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Pretrial Aspects of General Court-Martial
Legalman 3 & 2 - Navy Lawyer / Jag training guide manuals
Sample Appointing Order for an Article 32 Pretrial Investigation - 14134_221
Investigating  Officer The pretrial investigation is a formal one-officer investigation into alleged criminal misconduct. The investigating officer must be a commissioned officer who  should  be  a  major/lieutenant  commander  or above, or an officer with legal training. The advan- tages of appointing a judge advocate (when available) to act as the investigating officer are substantial, espe- cially in view of the increasingly complex nature of the  military  judicial  process.  Neither  an  accuser,  pro- spective  military  judge,  nor  prospective  TC  or  DC  for the same case may act as the investigating officer. Further, the investigating officer must be impartial and cannot previously have had a role in inquiring into the offenses involved; for example, the provost marshal or public affairs officer. Mere prior knowl- edge of the facts of the case will not, alone, disqualify a  prospective  investigating  officer.  If  such  knowledge imparts  a  bias  to  the  investigating  officer,  then  he  or she  obviously  is  not  the  impartial  investigator  re- quired by law. The law contemplates an investigating officer who is fair, impartial, mature, and with a judi- cial temperament. It is the responsibility of the CA to  see  that  such  an  officer  is  appointed  to  pretrial investigations. If it is necessary for a nonlawyer in- vestigating officer to obtain advice regarding the in- vestigation, that advice should not be sought from one who  is  likely  to  prosecute  the  case. 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 in- vestigating  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  inves- tigation 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 specifi- cally, an accused is entitled to be represented by civil- ian  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  nor- mally not detailed on the appointing order. An ac- cused is not entitled to more than one military counsel in the same case. Reporter There  is  no  requirement  that  a  record  of  the  pre- trial  investigation  proceedings  be  made,  other  than  the completion  of  the  investigation  officer’s  report.  Ac- cordingly,  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 investi- gation  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  correc- tions  should  be  noted.  The  pretrial  investigation  offi- cer 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 investi- gation.  Transportation  and  per  diem  expenses  are  pro- vided  for  both  military  and  civilian  witnesses. Witnesses are reasonably available and, therefore, subject to production, when the significance of the testimony and personal outweighs  the  difficulty, appearance of the witness expense, delay, and effect on 7-22

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