Your attorney's job (depending on the goal of your Article 32) is to do everything he can to make the government actually work. If done effectively, the attorney can make the experience a painful one for the TC, discover a lot about your case, and show the client how the attorney will fight for them at trial.
General Rules that Govern an Article 32
The rules that govern an Article 32 hearing are straightforward. RCM 405, case law, and DA PAM 27-17 are your sources. It is important to note that while the rules of evidence generally do not apply to the Article 32, MRE 301, 302, 303, 305, 412, and the rules of evidence regarding privileges do. I found that just by reading through RCM 405, you will see how an effective advocate can really control the flow of the Article 32.
Preparing for the Article 32
When preparing for the Article 32, I review the sworn statements and other case related documents. After reviewing this documentation, I contact all of the witnesses and start investigating the offense myself. I never rely on CID or MPI to do the work for me. That being said, I always make sure to go look at the CID or MPI file myself. I never rely upon the TC to make an accurate or complete copy of their files. In my experience, they rarely do. You would be surprised how many times I have obtained statements from the CID file that the TC did not have.
Investigating the case means I speak to each of the witnesses. In most instances, I never take a sworn statement from a witness (if a defense counsel does take a sworn statement, it will be discoverable by the government). Instead, I simply take detailed notes. Once I feel that I know what witnesses will be required, I list them on my witness list request. I think it is a good idea to hear from everyone whether they are good or bad for your case. This way, you can lock them into their testimony and better plan for trial. The one exception would be if the government were not aware of the witness.
Questions at the 32
I ask only opened ended and non-leading questions of witnesses. These are questions that start with who, what, where, when, why and how. I also like asking “then what happened next” questions. When I ask these questions, I am trying to flush out as much information as possible. This is important because I never want to be surprised later at the court martial.
This method of asking questions will take care of the “making it painful for the TC” part. When I do this, the TC will have the tendency to want to complain. By thoroughly understanding RCM 405, I am able to put a silencer on the TC's complaints.
Specific Rules of Interest
The first gem to be familiar with is the discussion to RCM 405(a) “The investigation serves as a means of discovery.” I use this rule to argue why I should be given leeway when asking questions or for production of witnesses and/or evidence. This also achieves the second stated purpose of an Article 32 - discovering everything about your case.
Fact Gathering for Motions
RCM 405(e) and the discussion to it supports a client's right to bring in other issues to the Article 32 such as, inquiry into the legality of a search or admissibility of a confession. Recently, I used this provision to dive into a unlawful pretrial punishment issue under Article 13 of the UCMJ. Having the witnesses under oath made make my Article 13 motion that much easier.
Production of Witnesses
The production of witnesses is usually the most hard fought issue at an Article 32. I make sure that the Investigating Officer (IO) knows that they decide witness production not the TC. TCs have a habit of acting as if the denial power is theirs to wield. Generally, if the witness is relevant to the investigation, not cumulative, and reasonably available then they should be produced under RCM 405(g).
Whether a witness is available or not is governed by RCM 405(g)(1)(A) and (g)(2)(A). The rule states that “a witness is ‘reasonably available’ when the witness is located within 100 miles of the situs of the investigation and the significance of the testimony and personal appearance of the witness outweighs the difficulty, expense, delay, and effect on military operations of obtaining the witness’ appearance.”
Normally what this means is the government is going to oppose the production of most out of town witnesses. I always press the IO with the discussion to the rule that talks about using a balancing test when determining availability. Specifically, the rule states that the “more important the testimony of the witness, the greater the difficulty, expense, delay, or effect on military operations must be to permit nonproduction.” The discussion also references the possibility of changing the time and place of the investigation to permit appearance of the witness.
The analysis has one additional wrinkle if the witness is a civilian. If a civilian witness refuses to testify, then under RCM 405(g)(2)(B), they are unavailable because a civilian witness cannot be compelled to attend a pretrial investigation. I always make sure to request that the IO contact the witness themselves to ensure that the witness does not want to attend either in person or by telephone.
What to Do When Production is Denied
If the IO determines that the witness is not available or simply decides they are not relevant, I get them to state on the record the basis for their determination. This can later be the grounds for my request to ask the military judge to reopen the Article 32. Additionally, to preserve the issue, I always object to the IO considering any alternatives to live testimony (unless I decide it is okay to conduct the witness questioning by telephone).
A good defense counsel should understand that RCM 405(g)(4)(A) covers alternatives to testimony when witnesses are not produced. This rule allows your defense counsel to prevent the IO from considering unsworn statements (unless time of war), stipulations of fact or expected testimony, or offers of proof of expected testimony. What this rule means is that CID reports or CID agents testifying what someone else told them is not allowed. I never let the TC get away with just calling the CID or MPI agent! I make them work by holding their feet to the fire on what an IO is allowed to considered.
RCM 405(h)(1)(A) states, “the defense shall be given wide latitude in cross-examining witnesses.” I use this section to argue again, why I should be allowed to ask just about any question I want to ask. I would not be afraid of arguing with the IO on this or any other issue. Their opinion is advisory. Even if they see things your way the government doesn’t have to follow the IO’s recommendation. So use the Article 32 to suit your ends and get the most bang for our buck.
Ruling On Objections
According to RCM 405(h)(2), the IO is not required to rule on objections. When the TC objects to something. I argue to the IO that they are only required to note the objection and not rule on it. In other words, I should be allowed to do whatever it is that I am trying to do.
I also always request that each witness review the summarized version of their Article 32 testimony and sign that they believe it is accurate. DA PAM 27-17 allows for the DC to request this. At trial, being able to say the witness reviewed their summarized transcript and signed it memorializing that it was accurate will help me impeach the witness if they try to change their story during the court-martial.
Finally, having a thorough 32 where you flush out the good and the bad is an excellent way to test the strength of the government's case. By forcing the government to go through a dry run of a contested court martial at the Article 32, I can help you make informed decisions in your case. The whole goal being to achieve the best possible outcome.