The National Defense Authorization Act (NDAA) made several key changes to our military justice system. The most notable changes deal with Article 32 preliminary hearings.
Article 32 hearings are preliminary investigative proceedings. The hearings have been compared to civilian grand juries. Prior to the changes that went into effect 20 December 2014, Article 32s were an excellent discovery tool for the defense. Now, such hearings are specifically limited to determining whether there is probable cause to believe an offense was committed, jurisdiction of the offense, proper charges and to recommend a disposition.
In addition to the limitation on the scope of Article 32 hearings, the new changes have also restricted a defense's ability in question alleged victims during the hearing. Under the new rules, any alleged victim, military or civilian, will have the right to decline to testify at the Article 32 hearing. If an alleged victim elects not to testify, there is nothing that the defense can do.
Given the significance of the changes, the Army has issued the following implementation guidance for Article 32 preliminary hearings.