GENERAL COURT-MARTIAL DEFENSE
A general court-martial (GCM) is the criminal court proceeding reserved for the most serious military criminal offenses under the Uniform Code of Military Justice (UCMJ). The GCM consists of at least five court members, one third of whom may be enlisted service members if the accused is an enlisted service member. An accused can waive the right to have members and can request trial by a military judge. The request for trial by judge alone can be denied in the exercise of the sound discretion of the military judge. An accused can be found guilty by a court-martial with members only if two thirds of the members vote guilty.
ARTICLE 32 INVESTIGATION
A service member cannot be tried by a GCM unless there is a pretrial investigation conducted by an investigating officer who will prepare a report of conclusions and recommendations. The investigating officer shall recommend that the charges or specifications be referred to a GCM if the investigating officer has reasonable grounds to believe the accused service member has committed the offense alleged in the charge or specification.
The accused service member has the following rights at an Article 32 pretrial investigation:
- Right to be informed of the charges under investigation;
- Right to be present when evidence is presented at the investigation;
- Right to know the identity of the accuser;
- Right to be represented by counsel;
- Right to be informed of witnesses and evidence known to the investigating officer;
- Right to be informed of the purpose of the investigation;
- Right to be informed of the right against self-incrimination;
- Right to cross examine witnesses against the accused;
- Right to present witnesses on the accused’s behalf;
- Right to have all evidence in possession of military authorities produced at the investigation;
- Right to present any evidence in defense, mitigation or extenuation ;
- Right to make a statement in the accused’s behalf.
RIGHT TO COUNSEL
The accused has a right to have legal counsel detailed to represent him or her at a special or general court-martial; however, there is no right to counsel at a summary court-martial. The accused service member may hire his or her own choice of legal counsel and still use legal counsel assigned to represent the accused.
MAKE THE RIGHT DECISIONS
If your command has informed you that it intends to conduct an Article 32 investigation, you should consult a civilian criminal defense attorney who was a former military JAG attorney. An experienced military defense attorney can give you the right advice on exercising rights you have at an Article 32 hearing.
It is critical you make the right decisions about what rights you should exercise at the hearing. Rights such as presenting witnesses and other evidence, testifying under oath, invoking your Fifth Amendment constitutional right against self-incrimination, requesting that the Government produce all evidence and witnesses reasonably available and presenting a defense may influence the investigating officer to report conclusions and recommendations favorable to you. Although an investigating officer’s recommendation not to refer charges to a GCM is not binding on the commanding officer, it certainly will be given substantial weight and possibly convince your commanding officer not to refer charges to a GCM.
USE THE ARTICLE 32 AS A DISCOVERY OPPORTUNITY
An experienced military attorney will know how to use the Article 32 hearing as a means of discovering all evidence your command may potentially use against you at a court-martial. This will enable you to be thoroughly prepared to present a strong and successful defense. Do not procrastinate on your decision to hire counsel. You will want legal counsel of your choice to represent you at the pretrial stage of the command’s investigation. This will ensure that you will have more than sufficient time to prepare the best possible defense.
Please call my office, today, for a free, confidential consultation on how to properly exercise your rights at an Article 32 hearing.