Article 32 Investigation Waivers – When Does It Make Sense

One purpose of this blog is to comment on trends in military justice. One of the trends I’ve seen lately is military defense counsel advising clients to waive their right to the Article 32 Investigation – particularly in sexual assault cases.As a civilian lawyer practicing exclusively military law, I have a unique perspective. I’m doing cases across the world involving every branch of service. I’m interacting – at one point or another – with judge advocates at most installations. I’m seeing the value or the Article 32 Investigation play out against a wider range of situations and decision-makers.Over the course of the year, I have repeatedly seen risk-averse military counsel advise clients to waive their right to the 32 because they anticipated a guilty plea and/or couldn’t find the value in the Article 32 Investigation. Their thought process often accounts for recent changes to the Article 32 Investigation rules. A recent law review article explains those changes. The important changes include rules that do not require the alleged victim’s to testify. Also, there has been a shift in philosophy such that an investigation is no longer a discovery tool of the defense. In other words, the defense cannot use the investigation to learn more about the case. Congress wanted to make the hearing simply a probable cause determination.Regardless of the motivations of Congress, our success post-rule-changes has been very positive. Contesting court-martial charges often works out more favorably than taking a deal. Each case – of course – is different. But, I like the numbers.Many defense counsels fail to recognize that there is still value in Article 32 Investigation for the following reasons:1 – Sometimes alleged victims change their minds last minute and decide to testify. I saw that happen in January of this year. We were able to cross-examine her;2 – What happens behind the scenes is often more valuable than what is on the record. I have a dedicated period of time to talk to witnesses off-the-record without prosecutors around;3 – I can often get non-victim witnesses to testify on the record at the hearing. When that happens, their testimony is locked in. If something happens to them and they are unavailable for trial, we have a transcript of their testimony;4 – We are often able to convince Investigating Officers to recommend dismissing charges or reducing charges; and,5 – Our track record in cases where Investigating Officers recommend dismissing charges is overwhelmingly favorable.As a trial attorney, I almost never want to waive a client’s rights. To that end, I’ve come up with guidelines over time to help in that decision – especially when prospective clients call having already received advice to waive the hearing. We don’t waive an Article 32 Investigation until answering the following considerations:1 – Is there legitimate exposure to additional charges at the Article 32 Investigation?2 – Are there any witnesses at all that we can call that can be locked in for trial?3 – Are there preexisting good faith negotiations for a favorable deal?4 – is there a cost-benefit analysis that is unfavorable?5 – Is there investigation that can be accomplished off-the-record?Before waiving rights at an Article 32 Investigation, we always example those issues.