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Your Rights at the Article 32 Hearing

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The Article 32 hearing is a crucial juncture on the way to a general court martial, and what happens there has significant consequences. Fortunately, Article 32 of the Uniform Code of Military Justice (UCMJ) guarantees important rights for the accused.

The Right to be Prepared

To ensure you’ll have the information you need to mount an effective defense at trial, Article 32 requires the government to provide you with the following within five days from setting of the date of the hearing:

▪ statements of witnesses the prosecutor intends to call at the Article 32 hearing

▪ evidence the prosecutor intends to present at the hearing

▪ any other information used in deciding to set the hearing

You can also ask to produce your own witnesses and evidence at the hearing, and request subpoenas for that material as needed. The preliminary hearing officer (PHO) will decide whether to grant or deny these requests.

The Right to Claim Mitigating or Extenuating Circumstances 

One of the PHO’s main objectives at the Article 32 hearing is to determine whether there is probably cause to move forward to the general court martial. This means considering any factors that indicate that the allegations are complicated by extenuating circumstances or that could mitigate the severity of the punishment if you’re convicted.

While Article 32 grants you the right to introduce mitigating or extenuating evidence at the hearing, it doesn’t require you to. If the evidence isn’t strong enough to have the case dismissed, for instance, you might hold off on introducing this evidence until the court martial so as not to give the prosecution more time to adjust its approach.

The Right to Waive the Article 32 Hearing

Frankly, sometimes the strategic move is just to bypass the Article 32 hearing altogether. There are three reasons you might want to exercise this right:

  1. The probable cause standard for Article 32 hearings is a very low bar. It is highly unlikely that the PHO will recommend dismissal of the charges.
  1. The argument your attorney presents at the Article 32 hearing alerts the prosecution to the strong points and weaknesses on both sides of the case. They will then have months to prepare accordingly.
  1. The PHO might find other, uncharged misconduct in the file and recommend the preferral of additional charges. It’s possible to walk into an Article 32 hearing facing two or three charges and walk out with triple that number!

Your attorney will let you know if going through with the Article 32 hearing is the right move for you or not.

If you’re facing an Article 32 hearing, Capovilla & Williams is here to help: (404) 496-7974.

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