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COURT OF INQUIRY
The court of inquiry is the traditional means by
which serious military incidents have beenn investigated.
Originally adopted by the British Army, it has remained
in its present form with only slight modifications since
the adoption of the Articles of War of 1786. A court of
inquiry is not a court in the sense of the term used today;
rather, it is a board of senior officers charged with
searching out, developing, assembling, analyzing, and
recording all available information about the incident
under investigation. When directed by the CA, the court
will offer opinions and recommendations about an
incident.
The court is convened by any person authorized to
convene a GCM or by any person designated by the
Secretary of the Navy (SECNAV). It consists of three
or more commissioned officers. When practical, the
senior member who is the president of the court should
be a least an O-4. All members should also be senior to
any person whose conduct is subject to inquiry. Legal
counsel, certified under Article 27(b), UCMJ, and sworn
under Article 42(a), UCMJ, appointed for the court and
under the direct supervision of the president of the court
assists in matters of law, presenting evidence, and in
keeping and preparing the record. Counsel does not
perform as a prosecutor, but must make sure all evidence
is presented to the court of inquiry.
The court is convened by a written appointing order,
the contents of which are much the same as those
discussed for fact-finding bodies not required to conduct
a hearing. The required contents, with an example, can
be found in JAGINST 5830.1, end (1).
All testimony is under oath (except for a person
designated as a party who makes an unsworn statement)
and transcribed verbatim.
Using a formal hearing
procedure, witnesses and evidence are presented in the
following order after opening statements are made:
counsel for the court; a party; counsel for the court in
rebuttal; and, subsequently as requested by the court.
After testimony and statement by the parties, if any,
counsel for the court and counsel for the parties may
present arguments.
Although a court of inquiry uses a formal hearing
procedure, it is administrative and not judicial.
Therefore, as in any other administrative fact-finding
body, the Military Rules of Evidence (Mil.R.Evid.) will
not be followed, except for (1) 301, self-incrimination,
(2) 302, mental examination, (3) 303, degrading
questions, (4) 501-504, dealing with privileges, (5) 505,
classified information, (6) 506, government information
other than classified information, and (7) 507,
informants.
A court of inquiry has the power to subpoena
witnesses who may be summoned to appear and testify
before the court the same as at trial by court-martial.
INVESTIGATION REQUIRED TO
CONDUCT A HEARING
The investigation required to conduct a hearing is
intended to be an intermediate step between an
investigation not requiring a hearing and a court of
inquiry. Such investigations are used, for example,
when a hearing with sworn testimony is desired or
designation of parties may be required, but only a single
IO is necessary to conduct the hearing.
The principal characteristics of an investigation
required to conduct a hearing include the following:
~ The investigation is convened by any person
authorized to convene a general or special
court-martial.
@ It consists of one or more commissioned offficers.
The investigation should normally be composed of
a single officer; however, if multiple members are
considered desirable, a court of inquiry should be
considered. Usually, it consists of one commissioned
officer, but a Department of the Navy (DON) civilian
employee may be used if appropriate. The IO should be
senior to any designated party and at least an O-4 or
GS-13. It may consist of two or more commissioned
officers with the senior member who will be the
president of the board at least an O-4. If appropriate,
warrant officers, senior enlisted, or DON civilian
employees may be assigned as members, in addition to
at least one commissioned officer. No member of the
board should be junior in rank to any person whose
conduct or performance of duty is subject to inquiry.
Legal counsel should be appointed for the
proceedings, with duties and requirements identical to
those for a court of inquiry. The investigation is
convened by written appointing order. The required
contents, with an example, can be found in JAGINST
5830.1, encl (2). All testimony is under oath and all
proceedings are transcribed verbatim. A formal hearing
procedure, similar to the court of inquiry is used. The
CA may designate those persons whose conduct is
subject to inquiry or who have a direct interest in the
subject inquiry as parties in the convening order. The
CA may authorize the fact-finding body to designate
parties during the proceedings. Unless convened to
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