An Article 32 investigation is intended to establish if “probable-cause” exists before a charge can be referred to a court-martial. The “old” Article 32 hearing was an adversarial hearing where the accused could produce evidence, be represented by counsel, could remain silent, give an unsworn statement, or testify, and counsel could cross-examine witnesses.

Some of the benefits for the accused and military defense counsel included:

1. Early Case-theory testing
   By exposing factual weaknesses at Article 32, defense counsel gains insight into the government’s trial strategy and can refine their own from the outset.
2. Leverage for pretrial negotiations
   A strong Article 32 showing may induce the convening authority to offer a pretrial agreement or to dismiss marginal charges.
3. Preservation of key issues
   Objections or challenges raised at Article 32 (e.g., to evidence or jurisdiction) may bolster later motions or appellate claims.
4. Resource for trial preparation
   Transcripts, exhibits, and witness lists generated at Article 32 form a ready investigative roadmap for the defense team.

That investigation benefited the prosecution as well as the defense. Sadly, those who decided to change Article 32 failed to understand the basics and how the prosecution team (and alleged victims) could benefit from it. Congress enacted the change to Article 32 because of political pressure.

Sure enough, what many of us military defense counsel said has come true.

The Military Justice Review Panel, established by Congress in Article 146 reported in 2024 how useless Article 32 has become.[1] [2]

The 2023 MJRP Interim Assessment of Preliminary Hearings and Prosecution Standards, concluded that Article 32 hearings are currently of limited utility to the prosecution, defense, and referral authority. On the related issue of the standard by which a convening authority or special trial counsel should refer a case to trial, the Panel recommended adopting a standard for prosecution consistent with the United States Attorney General’s Justice Manual.

The MJRP also assessed and recommended that Congress amend Article 32 with a package of reforms that would “(1) allow for a reasonable level of discovery at the preliminary hearing while retaining victim protections, (2) require a certification process for the preliminary hearing officer, and (3) preclude referral if the preliminary hearing officer determines that a charge lacks probable cause, subject to a right of appeal to a military judge and without prejudice to the government referring the charge anew.”

So how does all of this compare?

1. Historical “Full-Inquiry” Article 32 (Pre-FY14/NDAA 2014 – and thus pre-2019)

Before Congress’s sweeping reforms in the National Defense Authorization Act for FY 2014, Article 32 hearings functioned as evidence-rich, adversarial investigations akin to civilian preliminary hearings or grand juries. Under the Manual for Courts-Martial:

• Broad discovery and fact-finding: The hearing officer could compel production of documents and live testimony from both prosecution and defense witnesses, and the parties could conduct “searching investigations” into every contested fact JAG Legal Center and School.
• Robust adversarial testing: Both counsel examined witnesses under oath, argued evidentiary questions under the Military Rules of Evidence, and developed the theory of the case in real time Dacipad.
• Screening function: A no-probable-cause finding by the preliminary hearing officer would almost always prevent referral to a general court-martial, protecting the accused from baseless charges JAG Legal Center and School.

2. Modern “Probable-Cause-Only” Article 32 (Post-FY14/NDAA 2014 – and post-2019)
Since the FY 2014 amendments took effect (and remain largely in force today), Article 32 hearings have been narrowed to a paper-based probable-cause check:

• Elimination of discovery: Congress expressly removed “discovery” as a purpose of the hearing, limiting evidence to what the government chooses to present by summary or affidavit MJRP.
• Advisory, non-binding recommendations: Even if the preliminary hearing officer finds no probable cause, the convening authority may still refer charges, rendering the hearing’s factual findings largely moot MJRP.
• Decline of live testimony: Empirical data show that live witness appearances plummeted from nearly 98 % of hearings in FY 2014 to about 36 % by FY 2018, as summaries replaced in-person examination JAG Legal Center and School.

3. Core Deficiencies of the Current Article 32 Regime

1. Erodes Fairness and Fundamental Rights
   Without meaningful discovery or live testimony, defense counsel cannot test the government’s case before referral, undermining both due-process and the accused’s “bulwark” against unfounded charges DacipadJAG Legal Center and School.
2. Fails to Screen Baseless Charges
   Advisory findings mean that specifications lacking probable cause routinely proceed to trial, clogging dockets and subjecting servicemembers to unwarranted stress and expense MJRP.
   Reduces Utility to Convening Authorities
3. Referral authorities receive little more than a one-page recommendation, often based on untested summaries, hampering informed disposition decisions MJRP.
4. Creates Systemic Inefficiency
   The “paper drill” format shifts fact-finding into the trial phase, prompting last-minute motions, evidentiary hearings, and potential appellate issues—delaying justice and increasing costs

[1] As of the end of April 2025, it appears the Secretary of Defense has put the Congressionally mandated MJRP in hiatus.

[2] 21 June 2023 Report; 8 December 2023 Report.

He had been convicted and sentenced to 14 years of confinement.

We raised many issues during his appeal. The Army Court found a serious error by the military judge in denying the defense presenting evidence of other sexual acts of the alleged victim. This issue usually comes up in a Military Rule of Evidence 412 motion. Here, the military judge botched it.

Basically the rule prohibits witnesses or cross-examination about prior sexual behavior of the alleged victim. However, there are exceptions: (1) the evidence shows someone else did it or caused physical injuries. For example, consensual sex–any sexual penetration–can cause physical injury to the vagina, so the alleged victim having had sex with another person the day before the alleged assault could be admissible as an exception; (2) because the conduct is what is called res gestae (all part of the same acts or events); (3) when the Constitution requires it. For example, to present evidence of mistake of fact as to consent, or significant attacks on the credibility of the alleged victim. As military defense lawyers, we have a lot of experience litigating these issues and also have experts who can assist in presenting the case.

The Army court touched on other issues in connection with how the prosecutor and special victim’s counsel conducted the case.

Because the error was so prejudicial, the charges have been dismissed. The next step is whether the prosecution will appeal or whether there will be a new trial.

Retrials are difficult. As military defense counsel, we have done retrials. All the prior discovery, evidence, and witnesses have to be gathered up so that both sides can prepare for trial. Because retrials are difficult, the Army has created a specialized organization at Fort Leavenworth to work on these cases.

Fort Hood shooting suspect Maj. Nidal Hasan’s attorney tells News 8 he will ask a military judge Thursday morning to close the upcoming Article 32 Hearing for his client to the public and press. “I think it’s necessary to ensure he can eventually get a fair trial at Fort Hood,” (Ret.) Col. John Galligan, Hasan’s civilian attorney, told News 8 Wednesday. “We need to make sure his Sixth Amendment rights are not jeopardized.” The Article 32 Hearing is the military equivalent to a probable cause hearing in the civilian justice system.

Thanks WFAA.com for not referring to the Article 32, UCMJ, hearing as equivalent to a grand jury.

Next Thursday Maj. Hasan’s pretrial investigation, Article 32 hearing will reconvene. According to officials, the session is called a Status Conference Hearing and will address additional preliminary measures. Officials say no witness testimony will be heard during this portion of the hearing. The Article 32 hearing will be held on October 12.

Twelve American soldiers face trial over an secret “kill team” that allegedly blew up and shot Afghan civilians at random and collected their fingers as trophies. Five of the soldiers are charged with murdering three Afghan men who were allegedly killed for sport in separate attacks this year. Seven other soldiers are accused of covering up the killings as well as a violent assault on a new recruit who exposed the murders when he reported other abuses, including members of the unit smoking hashish stolen from civilians. Following the arrest of the original five accused in June, seven other soldiers were charged last month with attempting to cover up the killings, blocking the investigation and violent assault on the soldier who reported the smoking of hashish. The 74 charges against the 12 soldiers include accusations of illegal drug and alcohol use.

KLEWTv reports:

At least two of the five Army soldiers charged in the deaths of three Afghan civilians had kept body parts taken from Afghan corpses, according to new documents released by the Army on Wednesday.

Lawyers for the driver of a Coast Guard boat that killed an 8-year-old San Diego boy in December said the Coast Guard is prosecuting Petty Officer 3rd Class Paul Ramos in order to duck responsibility, and a lawsuit. “The family is rightly suing the Coast Guard,” said Navy Cmdr. Brian Koshulsky, one of Ramos’ military attorneys. “It’s in the Coast Guard’s interest to blame my client.” Seen through Ramos’ eyes, the Dec. 20 collision in San Diego Bay that killed Anthony DeWeese is a tragic accident caused by poor training and supervision by the Coast Guard and visibility design flaws in the 33-foot patrol vessel being used — all brought out by the harbor’s holiday lighting during a Christmas boat parade.

In regard to the boat design issue here is an NBC San Diego piece.

ccording to pool reports, when the boats’ engines run at 3,000 to 4,000 RPM the bows of the boats dip up. In that position, the driver and crew can not effectively see over the front of the bow, according to defense attorneys. Lawyers for the defendants said this problem is widely known among Coast Guard boatswains who serve on these small boats.

Here is a report by SDO which has some snippets of witness testimony. Witnesses appear to be alleging the Coast Guard boat was speeding, whereas the driver is claiming a speed of about 18MPH.

SDO also notes that:

The hearing will likely offer the most details yet on the mishap. The San Diego Harbor Police has refused to release its findings, and the Coast Guard and National Transportation Safety Board have yet to complete their investigations.

3. Declination to Produce or Disclose. a. If any information responsive to this request is not produced because of a claim of privilege, identify each item that would fall within the request and/or information affected, the basis of the privilege, and the current location of each document or information (i.e. a Vaughn Index, see Vaughn v. Rosen, 157 U.S. App. D.C. 340; 484 F.2d 820 (DC Cir. 1973)). Such material should be submitted, with notice to the defense, to the investigating officer or military judge for in camera review. See e.g. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). b. If any information responsive to this request is not produced because it is unavailable: state with particularity the following. (1) Item sought. (2) Date requested from person or agency believed to be in possession. (3) Full name, address, telephone number, of each person contacted in order to obtain production. (4) Reason the item is unavailable. (5) Steps taken to locate and obtain the information.

You know how under Article 36, UCMJ, practice in courts-martial is supposed to be a close to that of the federal district courts as possible.

[Rules] which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.

So for some strange reason I adopted the Vaughn “notice,” and expanded it a little. Suggestions to improve always welcome.

Well, suffice it to say I’ve never had a trial counsel comply with my Vaughn notice request. Oftentimes it’s the standard, “denied.” It seems to me the Vaughn demand sorta encompasses some of the self-executing trial counsel obligations under Brady, Giglio, and Kyles. You know, those items of discovery that the prosecution is supposed to actually look for and to provide regardless of R.C.M. 701. (It is also my position that the trial counsel actually does have to go and look for those items. And how many times are they required to actually look? How many military judge ask, “did you look?”) Well on the discovery issue it seems to me that the trial counsel could do themselves and the military judge a favor and respond to the Vaughn request. Because if the issue gets litigated, isn’t the military judge going to question, or should question, the government along the lines of my Vaughn request?

Anyway, I was encouraged this week. While docketing a case the military judge sua sponte told the trial counsel that any discovery denials should be specific and detailed, none of the usual blanket “denied.” While the military judge did not list the Vaughn factors, my sense is that the military judge was attuned to the concept and may not be satisfied with the standard, “we don’t have it, we haven’t looked, and even if we did you can’t have it,” denial.

So, I am encouraged, albeit in a small way.

Criminal charges ranging from involuntary manslaughter to dereliction of duty have been preferred by the Coast Guard against four boat crewmembers from Coast Guard Station San Diego in connection with a fatal collision between one of the station’s patrol boats and a civilian vessel in San Diego Bay late last year. The charges were brought under the Uniform Code of Military Justice (UCMJ) and are based on information discovered by the Coast Guard investigators looking into the December 20, 2009, collision that resulted in the death of one child and the injury of other passengers on the civilian boat. Rear Admiral Joseph Castillo, commander of the 11th Coast Guard District, is the convening authority in the case.

Navy Times reports the CG boat was:

speeding when it collided with a 26-foot Sea Ray pleasure boat.

The Air Force has moved a step closer to deciding whether to court-martial the Air Force Materiel Command’s former top enlisted man on charges he sexually harassed airmen, misused his authority, and tried to persuade others to assign those women to his area. The investigating officer who heard three days of testimony in May at a hearing for Chief Master Sgt. William C. Gurney at Wright-Patterson Air Force Base has submitted his summary of the testimony and his recommendations to Scott Air Force Base, Ill., which is handling the decision on whether to court-martial Gurney. It could be several weeks before the review of Col. Michael O’Sullivan’s report is done and commanders at Scott Air Force Base render a decision[.]

U.S. Army officials have charged a staff sergeant in the U.S. Army Reserves, a St. Croix native, with the premeditated murder of his supervisor, who was shot multiple times last week at Fort Gillem in Georgia, where the two men were stationed. . . .

A pretrial confinement hearing held Friday determined Valmont will remain in pretrial confinement.

Military officials have charged Staff Sgt. Rashad Valmont with murder in the fatal shooting of Master Sgt. Pedro Mercado at Fort Gillem, U.S. Army spokeswoman Maj. Lenora Hutchinson told the AJC on Tuesday.

The report then goes on to say that:

The charge of premeditated murder was recommended Tuesday by the U.S. Army’s criminal investigations command . . .

So apparently the CID investigation is “complete” (for all that means to those experienced in dealing with CID).

But Lakin said the result “makes it impossible for me to have a fair hearing.” “I cannot even raise the issue of the president’s eligibility, on the grounds that my position has ‘no basis in law,'” he said

He’s getting a “fair” hearing within the rules of R.C.M. 405 and Article 32, UCMJ.

He is wrong that he can’t raise the issue. His defense counsel was in fact invited, “expressly instructed” to do just that – provide a scholarly brief on why the requested information was necessary.

Driscoll then blamed the defense for not giving him what he wanted.

Yes, that’s right, when the defense doesn’t do something they are requested to do, told to do, or ought to do, they can’t complain that the, in this case, IO didn’t give them what they asked for. It is the obligation of the defense counsel, especially when called upon, to ask, be specific, and give a legal and factual reason – a pleading – on why something should be produced. This is done in all courts of law not just LTC Lakin’s Article 32, UCMJ, hearing. This is something that is second nature to trial lawyers. You don’t just make bold bald requests.

“I expressly instructed ‘[y]our submissions, if any, on the subject of lawfulness of orders, derivation of authority, political questions and the like should be sufficiently scholarly to allow me to make an informed determination of relevance of the requested items to the truth of the specifications and charges at issue,” Driscoll wrote.

LTC Lakin’s counsel failed to do what he was requested to do. It is the failure of the defense counsel, not the IO.

“There is no scholarly discussion of what constitutes an illegal order or under what circumstances such an order can be disobeyed or must be disobeyed.”

Note, “the Army” did not refuse the defense requests. The IO did, acting in his role assigned under Article 32, UCMJ, and R.C.M. 405. This is what I would have expected MAJ Kemkes, the military defense counsel to have told LTC Larkin, and by inference, Mr. Jensen.

The written ruling is as expected.

Defense attorneys for Maj. Nidal Malik Hasan, a Fort Hood psychiatrist charged with killing 13 people and wounding 32 others in a mass shooting here last fall, won a four-month delay Tuesday in an evidentiary hearing that could lead to his court-martial.

Sitting in the same courtroom where he oversaw proceedings for two infamous Abu Ghraib defendants, Col. James Pohl ruled in favor of the defense, which said it had not received all the documents it needed – including a ballistic trajectory report now being done by the FBI in Quantico, Va. “We got what we wanted,” said retired Army Col. John P. Galligan, lead counsel for Hasan.

On 26 May 2010, Mr. Galligan, MAJ Hasan’s civilian counsel posted this on his blog.

Today is the deadline, imposed by the Article 32 Investigating Officer, for Army prosecutors to respond to long outstanding Hasan Defense Team discovery requests. As of this posting – after COB at Fort Hood, Texas – no formal response from the prosecutors has been received. And, as readers are aware, the initial Article 32 session is scheduled for just several days hence.

It is not surprising that the neither the prosecution, nor for that matter the IO has responded to production requests under R.C.M. 405(f). This seems par for the course in many Article 32, UCMJ, investigations. Another interesting post is this.

For the past several months, the Hasan Defense Team has actively solicited the appointment and government funding for a mitigation specialist. Every step of the way, US Army prosecutors have resisted our efforts. Because all of the Defense nominees just happened to be licensed attorneys, Army prosecutors argued that we were trying to backdoor the retention of additional civilian counsel. Of course, that argument is ridiculous and overlooks the fact that many experts who also happen to be attorneys are routinely appointed as experts in military courts-martial. Moreover, they have served as expert witnesses for both the defense and the prosecution. And, more significantly, the position of Army prosecutors in the Hasan case is totally at odds with the fact that one of the defense nominees is now serving as a mitigation specialist in an ongoing court-martial at Fort Lewis (United States v. Davila). Apparently, the US Army does not speak or act with one voice on this important issue. 11 June 2010: the Article 32, UCMJ, hearing ICO LTC Lakin is set to begin at WRAMC. LTC Lakin is not in pretrial confinement but charges have been preferred. Therefore the R.C.M. 707 speedy trial requirement applies.

I agree with Mr. Galligan about experts who also have legal training. I have had cases, and currently have an Army case, in which one of our experts – a pathologist — is also a lawyer.

Post hearing: An Article 32, UCMJ, investigating officer is required to provide a written recommendation on charges and forum prior to further disciplinary actions or case disposition. A DD Form 457 with additional pages and attachments is used.

The Staff Judge Advocate is also required to provide a recommendation in accordance with Article 34, UCMJ.

The Army guide on the conduct of an Article 32, UCMJ, hearing is DA Pam. 27-17.

But even before the gavel comes down, two legal battles are underway to try to force the Army and the Department of Justice to turn over documents dealing with Hasan’s past, particularly his personnel files, his mental health records and other documents that might suggest the government should have known he was a dangerously troubled soldier. The Senate Homeland Security and Governmental Affairs Committee has taken the unusual step of issuing subpoenas demanding the records as part of its investigation into the shooting spree. What they want to know, said committee Chairman Joe Lieberman (I-Conn.), is “why was he not stopped before he took 13 American lives, and how can we prevent such a tragedy from happening again?” At the same time, Hasan’s defense attorney, John P. Galligan, a retired Army colonel from Belton, Texas, said he has been deprived of the records despite repeated requests. Without the material, he said, it will be very difficult to defend Hasan at the hearing.

R.C.M. 405(f)(10) seems to provide for Mr. Galligan being given what he’s been asking for.

LTC Lakin is alleged to have committed offenses in violation of the UCMJ. The conduct alleged cuts to the very heart of military requirements of obedience to orders, fidelity to the oath of office, and the need for seniors to set the example. I’m reliably informed that in addition to formal counselings every effort was made pre-preferral to convince LTC Lakin to obey his orders. In the face of such contumacious behavior the Army had no choice but to prefer charges. Enlisted personnel are regularly disciplined, court-martialed, and jailed for the same or similar conduct and who have better reasons for their AWOL. Such a stunning lack of officership cannot pass unnoticed or undisciplined. Neither President Obama nor his administration has any role in this case at all. Should the administration try to get involved they should be told – politely – to butt out.

The report links to a letter to MAJ Kemkes (a great TDS lawyer from Fort Myer) granting a delay of the hearing from 6 May to 11 June.

LTC Driscoll, a lawyer, is the IO. The use of non-lawyers as IO is pretty standard within the Army. Thanx CAAFLog for the update.

The attorney representing the accused gunman in the 2009 Fort Hood shootings says the Army is holding back important evidence in the upcoming Article 32 hearing. Attorney John Galligan says he needs court documents, including Major Nidal Hasan’s FBI files, to gain more insight into his mental state in the months leading up to the shooting. The Article 32 hearing is scheduled for June 1 at Fort Hood. Galligan says the prosecution will call more than 70 witnesses including victims and first responders.

I found a humorous note in the article. The writer points out a typo in the charge sheet.

“in support of Operation Enduring Freedom with the 32nd Calvary (sic) Regiment, 101st Airborne”

The writer correctly ‘sics’ the typo. In doing so the writer perhaps highlights what might be LTC Lakin’s calvary.