Georgia Criminal Law Blog

A U.S. Marine from the metropolitan Atlanta Area has been in our local news lately because he has been charged by the military with the murder in connection with a military operation in Iraq in which he was involved. He is currently at a Marine base in Hawaii where his court martial and related proceedings are being held. One recent news story related to what is called an “Article 32 Hearing.” As it’s name suggests, Article 32 hearings are held pursuant to Article 32 of the Uniform Code of Military Justice (UCMJ) and are a rough corollary to the Grand Jury process in state systems and the civilian federal system.

As a former U.S. Navy Judge Advocate and former Assistant District Attorney in Georgia, I have real world experience with both processes and felt like an article comparing and contrasting each would be appropriate and timely here.

Both the Article 32 hearing and the Grand Jury inquire are designed, in theory, to serve as a pre-trial determination of probable cause. Without getting too deep, the concept of “probable cause” is a term-of-art for legal professionals and cannot be easily described. Nonetheless, as I used to teach my students, “probable cause” is a level of proof or evidence that may lead a reasonable person to conclude that a crime probably has been committed and the accused probably committed it.

The 5th Amendment to the U.S. Constitution states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

UCMJ Article 32(a) states as follows:
No charge or specification may be referred to a general court-martial for trial until a through and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and recommendation as to the disposition which should be made of the case in the interest of justice and discipline.

Very different from each other, huh? On it’s face the 5th Amendment makes the right to grand jury review inapplicable to the military. So congress stepped in and filled that due process void with UCMJ Article 32.

I can say from my own personal experience that, in practice the two processes are very different from one another in real life as well. The Grand Jury hearing (in state practice) may last for less than 5 minutes in routine cases and the defendant is typically NOT present. In fact, the proceedings are secret and it is a crime to disclose anything said behind those closed doors. An Article 32 Hearing, however, can last for days and is wide open to the public and even the media in many instances. The accused participates with his or her attorney and gets to cross examine witnesses and is given access to documents and other items of evidence. A grand jury is not presided over by anyone (except the forperson who’s authority is quite limited). There is no judge present and the prosecutor and the police witnesses run the show. To the contrary, an Article 32 Hearing is conducted by a fiercely neutral commissioned military officer (frequently a JAG Officer) who follows limited rules of evidence and permits wide latitude on cross-examination of witnesses against the accused.

I like the Article 32 process much better than the Grand Jury. It just feels better to me to keep everything out in the open with an accused having the right to counsel and to participate. Grand Jury indictments handed down in secret have always bothered me because doing business that way can lead to abuse. To illustrate this point, one need look no further than to the prosecutor who got a grand jury to indict those innocent Duke lacrosse players.

For more detail on the Article 32 Hearing, check out:
www.jag.navy.mil/html/NLSOGlakesArticle_32_investigations.htm

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