PREPARATION FOR PRETRIAL HEARING

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

Hearing Date

Once the preheating 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, All parties should be present; the accused, lawyers, a reporter (if one is used), and witnesses. But witnesses must be examined one-by-one, and no witness should be permitted to hear another testify.

Witnesses

All reasonably available witnesses 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 must testify when the significance of the testimony outweighs the difficulty, expense, delay, and effect on military operations. This balancing test means, therefore, as the importance of the testimony increases, a greater difficultly, expense, delay, or effect on military operations can be withstood. 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 concerning availability. For military witnesses, the immediate commanding officer 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. But 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.

Statements

The pretrial investigation officer has a number of alternatives to live testimony. When a witness is not reasonable available, and even if the defense objects, the pretrial investigation officer may consider sworn statements of witnesses. 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 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. The accused has the right to offer either sworn or unsworn testimony. Also, the statements of witnesses who testify at the hearing should be obtained under oath if undue delay will not result. For this purpose, the pretrial investigation officer is authorized to administer oaths.

Rules of Evidence

The rules of evidence applicable to trial by court-martial do not strictly apply at a pretrial investigation. And the pretrial investigation officer need not rule on objections raised by counsel except in procedural matters. This normally means that objections of counsel are merely noted on the record. Since the rules of evidence do not strictly apply, cross-examination of witnesses maybe very broad and searching and should not be unduly restricted.

Post-hearing Procedures

After the hearing is completed, the investigating officer's report (DD Form 457) is prepared and submitted to the commanding officer who directed the investigation. The commanding officer considers the investigating officer's recommendation as to disposition, but may dispose of the charges as he or she sees fit. If the commanding officer deems a general court-martial is appropriate but lacks the authority to convene such a court-martial, then the report must be forwarded to the area coordinator unless otherwise directed from the general court-martial convening authority in the commanding officer's chain of command.

Forwarding of the report is accomplished by endorsement that includes the recommendation of the officer directing the pretrial investigation, the recommendations of the investigating officer, a detailed chronology of events in the case, and any comments deemed appropriate. A sample endorsement is shown in figure 5-3.

If the command who ordered the investigation is also a general court-martial convening authority, he or she may refer the case to trial by general court-martial if the charges are warranted by the evidence and such disposition is appropriate.

Pretrial Advice

Before a case is referred to a general court-martial, the convening authority's staff judge advocate must review the case and prepare a written legal opinion on the sufficiency of the evidence and advisability of trial. This written legal opinion is referred to as the pretrial advice.

The pretrial advice of the staff judge advocate includes a written and signed statement of the following:

. Whether each specification on the charge sheet alleges an offense under the UCMJ 

. Whether each allegation is substantiated by the evidence indicated in the Article 32 report of investigation 

. Whether a court-martial would have jurisdiction over the accused and the offense(s)

Figure 5-3.-Sample endorsement on Article 32 investigating officer's report.

l A recommended action to be taken by the convening authority

The staff judge advocate is personally responsible for the pretrial advice and must make an independent and informed appraisal of the charges and evidence in order to render the advice. Another person may prepare the advice, but the staff judge advocate is responsible for it and must sign it personally.

The advice need not set forth the underlying analysis or rationale for its conclusions. Ordinarily, the charge sheet, forwarding letter and endorsements, and report of investigation are forwarded with the pretrial advice. When appropriate, the pretrial advice should include a brief summary of the evidence, discussion of significant aggravating, extenuating, or mitigating factors, and any other recommendations. There is no legal requirement to include such information, however, and the failure to do so is not an error. Lastly, it should be noted that the legal conclusions reached by the staff judge advocate are binding on the convening authority, whereas the recommendation is not.