Article 32 Discovery

No you can’t get discovery at an Article 32 preliminary hearing anymore.

Prior to 2019 the Article 32 was considered a discovery mechanism for the defense to make timely informed decisions and was to be a “bulwark against baseless charges.”

Congress changed the rules. Now, the hearing is intended to do no more than allow the prosecution to present enough evidence to establish probable cause–just like civilian cases.

Unfortunately, the rules have not changed completely to be the same as in federal district court. In district court, if the magistrate judge does not find probable cause the case (or charge) is dismissed. That does not mean the prosecutor cannot try again if they later find new and additional evidence. But the process is a protection against false allegations or allegations for which there is insufficient evidence to get a conviction. The probable cause standard is quite low.

However, unlike a district court prosecution, you are not fully protected against baseless charges. The commander still is allowed to refer charges to trial even if there is no probable cause for a particular specification. As your military defense counsel we do litigate this as a denial of constitutional due process. We also have suggested changes to the Department of Defense, Joint Service Committee on Military Justice, to make this process more fair. At the moment we are uncertain if the recommended changes will be adopted.

So, the joke among many is that any federal prosecutor can indict a ham sandwich; now the military joke seems to be that you don’t need the ham.

Yes you can get some discovery at a “new” Article 32 preliminary hearing but it is very limited. In January 2015 Article 32 was changed to make it easier to refer charges to trial and prevent the defense interviewing under oath a complaining witness the a military sexual assault. The changes seem intended to shield witnesses from being challenged and make it hard to defend against false allegations.

No longer a bulwark against baseless charges, courtesy of Congress, you can still get discovery at the “new” Article 32, it’s just not as much. As civilian military defense counsel we are constantly exploring ways to get early discovery in a case so we can make the best decisions and recommendations for you. Pretrial discovery is one of the core competencies your military defense lawyer should have.

You can help here by doing your assigned homework. We ask you to provide details of any allegation, the names and contact information of any witnesses, and gather evidence you may have access to. This way we start to develop your defense. We have found there is much information available on the internet and social media that can be useful as we move forward in your defense.