Counsel for the Government

While the pretrial investigation need not be an adversarial proceeding, current practice favors having the CA detail a lawyer to represent the interests of the government, especially when the investigating officer is not a lawyer. The assignment of a counsel for the government does not lessen the obligation of the investigating officer to investigate the alleged offenses thoroughly and impartially. As a practical matter, however, the presence of lawyers representing the government and the accused make the pretrial investigation an adversarial proceeding. Counsel for the government functions much as a prosecutor does at trial and presents evidence supporting the allegations contained on the charge sheet.

Defense Counsel

The accused's rights to counsel are as extensive at the pretrial investigation as at the GCM. More specifically, an accused is entitled to be represented by civilian counsel, if provided by the accused at no expense to the government, and by a detailed military lawyer, certified according to Article 27(b), UCMJ, or by a military lawyer of his or her own choice at no cost to the accused if such counsel is reasonably available. The detailed DC at a pretrial investigation must be a certified lawyer and be designated by the appointing order. Individual counsel, military or civilian, is normally not detailed on the appointing order. An accused is not entitled to more than one military counsel in the same case.

Reporter

There is no requirement that a record of the pretrial investigation proceedings be made, other than the completion of the investigation officer's report. Accordingly, a reporter need not be detailed. It is a common practice, however, to assign a reporter to prepare a verbatim record-particularly in complex cases. When such a record is desired, the CA may detail a reporter but such assignment is usually made orally and is not part of the appointing order.

APPOINTING ORDER

The order directing a pretrial investigation may be drafted in any acceptable form so long as an investigation is ordered and an investigating officer and counsel are detailed. A suggested format is shown in figure 7-4.

PREHEARING PREPARATION

When the pretrial investigation officer receives his or her order of appointment, he or she should first study the charge sheet and allied papers to become thoroughly familiar with the case. The charge sheet should be reviewed for errors and any needed corrections should be noted. The pretrial investigation officer should consult the accused, counsel, and the legal officer of the CA to set up a specific hearing date.

WITNESSES

All reasonably available witnesses who appear necessary for a thorough and impartial investigation are required to be called before the Article 32 investigation. Transportation and per diem expenses are provided for both military and civilian witnesses. Witnesses are reasonably available and, therefore, subject to production, when the significance of the testimony and personal appearance of the witness outweighs the difficulty, expense, delay, and effect on

Figure 7-4.-Sample appointing order for an Article 32 pretrial investigation.

military operations of obtaining the witness' appearance. This balancing test means that the more important the expected testimony of the witness, the greater the difficulty, expense, delay, or effect on military operations must be to permit nonproduction. Similar considerations apply to the production of documentary and real evidence.

For both military and civilian witnesses, the pretrial investigation officer makes the initial determination on availability. For military witnesses, the immediate CO of the witness may overrule the pretrial investigation officer's determination. The decision not to make a witness available is subject to review by the military judge at trial.

A civilian witness whose testimony is material must be invited to testify, although he or she cannot be subpoenaed or otherwise compelled to appear at the investigation. Thus, the pretrial investigation officer should make a bona fide effort to have such civilian witnesses appear voluntarily, offering transportation expenses and a per diem allowance if necessary.

STATEMENTS

The pretrial investigation officer has a number of alternatives to live testimony. When a witness is not reasonably available, even if the defense objects, the pretrial investigation officer may consider that witness' sworn statement. Unless the defense objects, a pretrial investigation officer may also consider, regardless of the availability of the witness, sworn and unsworn statements, prior testimony, and offers of proof of expected testimony of that witness.

Upon objection, only sworn statements may be considered. Since objections to unsworn statements are generally made, every effort should be made to get sworn statements. All statements considered by the pretrial investigation officer should be shown to the accused and the counsel. The same procedure should be followed with respect to documentary and real evidence.

TESTIMONY

All testimony given at the pretrial investigation must be given under oath and is subject to cross-examination by the accused and the counsel for the government. The accused has the right to offer either sworn or unsworn testimony. If undue delay will not result, the statements of the witnesses who testified at the hearing should be obtained under oath. In this connection, the pretrial investigation officer is authorized to administer oaths in connection with the performance of his or her duties.

RULES OF EVIDENCE

The rules of evidence applicable to trial by courtmartial do not strictly apply at the pretrial investigation, and the pretrial investigation officer need not rule on objections raised by counsel except where the procedural requisites of the investigation itself are concerned. This normally means that counsel's objections are merely noted on the record. Since the rules of evidence do not strictly apply, cross-examination of witnesses may be very broad and searching and should not be unduly restricted.

HEARING DATE

Once the prehearing preparation has been completed, the pretrial investigation officer should convene the hearing. The pretrial investigation is a public hearing and should be held in a place suitable for a quasi-judicial proceeding. Accused, counsel, reporter (if one is used), and witnesses should be present. Witnesses must be examined one by one, and no witness should be permitted to hear another testify.