C.M.A. 119, 23 C.M.R. 343; cf. Wood v United States, 128 F2d 265 (DC Cir. 1942); United States v Zerbst, 111 F. Supp. 807 (D.C.E.D.S.C. 1953).

That is no longer the case, Congress has seen to that. Congress has taken away what was a significant improvement over civilian law designed to protect military personnel from unlawful command influence and false allegations. It appears you will not have an early right to discovery of the evidence against you and there are greater risks of being blind-sided at trial.

Dealing with these new restrictions is where an experienced military defense lawyer on your side is necessary.

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