A Comparison of an Article 32 Investigation with a Federal Grand Jury (And Why the Former Prevails)

My recent military law class helped me to understand the judicial system employed by our armed forces. Many similarities exist between the judicial system in the armed forces and the Article III courts, but differences stand out as well. One such difference is that between an Article 32 investigation and its civilian counterpart, a federal grand jury. An Article 32 investigation provides more rights and opportunities for the accused than a federal grand jury. With that in mind, and an eye on overarching judicial policy, I concluded that the Article 32 investigation is better.

The comparison of the two judicial systems stems from the fact that both are designed to avoid trials on baseless charges. Beyond the similarity of this broad rationale for each process, however, little is in common between the two. An Article 32 investigation results in a non-binding recommendation, is limited to the charges on the charge sheet, and provides that the accused and counsel may be present. Conversely, a grand jury session’s indictment is final, allows any charges to be found, and neither the accused nor his or her counsel is allowed at the session.

First, in an Article 32 investigation, an assigned officer, after reading a report on the crime, hearing both sides argue, and listening to witnesses, determines whether reasonable grounds exist to believe the accused committed the offense charged. This determination is then given to a higher-ranking officer in the form of a recommendation. That officer then also reviews the material and decides if the case should actually go to trial.

On the other hand, once a government prosecutor has an indictment from the grand jury, it is final, and the government may move forward. The Article 32 investigation is thus favorable because it adds a layer in the form of a second set of reviewing eyes before the case is sent to trial.

Second, during an Article 32 investigation only the specific charges of which an individual has been accused are addressed, compared to a grand jury that can indict for anything it believes there is evidence, including things that come up during witness questioning. In an Article 32 investigation, the accused faces a limited set of charges, as opposed to a grand jury, where the accused faces indictment on any crimes the jury finds may have been committed by him or her, whether they are the reason for the session or come up during testimony. This comparison again greatly favors the accused in the military system.

The third, and key, difference between an Article 32 investigation and a grand jury session is that an Article 32 investigation allows the accused and his or her counsel to be present while the grand jury session does not. Along with the benefit of seeing and hearing the government prosecutor’s case, the accused has the benefit of being able to call his or her own witnesses, give evidence, and cross-examine witnesses. This provides the accused with an opportunity to go more in depth about learning the government’s case, hear and question witness testimony (which provides grounds to impeach the testimony at trial if the testimony changes), and make a case for him or herself to prove innocence or provide mitigating evidence.

The accused in civilian court, at a grand jury session, has none of these rights. The ability to be present at a hearing on the merits of the evidence is greatly beneficial to the accused. Sol Wachtler, a former Chief Judge of the New York Court of Appeals, famously said that a grand jury would “indict a ham sandwich” if that was what a prosecutor wanted. Joshua A. Dressler & George C. Thomas III, Criminal Procedure Prosecuting Crime 840 (4th ed. 2010). Wachtler’s quote illustrates the ease with which a prosecutor can obtain an indictment with no accused or counsel present, and in so doing demonstrates the benefit to having the accused at the session. Because the accused has another opportunity to get his or her case dismissed, and because it can be used as a discovery tool, an Article 32 investigation is much more beneficial to the accused than a Grand Jury session.

In light of the dignity to be afforded accused individuals and in light of accuracy concerns, the Article 32 investigation is simply better. By adding another level of review before going to trial, and allowing the accused to defend him or herself before the case is brought to trial, not only does the accused have an extra chance to avoid the stigma attached to being brought to trial (whether guilty or innocent), but there is also a greater chance of accuracy at this early stage. An individual’s dignity should be worth the effort.

 

 

 

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