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2008 edition - Fort Sam Houston - U.S. Army

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App. 21, R.C.M. 405(h) APPENDIX 21<br />

divided into two oaths, one for the witness testifying at the investigation,<br />

the second to be given when the witness subscribes to a<br />

written summary after the hearing. The second oath is described<br />

in the second paragraph in the discussion. Note that instead of a<br />

second oath, the witness could be requested to sign a statement<br />

with the express proviso that the signature is made under penalty<br />

of perjury. See paragraph 57 of Part IV and Analysis. The<br />

second and third paragraph in the discussion are based on the<br />

second paragraph of paragraph 34 d of MCM, 1969 (Rev.). The<br />

admonition concerning the preservation of substantially verbatim<br />

notes and tapes of testimony at the end of the second paragraph<br />

has been added to avoid potential Jencks Act problems, 18 U.S.C.<br />

§ 3500. See R.C.M. 914 Analysis.<br />

The fourth paragraph in the discussion of subsection (1) is<br />

based on United States v. Pruitt, 48 C.M.R. 495 (A.F.C.M.R.<br />

1974). Cf. United States v. Washington, 431 U.S. 181 (1977).<br />

Subsection (2) is new and is intended to promote the early identification<br />

of possible defects in the investigation so that they can be<br />

corrected promptly. See also subsection (k) of this rule. Subsection<br />

(2) clarifies the responsibility of the investigating officer as a<br />

judicial officer. See generally United States v. Collins , 6 M.J.<br />

256 (C.M.A. 1979); United States v. Payne, supra. Requiring<br />

objections to be made to the investigating officer ensures that<br />

they will be placed in proper channels, so that they may be acted<br />

upon promptly. Many will concern matters which the investigating<br />

officer can rectify. See generally United States v. Roberts, and<br />

United States v. Chestnut, both supra. Other matters will fall<br />

within the province of the commander who directed the investigation,<br />

in whom most pretrial judicial authority reposes at this stage.<br />

S e e g e n e r a l l y U n i t e d S t a t e s v . N i x , 1 5 U . S . C . M . A . 5 7 8 , 3 6<br />

C.M.R. 76 (1965). Nothing in R.C.M. 405 is intended to restrict<br />

the authority of the commander who directed the investigation to<br />

resolve issues involved in it, as long as that commander does not<br />

encroach upon the investigating officer’s discretion and ability to<br />

personally make conclusions and recommendations.<br />

Subsection (3) is new and is based on MacDonald v. Hodson,<br />

19 U.S.C.M.A. 582, 42 C.M.R. 184 (1970). See also R.C.M. 806<br />

for examples of some reasons why a pretrial investigation hearing<br />

might be closed. Fed.R.Crim. P.6 is generally inapplicable due to<br />

its different nature and purposes; it requires closed proceedings.<br />

S u b s e c t i o n ( 3 ) i s n o t i n t e n d e d t o e x p r e s s a n y p r e f e r e n c e f o r<br />

closed or open hearings.<br />

(i) Military Rules of Evidence. This subsection is solely a crossreference<br />

to the Military Rules of Evidence. Mil. R. Evid. 412,<br />

which concerns testimony of victims of sexual offenses at trial,<br />

does not apply at Article 32 hearings. However, there may be<br />

circumstances in which questioning should be limited by Mil. R.<br />

Evid. 303, which prohibits requiring degrading testimony in pretrial<br />

investigations and elsewhere. The privacy interests of the<br />

victim may also be protected by closure of the Article 32 hearings<br />

during appropriate periods. See subsection (h)(3) of this rule.<br />

The first paragraph of the discussion is consistent with present<br />

practice. It is added to give additional guidance not included in<br />

paragraph 34 of MCM, 1969 (Rev.). It is also consistent with<br />

General civilian practice. See Office of the United States Attorney<br />

for the Southern District of Ohio, Proving Federal Crimes 3-3<br />

(1980).<br />

1993 Amendment: The amendment to R.C.M. 405(i) makes the<br />

p r o v i s i o n s o f M i l . R . E v i d . 4 1 2 a p p l i c a b l e a t p r e t r i a l<br />

A21-26<br />

investigations.<br />

(j) Report of investigation. This subsection is based on paragraphs<br />

34 d and e of MCM, 1969 (Rev.). The provision for<br />

informal reports in paragraph 34 f of MCM, 1969 (Rev.) has been<br />

deleted. Because R.C.M. 405 applies only if charges are ultimately<br />

referred to a general court-martial, there is no need to<br />

describe informal reports. It if becomes apparent before completion<br />

of the investigation that charges will not be referred to a<br />

general court-martial, no report need be prepared unless the commander<br />

who directed the investigation requires it. In other cases a<br />

formal report will be necessary.<br />

Subsection (1) is based on Article 32(a) and (b) and paragraph<br />

34 e of MCM, 1969 (Rev.).<br />

Subsections (2)(A) through (E) are based on Article 32(b) and<br />

paragraph 34 e of MCM, 1969 (Rev.). Subsection (2)(F) is new<br />

but is consistent with current practice and with the need to account<br />

for pretrial delays in relation to speedy trial issues. Subsections<br />

(2)(G) and (H) are based on Article 32(a) and paragraph 34<br />

a of MCM, 1969 (Rev.). The probable cause standard is based on<br />

United States v. Engle, 1 M.J. 387, 389, n. 4 (C.M.A. 1976);<br />

Hearings on H.R. 2498 Before a Subcomm. of the House Comm.<br />

on Armed Services, 81st Sess. 997 (1949). Subsection (2)(I) is<br />

based on Article 32(a) and paragraph 34 e(6) of MCM, 1969<br />

(Rev.).<br />

Subsection (3) is based on the first sentence of paragraph 34 e<br />

of MCM, 1969 (Rev.) which implemented the requirement of the<br />

last sentence of Article 32(b). Subsection (3) leaves the mechanics<br />

of reproduction and distribution of the report to the Secretary<br />

concerned, or, in the absence of Secretarial regulations, to the<br />

commander concerned. Subsection (4) is new and is intended to<br />

encourage the early identification of possible defects in the report<br />

so that they can be corrected promptly when necessary. See also<br />

subsection (k) and Analysis.<br />

( k ) W a i v e r . T h e f i r s t s e n t e n c e i s b a s e d o n A r t i c l e 3 4 ( a ) , a s<br />

a m e n d e d . M i l i t a r y J u s t i c e A c t o f 1 9 8 3 , P u b . L . N o . 9 8 - 2 0 9 , §<br />

4(a)(2), 97 Stat. 1393 (1983), which expressly permits waiver of<br />

the Article 32 investigation. This is consistent with previous practice.<br />

See United States v. Schaffer, 12 M.J. 425 (C.M.A. 1982).<br />

The remainder of this subsection is also new to the Manual for<br />

Courts-Martial. Along with subsections (h)(2) and (j)(4) of this<br />

rule, it is intended to promote efficiency in the pretrial process by<br />

placing the burden on the defense to raise objections when they<br />

can most easily be remedied, instead of waiting until trial. Recent<br />

decisions are consistent with this approach. See United States v.<br />

Clark, 11 M.J. 179 (C.M.A. 1981); United States v. Cumberledge,<br />

6 M.J. 203 (C.M.A. 1979); United States v. Cruz, 5 M.J. 286<br />

(C.M.A. 1978); United States v. Chuculate, supra. See also Article<br />

34(d). Because the accused always has the right to be represented<br />

in the investigation by qualified counsel, this burden is<br />

appropriate. The amendment of Article 32(b) (Military Justice<br />

Amendments of 1981, Pub.L. No. 97-81, § 4, 95 Stat. 1085,<br />

1088) guarantees that qualified counsel will be detailed to represent<br />

the accused for the investigation.<br />

The defense may renew before the military judge any objection<br />

f o r w h i c h i t h a s n o t r e c e i v e d s a t i s f a c t o r y r e l i e f . S e e R . C . M .<br />

905(b)(2); R.C.M. 906(b)(3).<br />

The last sentence in the discussion is based on United States v.<br />

Cumberledge and United States v. Chuculate, bothsupra.

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