What To Expect
During the Article 32 process
Van Ackeren, P.S., represents members of all branches of the military facing court-martial offenses anywhere in the world. As a member of the military, you are subject to the legal process outlined in the Uniform Code of Military Justice (UCMJ). You have the right to retain your own article 32 attorney to advise and represent you throughout the process. Contact our office in Tacoma, Washington, to speak with attorney Cheryl Van Ackeren by phone at 253 442-6700.
What to Expect Throughout the Court-Martial Process
Military courts do not use the same rules as civilian courts and require an attorney who knows the rules. The Rules for Court-Martial (RCMs) and Military Rules of Evidence govern military courts. These rules and procedures apply equally in general and special courts-martials.
Pretrial confinement is not ordered in every case. Your commanding officer may place you in pretrial confinement if there is a reasonable belief you have committed an offense, triable by court-martial, and if the circumstances warrant pretrial confinement. If you are placed in pretrial confinement, you have the right to be informed of the offenses against you, the right to remain silent, the right to retain civilian counsel at no expense to the government, and the right to request assignment of military counsel.
Within 72 hours of being placed in pretrial confinement, your commanding officer must prepare a memorandum stating the reasons for your confinement. This memorandum is forwarded to a review officer, who conducts a hearing to determine whether continued confinement is warranted within 7 days of confinement. This hearing is critical because there is no bail in the military system. If the review officer finds continued confinement is warranted, then you will likely remain in pretrial confinement until the trial is completed.
Article 32 Investigation and Hearing
If the charges against you are serious, (potentially warranting the punishment of imprisonment with an officer, or over one year with an enlisted service member), then your command is likely to refer your charges for a preliminary investigation, under Article 32 of the Uniform Code of Military Justice. This investigation is an Article 32 Investigation. The Article 32 investigation begins when your commanding officer appoints an impartial investigating officer to determine whether reasonable grounds believe:
Whether there is sufficient evidence that an offense occurred and you committed the offense,
Whether the charges against you are in proper form, and
Whether a general court-martial is the appropriate level of disposition for your case.
At the Article 32 hearing, Trial Counsel (prosecution) will present their evidence to the Investigating Officer. Trial Counsel may call witnesses or produce documents. At the conclusion, the investigating officer will decide whether they believe your case should proceed to court-martial, be dismissed, or proceed to a special court martial or summary court martial. After receiving the recommendation, the convening authority will decide if the case proceeds or not. If chosen, the case can proceed to general court-martial within five days.
The military arraignment is very similar to civilian arraignment and occurs after your case is referred to a court-martial. During arraignment, the court will inform you of the charges against you, your rights to counsel, your rights to make pre-trial objections, and your rights to have her case heard by either military judge or members. You will be asked for your plea. Unlike a civilian court, you will normally wait to state your plea to preserve your rights to make pre-trial objections.
The military judge uses pretrial hearings to settle pre-trial objections and procedural issues. During these hearings, the military judge may hear witnesses, take other evidence, and hear arguments. These hearings are held in a military courtroom where a verbatim record is kept for an appeal.
The prosecution may resolve the charges against you by way of a plea agreement any time prior to trial. While the specific terms of these agreements vary, the essential element of the agreement is that for your agreement to plead guilty to some or all of the charges, officer exercising court-martial authority over you agrees to limit your sentence to a fixed punishment. After a pre-trial agreement is entered, you will enter your plea of guilty before a military judge, who will determine if the facts to which you admit constitute violating the charged offenses. After hearing your plea, the military judge will then hear evidence in extenuation and mitigation and evidence in aggravation, and then award a sentence. Military pre-trial agreements, however, differ substantially from civilian pre-trial agreements in one important respect: Unlike a civilian case, the military judge is not informed of the sentence you have agreed on with the prosecution. Instead, the military judge gives what he or she believes is an appropriate sentence in your case. The lower of the two sentences is then the one used in your case.
If you choose not to resolve your case by agreement, then your case will be heard by either a military judge detailed to hear your case, or, if you select, by a court-martial composed of military members.
Unlike civilian courts, your court-martial panel will be selected by the officer exercising court-martial authority from officers under his or her command. If you are enlisted and desire to have enlisted members hear your case, then at least one third of the panel must be enlisted service members. All of the members will be senior to you in rank or grade. To assure the members are not improperly biased in your case, you have the ability, through defense counsel, to question the members regarding any bias they might have, and to request remove any member improperly biased. Besides challenging members for cause, you defense counsel may strike one member for the panel stating no reason to do so. After the court-martial panel is chosen, the findings phase of the trial will begin.
Your trial will begin with opening statements, where both sides will present what they believe the evidence will show. After the opening statements, the government will present their case against you through evidence and witnesses to prove you are guilty. , your defense counsel can cross-examine witnesses and make other challenges to evidence. When the government’s case concludes your defense counsel can either present a case, or remain silent and present no evidence. If you present a case, all evidence and witnesses are subject to cross-examination by the government. At the close of your case, the government will get the chance to do it all over again during rebuttal. The finding phase concludes with closing arguments and jury deliberation. In a military trial, the court-martial panel does not require a unanimous vote. Unlike civilian courts, military courts only require two-thirds of the panel to vote for conviction. If the panel finds you “Not Guilty,” the trial is over and you return to duty. If the panel finds you “Guilty,” the trial will proceed immediately to the sentencing phase.
During the sentencing phase, both sides will once again present evidence, including the impact of the crime, your duty performance history, and extenuating or mitigating circumstances. After the evidence is presented, both sides will present arguments about appropriate sentencing for the offenses. After both sides present their arguments, the court-member panel will deliberate on the appropriate penalty. Finally, if you are sentenced to confinement, the confinement will take place immediately. If you are sentenced to a reduction in rank or forfeiture, the effective date will depend on your branch of service. If you are sentenced to punitive damages, the effective date will occur after post-trial processing and any appeals in the case.